Decision No. 17,279
Appeal of MIGUEL and NELLY RUBIO, on behalf of their son EDWIN, from action of the Board of Education of the Elwood Union Free School District regarding residency.
Decision No. 17,279
(December 12, 2017)
Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq.
ELIA, Commissioner.--Petitioners appeal a determination of the Board of Education of the Elwood Union Free School District (“respondent”) that their son, Edwin, is not a district resident. The appeal must be dismissed.
According to the record, from 2010 to 2013 Edwin lived with his sister, Claudia Hernandez, within the Elwood Union Free School District. During that time, it appears that petitioners were living in El Salvador caring for a sick relative. Petitioners state in an unsworn letter attached to the petition that they relinquished guardianship of Edwin to Ms. Hernandez, although the record contains no proof of that assertion. Nevertheless, it appears that Edwin attended school in respondent’s district.
In the summer of 2013, petitioners returned to the United States and resided in the Huntington Union Free School District. Upon his parents’ return, Edwin went to live with them in the Huntington Union Free School District (“Huntington”).
According to the record, on September 12, 2013, petitioners withdrew their daughter, Jessica, from respondent’s district and enrolled her in Huntington. It is unclear where Jessica had been residing while enrolled in respondent’s district.
By letter dated November 26, 2013 to Ms. Hernandez, respondent’s assistant superintendent for business determined that Edwin was not residing in the Elwood Union Free School District and, therefore, was not legally entitled to attend the public schools of the district. This appeal ensued. Petitioners’ request for interim relief was denied on December 31, 2013.
Petitioners admit that they live in Huntington and that Edwin resides with them. In a letter attached to the petition, petitioners state that they hope to move to respondent’s district. As relief, petitioners seek a determination that Edwin is a resident of the respondent’s school district and is entitled to attend school there without payment of tuition.
Respondent contends that Edwin resides in Huntington and, thus, is not legally entitled to attend school in its district.
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).
As noted, petitioners admit that they reside in Huntington and that Edwin resides with them. Petitioners base their request for relief upon their stated intention of eventually moving to the Elwood Union Free School District. In light of petitioners’ admission that they reside outside respondent’s school district in Huntington and that Edwin resides with them, I do not find respondent’s determination that Edwin is not a district resident arbitrary, capricious or unreasonable, and I find no basis upon which to set it aside.
THE APPEAL IS DISMISSED.
END OF FILE
 I note that the petition states that petitioners were residing in the Walt Whitman School District, but respondent has submitted documents which indicate that Walt Whitman was the name of the school, which is located within the Huntington Union Free School District.
 The notice was addressed to Claudia Hernandez at petitioners’ address in Huntington.