Appeal of NICOLE GRIFFIN, on behalf of her children CIARA LEIGH and DAISHON LEIGH, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,447

(July 16, 2018)

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

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her children (the “students”) are not district residents.  The appeal must be dismissed.

Petitioner registered the students in respondent’s district on or about September 4, 2016, identifying an address located within the district’s geographical boundaries as her address (the “in-district address”).  On or about October 27, 2017, staff in respondent’s high school suspected that one of petitioner’s children may not reside within the district.

On or about November 7, 2017, respondent ran a credit history report for petitioner.  This report identified an address in Queens, New York as the most current address associated with petitioner (the “first out-of-district address”).  Respondent thereafter commenced a residency investigation, which included surveillance of the in-district address and the first out-of-district address.  The investigator surveilled the in-district address for five days but did not see petitioner or the students.  Similarly, the investigator did not observe petitioner or the students at the first out-of-district address for the first two days of surveillance at this location.  However, in response to information gained during the course of the investigation, respondent learned of a second address in Queens, New York where petitioner and the students might reside (the “second out-of-district address”).  Respondent thereafter surveilled the second out-of-district address in the early morning on five non-consecutive week days in November 2017.  The students were observed exiting the second out-of-district address on each of the five days.

In a letter to petitioner dated November 21, 2017, respondent’s director of pupil personnel services (“PPS director”) communicated the district’s determination that the students did not reside within its district.  The PPS director offered petitioner an opportunity to discuss the determination on November 29, 2017 at 9:00 a.m.  Petitioner did not attend this meeting.

On November 30, 2017, the PPS director reached petitioner by telephone.  According to the PPS director, petitioner stated in this call that she had been residing at the second out-of-district address since August or September of 2017 to avoid repossession of her vehicle, which was registered at the in-district address.  The PPS director asked when petitioner intended to return to the district, and petitioner, who indicated that she was pregnant, stated that she would return “after she ha[d] her baby and when her car [was] paid up.”

In a letter dated November 30, 2017, the PPS director reiterated her conclusion that the students did not reside within respondent’s district.  The PPS director further indicated that the students would be excluded at 3:00 p.m. on December 8, 2017.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 14, 2017.

Petitioner asserts that she is currently residing at the second out-of-district address temporarily to avoid repossession of her car.  Petitioner further asserts that her situation “was/is temporary” and that she “did not move out” of the district.

Respondent contends that its determination was rational, and that petitioner has failed to prove that she and the students physically reside within its district.  Respondent also argues that the petition must be dismissed as petitioner failed to set forth her allegations in numbered paragraphs as required by section 275.3(c) of the Commissioner’s regulations.

First, I will address respondent’s procedural contention.  Respondent is correct that the petition fails to set forth its allegations in numbered paragraphs as required by Commissioner’s regulations (8 NYCRR §275.3).  However, the petition’s allegations are set forth on sequentially numbered lines, and respondent was able to admit or deny the allegations contained therein.  A liberal interpretation of the rules is appropriate where a petitioner is pro se and there is no prejudice to respondent (Appeal of Smith, 40 Ed Dept Rep 172, Decision No. 14,452).  Accordingly, I will not dismiss the petition on this basis.

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

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).

Petitioner admits that she and the students do not currently reside within respondent’s district.  Petitioner bases her request for relief upon her assertion that she is a district resident who is temporarily absent from the district because her car is “currently under repossession” and that she should be permitted to maintain her residency status during such absence.  However, petitioner has not sufficiently explained why moving her family to the second out-of-district address was necessary if her goal was solely to hide the vehicle from a creditor.  Moreover, petitioner admits that she is currently residing outside of respondent’s district to avoid a legal debt.  On this record, petitioner has failed to establish any continuing ties to the community or efforts to return so as to demonstrate a temporary absence from respondent’s district.

In light of petitioner’s admission that she lives outside of respondent’s school district and that the students live with her, I cannot find respondent’s determination that petitioner and the students are not district residents to be arbitrary or capricious.

Although the petition must be dismissed, I note that petitioner has the right to reapply for admission to respondent’s schools on behalf of her children at any time, particularly if her living situation has changed, and to submit any documentary evidence for respondent’s consideration pursuant to 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

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