Appeal of R.E., on behalf of his son R.E., Jr., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,213

(October 12, 2017)

Ingerman Smith, L.L.P., attorneys for respondent, Julie L. Yodice, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that his son, R.E., Jr. (“the student”), is not a resident entitled to attend its schools tuition free.  The appeal must be dismissed.

On October 21, 2013, petitioner submitted a registration questionnaire (“questionnaire”) to enroll his son in respondent’s district, indicating that his son lived with him at his mother’s house - the student’s paternal grandmother’s house - within the district (“in-district address”).  The questionnaire also stated that petitioner’s wife, the student’s mother, lives in Hempstead outside of respondent’s district (“Hempstead address”) and that petitioner and the student lived at that address previously and the student attended school in that district. According to petitioner, he and his wife have been living apart since 2011.  There is no evidence that they are legally separated and documentation submitted by petitioner states that they are married.  The record reflects that petitioner works at a daycare that is located at the Hempstead address. 

Respondent’s investigator conducted surveillance at the Hempstead address on seven school days in October and November.  The student was observed exiting the Hempstead address in the early morning hours during five of those days; petitioner was with him three of the days.  On the other two days, no one was seen leaving the Hempstead address during the surveillance period, but petitioner’s car was parked in the driveway.  It was reported that the student arrived late to school on those two days.  Surveillance was also conducted at the in-district residence in the early morning on five school days in October and November.  Neither petitioner nor the student were observed at the in-district address on any of those days.  In November 2013, the district’s registrar obtained a copy of petitioner’s credit header report that listed petitioner’s address as the out-of-district Hempstead address. 

Subsequently, respondent’s director of pupil services (“director”) notified petitioner that the district had reason to believe that he and the student did not reside within the district because the student had been observed traveling from the Hempstead address to respondent’s school “on a regular basis.”  Petitioner was offered an opportunity to provide information regarding his son’s residency.  Thereafter, petitioner met with the district’s registrar and the director.  According to the registrar, when presented with the surveillance evidence showing that neither he nor the student were present at the in-district address, petitioner stated that the student stayed at the Hempstead residence only one night and claimed that the student left from the in-district address to attend school every morning, despite the surveillance evidence to the contrary.  Further, petitioner stated that the student’s mother has an order of protection against petitioner.  By letter dated November 19, 2013, respondent notified petitioner that the student was not a resident of the district and would be excluded from school.  This appeal ensued.  Petitioner’s request for interim relief was denied.

In his petition, petitioner asserts that the student lived with him at the student’s grandmother’s house within respondent’s district for 1½ years, and will do so “for at least 5 or more years.”  Petitioner claims that he and the student’s mother separated in May 2011 and that the student moved in with him at the in-district address in June 2013. Petitioner states that the student “frequently” visits his mother at the Hempstead address and that the amount of days he spends with her “varies.”  Petitioner also asserts that he works at a daycare at the Hempstead address and sometimes transports the student to school from his job.  Petitioner further states that the student began living with him because of a “downward spiral” in the student’s academics and petitioner believed a new educational atmosphere with greater opportunities would be beneficial. 

Respondent contends that petitioner has not established that its residency determination is arbitrary and capricious based on the evidence before it.  Respondent relies on the surveillance of both the Hempstead and in-district addresses, documentary evidence such as the credit report, and numerous alleged inconsistencies in the petition, registration questionnaire, and other documents submitted by petitioner.

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).

Upon review of this record, I find that petitioner has not met his burden of proving that his son is a district resident.  First, the record contains no evidence that petitioner owns or rents a residence in respondent’s district and there is insufficient proof that he resides in his mother’s house within the district, as he claims.  Surveillance conducted by respondent reveals petitioner’s presence with his son at the Hempstead address.  Petitioner has not adequately rebutted the surveillance evidence (cf. Appeal of J.A., 54 Ed Dept Rep, Decision No. 16,655).  Petitioner’s car was seen at the Hempstead address on each surveillance day, he was observed there three times, and neither petitioner nor the student was ever observed at the in-district residence during the surveillance period.  Moreover, petitioner’s claim that, during the surveillance period, the student spent one night at the Hempstead address is belied by the evidence that the student was observed leaving from the Hempstead address to go to school on five out of the seven days that surveillance was conducted.

Petitioner’s documentary evidence does not establish his or the student’s residence in the district.  Petitioner submits an undated W-4 form, a pay stub, and a child support statement sent to the in-district address.  However, such documents do not establish petitioner’s or his son’s physical presence in respondent’s district, particularly considering the surveillance evidence and the fact that such address is his mother’s residence (see Appeal of Gomes, 53 Ed Dept Rep, Decision No. 16,535).  It is also contradicted by respondent’s documentary evidence, including petitioner’s credit header report, the Hempstead telephone number listed by petitioner on a district sign-in sheet, and his driver’s license history.

Although petitioner submits notarized statements from his mother and his wife, respondent correctly notes that there are multiple inconsistencies in petitioner’s evidence.  Petitioner states that the student moved in with him at the in-district residence in June 2013; however, he did not enroll the student in respondent’s school until October 21.  I note that the discharge form from the Hempstead school the student was attending indicates that he was discharged as of October 21, when petitioner alleges the student had already been residing with him for four months at the in-district address rather than at the Hempstead address.  I further note that petitioner stated in the registration questionnaire that he worked at his mother’s daycare business in Roosevelt but asserts in this appeal, along with his mother, that he also works at her daycare location at the out-of-district Hempstead address where his wife resides.  Such assertion is also inconsistent with petitioner’s statement to the registrar that his wife has an order of protection against him.  Petitioner has not refuted the registrar’s sworn affidavit setting forth such information.

In view of the totality of the evidence before me, I cannot conclude that respondent’s determination that petitioner’s son is not a district resident is arbitrary, capricious or unreasonable.  In light of the above, I need not address the parties’ remaining contentions. 

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

THE APPEAL IS DISMISSED.

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