Appeal of A.D.J., on behalf of her children A.D. and M.J., from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 16,973

(September 20, 2016)

Jaspan Schlesinger LLP, attorneys for respondent, Joanna M. Caccavo, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her children, A.D. and M.J. (“the students”), are not district residents.  The appeal must be sustained.

According to petitioner, in the summer of 2015, petitioner and the students moved in with petitioner’s friend into a residence located within respondent’s district (“in-district address”).[1]  During the 2015-2016 school year, petitioner’s daughter, A.D., was enrolled in fifth grade in respondent’s elementary school.  The record contains a 2015-2016 Universal Prekindergarten Application for petitioner’s son, M.J., completed by petitioner and dated September 15, 2015.  Although the record is somewhat unclear, it appears that petitioner’s son was never enrolled in respondent’s district, as the record references kindergarten registration appointments, but indicates that he attended a prekindergarten program at a local nursery school.    

On September 18, 2015, an administrative assistant in the district’s personnel office (“assistant”) raised concerns that the students did not actually reside at the in-district residence.  According to respondent, further “doubts” regarding the students’ residency were raised on January 6, 2016, when petitioner notified the elementary school that her daughter would be taking a “cab” home from school every day.  On February 3, 2016, petitioner attempted to register her son for kindergarten in respondent’s district but did not bring proof of residency or her driver’s license.  The district subsequently commenced a residency investigation, which included surveillance at the in-district address and petitioner’s parents’ out-of-district residence (“out-of-district address”) on four dates: March 9, 10, 15 and 17, 2016. 

On March 9, 10 and 17, 2016, surveillance commenced at 6:00 a.m. at the in-district address and continued to the out-of-district address, where petitioner’s daughter was observed being picked up by a gray Pontiac[2] shortly before 8:00 a.m. and dropped off at respondent’s elementary school.  On March 9, 10, and 15, 2016, surveillance was also conducted after school hours.  On all three days, the students were observed at the out-of-district address.  On one occasion, March 15, 2016, the students were seen exiting a taxi cab at the out-of-district address.

By letter dated April 5, 2016, respondent’s director of business services (“director”) notified petitioner that the district had reason to believe that her children were not district residents and, therefore, were not entitled to attend respondent’s schools tuition-free and would be excluded effective April 29, 2016.  In addition to the details of the surveillance, the letter listed other specific information that the district used to make its determination that petitioner and her children resided at the out-of-district address.  Petitioner was provided an opportunity to submit documentation by April 18, 2016, regarding the students’ right to attend respondent’s schools.

By letter dated April 13, 2016, petitioner provided an itemized reply to each of respondent’s detailed allegations as well as documentation to support her claim of residency at the in-district address.  By letter dated April 20, 2016, respondent’s director notified petitioner of the district’s determination that the information submitted by petitioner did not refute the evidence obtained by the district during the course of its investigation, nor did it substantiate a claim of residency within the district.  The letter also stated that it was the district’s final determination that the students were not district residents, and therefore were not entitled to attend school in respondent’s district tuition-free and the students would not be eligible to attend school after May 5, 2016.  The letter advised petitioner of her appeal rights.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 20, 2016.

Petitioner asserts that she and her children reside at the in-district address and, therefore, her children are entitled to attend respondent’s schools tuition-free. 

Respondent argues that petitioner and the students are not - and never were - district residents and that its determination was not arbitrary and capricious.

First, I must address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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).

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).

In support of her petition, petitioner includes a Landlord/Owner Affidavit as well as statements from the owner of the in-district address and her daughter, petitioner’s friend.  She also submits explanations for the results of the surveillance conducted on March 9, 10, 15 and 17, 2016. 

In making its determination, respondent relied on its surveillance report; petitioner’s refusal of the district’s bus transportation and the use of a taxi cab service for after school pick-up; the fact that the out-of-district residence is owned by petitioner’s parents and that her voter registration is active at that address; a LexisNexis Accurint search; a search of www.reversephonelookup.com; and petitioner’s son’s birth certificate and immunization record. 

Respondent’s investigator conducted surveillance on four occasions between March 9 and 17, 2016.  On three occasions, March 9, 10, and 17, 2016, the investigator observed petitioner’s daughter being picked up from the out-of-district address in a gray Pontiac; after school on March 9 and 10, 2016, the students were observed at the out-of-district address; and on March 15, 2016, they were observed exiting a taxi cab at the out-of-district address.

However, on this record, I do not find respondent’s limited surveillance to be persuasive evidence that petitioner and the students do not reside at the in-district address.  Indeed, petitioner states that on March 2, 2016, her husband was sentenced to one year in jail.  Petitioner explains that she needed emotional support, and therefore, she and the students stayed with her parents at the out-of-district residence from March 2, 2016 until after dinner on March 9, 2016.  Petitioner also submits emails from the jail confirming visitation appointments with her husband scheduled for March 10 and 17, 2016.  She states that on those dates she dropped off the students at the out-of-district address at 6:00 a.m. so that she would arrive at the jail one hour prior to her scheduled visit.  Indeed, the emails provided by petitioner indicate that her visitation appointments were scheduled to begin at 8:00 a.m. and advised that she should arrive 40 minutes prior to each scheduled visit. 

With respect to petitioner’s refusal of school district bus transportation, petitioner asserts that her roommate drives petitioner’s daughter to school because the roommate drives her own son to the same school.  Petitioner states that while at the out-of-district address, this arrangement continued.  This explains the surveillance conducted on March 9, 10, and 17, 2016, which revealed petitioner’s daughter being picked up at the out-of-district address, where petitioner admits the students were, by a vehicle registered to the out-of-district residence, and driven to school.[3]  

Petitioner also states that she works from 10:30 a.m. until 7:00 p.m. and that her mother cares for the students after school so she elected to have the students transported directly to her parents’ house by car service. This explains her refusal of afternoon bus transportation and further, why the students were observed at the out-of-district address after school on March 9,[4] 10 and 15, 2016.  When questioned by school district staff, petitioner’s daughter stated that after the taxi cab driver picks her up, they pick up her younger brother and go to the out-of-district address, where their grandmother watches them.   

On this record, I find that respondent’s limited surveillance is not dispositive, in light of petitioner’s explanations.  Respondent argues that petitioner’s “explanations for the investigator’s observations were extremely convoluted, implausible and lacked substantiation.”  However, respondent has not provided any evidence to refute petitioner’s explanations.

The record also includes limited documentary evidence.  Petitioner admits that the out-of district residence is the home of her parents, that she resided there “off and on for most of her life” and that she never changed her voter registration.  As proof of residency, petitioner submits a Landlord/Owner Affidavit and statements from her roommate as well as from the owner of the in-district address, attesting that petitioner and the students reside at the in-district address.  Respondent attempts to discredit the affidavit and argues that the affidavit only lists petitioner and the students as living at the property but did not include that there is “another parent and student registered at that same address” and is therefore incomplete.  I find this argument unpersuasive.  Petitioner has explained that the daughter of the in-district address property owners also lives there with her son.  Petitioner states that she thought that when completing the landlord affidavit, only members of her immediate family had to be listed.  However, the affidavit attests that petitioner and the students live at the in-district residence and is signed and notarized.  Petitioner also submits a signed statement from her roommate that states that petitioner and the students live with her and her son in her parent’s house at the in-district residence.

Respondents rely on two internet searches: a LexisNexis Accurint search and a search at www.reversephonelookup.com.  Respondent argues that the LexisNexis Accurint search lists petitioner’s “probable” address as the out-of-district residence and that a search of petitioner’s phone number shows her living in the Spring Valley area.  I find the LexisNexis search inconclusive.  The report includes a disclaimer that the “data sources used on reports have errors.  Data is sometimes entered poorly, processed incorrectly and is generally not free from defect.”  I also find the results of the reverse phone look up search unpersuasive.  Although the search indicates that the phone number entered is associated with Spring Valley, I note that the phone number used for the search is not petitioner’s phone number but that of her parents.       

Respondent argues that the birth certificate and immunization record that petitioner brought to her son’s kindergarten registration appointment list the out-of-district address as his address.  However, the birth certificate is from 2011 and the immunization record is current as of May 2015.  Petitioner states that she moved to the in-district address in the summer of 2015; therefore, these records pre-dated her move to the in-district address. 

Although not submitted with the petition, the record includes an Optimum Cable name change/account transfer form transferring a cable account at the in-district address from the property owner to petitioner dated August 26, 2015, which, as respondent notes, is inconsistent with petitioner’s explanation in her April 13, 2016 letter that she took over financial responsibility for the cable bill upon moving into the in-district address in or about July 2015.  While respondent questions petitioner’s motives, and labels the switch as a “sham,” the record contains a letter from Cablevision, dated August 28, 2016, addressed to petitioner at the in-district address confirming the change.  Respondent argues that the letter did not indicate that a new account was created.  While not dispositive, I find that changing financial responsibility for a bill, such as cable, supports a claim of residency.  The fact that a new account was not created is not dispositive.

While I acknowledge respondent’s credibility concerns, under these circumstances, the totality of the evidence in the record does not support the district’s decision.  While petitioner’s documentation showing proof of residency within the district is limited, documents relied on by respondent to show that petitioner resides at the out-of-district address are inclusive or outdated.  Petitioner also submits reasonable explanations for the limited surveillance conducted by respondent.  

Therefore, while respondent is free to conduct further residency investigation, on the record before me, I find that petitioner has met her burden of proof and that there is insufficient evidence in the record to support respondent’s determination that petitioner is not a district resident.

THE APPEAL IS SUSTAINED. 

IT IS ORDERED that respondent permit petitioner’s children to attend school in the Clarkstown Central School District without payment of tuition.

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