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Decision No. 16,940

Appeal of MARIE FRANCE AUGUSTE, on behalf of her daughter BREANNAH BERNARD, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,940

(August 4, 2016)

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District (“respondent board”) that her daughter is not a resident of the district and is, therefore, not entitled to continue to attend its schools.  The appeal must be dismissed.

Petitioner’s daughter, Breannah, has been enrolled in respondent’s schools since September 2012.  It is undisputed that, at the time of enrollment, petitioner and her daughter lived in Baldwin (“in-district address”).   The record indicates that, in or about March 2016, respondent became aware that petitioner had moved to Freeport, which is outside of respondent’s district (“out-of-district address”).  As a result, respondent commenced an investigation into petitioner’s residency, which included obtaining petitioner’s credit history report and Department of Motor Vehicles records, which listed the Freeport address.  Respondent also retained a private security firm to investigate both the in-district and out-of-district addresses.  Surveillance was conducted at the in-district address on seven separate weekday mornings in March 2016, during which Breannah was never seen at the in-district address.  During that time, surveillance was also conducted at the out-of-district address.  On five out of eight mornings of surveillance, the student was observed at the out-of-district address.

By letter dated March 30, 2016, respondent’s director of pupil services (“director”) notified petitioner that Breannah’s residency was in question and provided her with an opportunity to meet to discuss Breannah’s residency on April 7, 2016.  When petitioner did not respond or show up at the meeting, the director and the district registrar called petitioner.  Respondent indicates that, during that conversation, petitioner indicated that her sister lived at the in-district address and that she had recently purchased the home at the out-of-district address.  Following the phone conversation, respondent conducted surveillance at both addresses on six additional weekday mornings in April.  The record indicates that Breannah was not seen at the in-district address on any of those six mornings and that she was seen exiting the out-of-district address on three of the six mornings of surveillance.

By letter dated April 20, 2016, the director informed petitioner that Breannah was not eligible to attend respondent’s schools tuition-free and that she would be excluded from attendance as of June 24, 2016.  This appeal ensued.  Petitioner’s request for interim relief was deemed to be moot on May 26, 2016 as the district permitted Breannah to attend school for the remainder of the 2015-2016 school year.

Petitioner seeks a determination that Breannah is entitled to attend its schools for the 2016-2017 school year.  Respondent contends that petitioner fails to state a claim upon which relief may be granted and that petitioner admits that she resides outside the district and, thus, Breannah was properly excluded from respondent’s schools at the end of the 2015-2016 school year.

Education Law §3202(1) provides, in pertinent part, as follows:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On the record before me, I am unable to conclude that petitioner has met her burden of proof.  Petitioner does not dispute that she no longer lives in respondent’s district and admits that she resides at the out-of-district address.  Rather, petitioner indicates that she was forced to leave the in-district address in January 2016 due to circumstances beyond her control, and requests that respondent allow Breannah to attend the district’s schools for the 2016-2017 school year because it is her senior year.  Petitioner also claims that she and Breannah have moved several times previously due to petitioner’s past military service and that it would be detrimental to Breannah to have to enroll in a new district for her senior year.  While I am sympathetic to petitioner’s concerns, given petitioner’s admission and the evidence submitted by respondent, on this record, petitioner has failed to carry her burden of establishing her physical presence and intent to remain in respondent’s district.  Accordingly, I cannot find respondent’s determination that Breannah is not a district resident to be arbitrary and capricious.

Finally, I note that, although not set forth in her verified petition, in an unsworn letter attached thereto, petitioner states that she “even offered to pay tuition so that Breannah can continue to attend Baldwin High School for her senior year and was told there are no provisions in place for such a request.”  Respondent asserts in its verified answer that petitioner did not so inquire and the director avers that petitioner “did not inquire with [his] office regarding her ability to pay tuition so that the student could attend the District as a non-resident student.”  Petitioner submits no reply or other evidence to refute respondent’s assertions.  Therefore, to the extent petitioner intends to argue that respondent improperly denied her request for Breannah’s admission under its non-resident tuition policy, I find no evidence that petitioner made such a request prior to initiating this appeal.

Nevertheless, respondent’s director submits an affidavit herein averring that “[w]hile the District has a Non-Resident Students policy that provides for students to attend as non-residents upon the payment of tuition in limited circumstances, the District, in its discretion, has decided not to permit the student to attend as a non-resident student for the 2016-2017 school year.”  As respondent notes, pursuant to Education Law §3202(2), “[n]onresidents of a district, if otherwise competent, may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board.”  Accordingly, respondent’s Board Policy No. 5150 permits the admission of nonresident students to respondent’s schools under certain enumerated circumstances, stating that “[e]xceptions shall be made only in [certain] circumstances...” (emphasis supplied).  All determinations made by respondent regarding its nonresident tuition policy must be made in accordance with such policy and the exceptions and criteria set forth therein (see Appeal of Priestley, 35 Ed Dept Rep 293, Decision No. 13,546; Appeal of Curtin, 27 id. 446, Decision No. 12,005).  Petitioner may challenge such determination in a subsequent appeal should she wish to do so.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Breannah’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

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