Decision No. 17,346
Appeal of A.M., on behalf of her children, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.
Decision No. 17,346
(March 13, 2018)
Ingerman Smith LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that her children (“the students”) are not district residents. The appeal must be dismissed.
In 2012 and 2014, petitioner enrolled the students in respondent’s district based on the representation that she and the students resided with her parents at an address located within respondent’s district (“in-district address”). According to respondent, concerns about petitioner’s residency arose in January 2017, when petitioner requested transportation for one of her children to and from an address located in New Rochelle (“out-of-district address”). Thereafter, respondent commenced a residency investigation and retained an investigator to conduct surveillance.
Surveillance was conducted at the out-of-district residence on the mornings of five consecutive school days in January and February 2017, beginning at 6:00 a.m. each day. On all five mornings, petitioner and the students were observed leaving the residence and driving away in her car.
By letter dated February 3, 2017, respondent’s assistant superintendent for business operations (“assistant superintendent”) notified petitioner that based on surveillance, the district believed that she and the students lived at the out-of-district address. The letter further advised that the students would be excluded from the district “effective February 17, 2017.”
On February 17, 2017, petitioner attended an “informal conference” with the assistant superintendent to discuss the district’s determination. According to respondent, at the conference, petitioner reported that her boyfriend lived at the out-of-district address and that she and the students were temporarily residing with him because “he was helping with her children” while one of them was hospitalized. According to respondent, petitioner stated that she and the students would return to the in-district address when her child was discharged from the hospital and able to attend school. Based on the representations made by petitioner, respondent permitted the students to continue attending school in the district.
On March 31, 2017, petitioner’s child returned to school. On April 6, 2017, respondent’s “residency investigator” conducted “a residency check” at the in-district address. According to respondent, the students were not present during the check, but petitioner showed the investigator “the bedrooms the [s]tudents purported to stay in.” Based on petitioner’s representations, the students were permitted to complete the 2016-2017 school year in the district.
At the start of the 2017-2018 school year, respondent conducted “follow-up surveillance.” Surveillance was conducted at the out-of-district address in the mornings of five consecutive school days in September beginning at 6:00 a.m. each day. On all five mornings, petitioner and the students were observed leaving the out-of-district address and driving away in her car.
By letter dated September 13, 2017, the superintendent of schools (“superintendent”) notified petitioner that based on surveillance conducted by the district, the district determined that petitioner and the students reside outside the district and therefore, the students would be excluded from the district effective September 25, 2017.
On September 20, 2017, petitioner attended an “informal conference” with the superintendent to discuss the district’s determination. According to respondent, petitioner asserted that she lived at the in-district address and provided mail addressed to her at that address. In an affidavit, the superintendent states that, when confronted by the superintendent with the surveillance evidence, petitioner asked how long the students could remain in the district while she registered them in the “New Rochelle school [d]istrict” and stated that she did not want the students to attend “Jackson Elementary School because the school did not have a good reputation.”
By letter dated September 20, 2017, the superintendent notified petitioner of his determination that petitioner and the students did not reside within the geographical confines of the district and therefore, the students would be excluded from the district effective September 29, 2017. This appeal ensued. Petitioner’s request for interim relief was denied on October 17, 2017.
Petitioner asserts that she and the students have lived at the in-district address since 2011, and therefore, her children are entitled to attend respondent’s schools without the payment of tuition. She contends that she and the students were temporarily staying with her boyfriend at the out-of-district address.
Respondent argues that the appeal should be dismissed for failure to state a claim and because petitioner has failed to demonstrate a clear legal right to the relief requested.
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).
On this record, petitioner has failed to meet her burden of proof to show that she and the students reside at the in-district address. In support of her petition, petitioner includes documentary evidence listing the in-district address such as a copy of her New York State Driver’s License issued November 25, 2013, a 2016 Wage and Tax Statement, a Verizon bill and a print out from New York State of Health, as well as a sworn statement from her mother stating that petitioner and the students have lived at the in-district address with her since November 2011 and a letter from the students’ father to the superintendent dated September 30, 2017, which states that petitioner and the students reside at the in-district address and that on weekends and school vacations he has picked-up and dropped off the students there.
Petitioner admits that she and the students have stayed at the out-of-district address, her boyfriend’s apartment, on “some nights” because she and the children have had a “few hardships over the past 10 months.” Petitioner states that one of her children was hospitalized and that her other child would stay with her boyfriend while she was at the hospital. She also states that after her child was released from the hospital, he attended school in Tarrytown, New York, which was a “daily 2 hour commute” so her boyfriend helped get her other child to school. Petitioner further states that her mother was ill, so to “alleviate the stress” on her parents, she and the students spent time “back and forth” between the in-district address and the out-of-district address. Finally, petitioner states that “after school ended for the summer” she was hospitalized and had surgery that limited her activity, so she and the students were again “back and forth.”
As noted above, the district conducted surveillance at the out-of-district address on five weekday mornings between the end of January and beginning of February and on all five mornings, petitioner and the students were observed leaving the out-of-district address and driving away in a car registered to her. When confronted with the surveillance evidence, petitioner advised respondent of the circumstances surrounding her child’s hospitalization and the students were permitted to remain in the district.
As further noted above, at the outset of the 2017-2018 school year, the district again conducted surveillance at the out-of-district address on five consecutive school-day mornings and on all five, petitioner and the students were seen leaving the out-of-district address, getting in her car and driving away. Petitioner was confronted with the surveillance evidence at the informal conference with the superintendent held on September 20, 2017. The superintendent asserts in an affidavit that petitioner did not question the surveillance evidence or claim that she resided with her parents at the in-district address. The superintendent also states that petitioner asked how long the students could remain in the district while she registered them in New Rochelle. Finally, the superintendent asserts that petitioner stated that her parents, who live at the in-district address, were going to retire in Spring 2018 and “at that time she planned on moving into the [d]istrict.”
Petitioner has provided no evidence to explain respondent’s surveillance and on this record has not established that she and her children are physically present at the in-district residence. She has not submitted a reply and has not contested the superintendent’s characterization of the September 20 informal conference, in which he indicates that she made statements that amount to admissions that she and her children did not reside at the in-district residence at the time of respondent’s residency determination.
Instead, in a statement attached to her petition, petitioner makes a conclusory allegation, for the first time, that “after school ended for the summer” she was hospitalized and had surgery. She asserts that she and her children were “back and forth” between the in-district and out-of-district address as a result. However, petitioner submits no evidence to corroborate such allegations and provides no details, such as the dates of her hospitalization or surgery, or details of physical restrictions, other than her statement that she could not drive or boil water at some unspecified time. In fact, petitioner was seen driving during the September 2017 surveillance. While I am sympathetic to petitioner’s situation, her conclusory allegations are not enough to overcome respondent’s surveillance evidence.
While petitioner does submit limited documentary evidence, such evidence is not dispositive where contrary surveillance evidence exists (Appeal of Stewart, 47 Ed Dept Rep 92, Decision No. 15,637). On the record before me, I cannot conclude that respondent’s determination that petitioner and her children are not district residents is arbitrary, capricious or unreasonable.
Although the appeal must be dismissed, I note that petitioner retains the right to re-apply for admission to the district on her children's behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The record does not include copies of whatever mail petitioner provided at the conference, though there is a telephone bill attached to the petition that bears the in-district address.
 The affidavit from the superintendent further states that he assumed that Jackson Elementary School was the elementary school in the district where petitioner and the students resided.