Appeal of ANEITA JACKSON, on behalf of her daughter SHAMONIQUE, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,643

(June 3, 2019)

Ingerman Smith, L.L.P., attorneys for respondent, Diana 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 daughter (the “student”) is not a district resident.  The appeal must be dismissed.

According to the record, the student’s father registered the student in respondent’s district on or about November 27, 2018.  In connection with such registration, the student's father indicated that he, petitioner, the student, the student’s aunt and uncle, and the student's two cousins resided at an address within respondent's district (the “in-district address”).  The record reflects that the student’s aunt owns the in-district address.  Based on these representations, respondent admitted the student to its schools.

On or about January 11, 2019, “another relative” of the student’s aunt attempted to register his child in respondent’s schools.  In connection with such registration, the relative completed registration paperwork in which he represented that he resided at the in-district address.  The relative, however, did not identify petitioner, her husband or the student as occupants of the in-district address.  The district registrar “specifically inquired” as to whether anyone else lived at the in-district address.  In response, the relative “confirmed” that he had identified all occupants of the in-district address in the registration paperwork.  Respondent thereafter commenced an investigation into the student’s residency.

Respondent conducted surveillance of the in-district address during the early morning on January 14, 15, 16, 17, and 18, 2019, commencing at 5:30 a.m. each day.  On each day of surveillance, petitioner and the student were not observed at the in-district address.

In a letter dated January 18, 2019, respondent's director of pupil services (“director”) informed petitioner that she had reason to believe that petitioner and the student did not reside at the in-district address.  The director invited petitioner to meet with her on January 28, 2019 to discuss the student’s residency.

On January 22, 2019, respondent conducted additional surveillance of the in-district address during the early morning hours, again commencing at 5:30 a.m.  Petitioner and the student were not observed at the in-district address.

On January 28, 2019, petitioner, the student’s aunt, and the director met to discuss the student’s residency.  In an affidavit, the director states that the student’s aunt represented that petitioner and the student sleep at the in-district address “each night,” and that the student left for school from the in-district address “each morning.”  The director then explained that the district had conducted surveillance of the in-district address and that this surveillance did not depict petitioner or the student at the in-district address in the morning.  The student’s aunt then stated that the student did not take the school bus because she did not have a class scheduled for first period.  The director replied that, the student’s aunt’s explanation notwithstanding, the surveillance did not depict the student leaving the in-district address at all on any of the observed dates.  The student’s aunt next asserted that the student goes to church before school, leaving around 7:00 a.m., and arrives at school via a “church bus.”  When the director informed petitioner and the student’s aunt that surveillance had been conducted as early as 5:30 a.m., the student’s aunt then stated that the student sometimes left for church “as early as 4:45 or 5:00 a.m.”  Petitioner also submitted additional documentary evidence for respondent’s consideration at this meeting.

The director avers that following the meeting, she asked a security guard who is responsible for observing each vehicle which enters the district’s high school campus if he had ever seen a church bus or van drop students off at the high school during the school year.  He indicated that he had not seen such a vehicle.

In a letter dated January 31, 2019, the director informed petitioner of the district’s determination that the student was not a district resident.  The director informed petitioner that the student would be excluded from respondent’s schools effective February 1, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 20, 2019. 

Petitioner contends that she and the student reside at the in-district address.  In support of her claim, petitioner submits documentary evidence bearing the in-district address.

Respondent contends that its determination was supported by the evidence and was neither arbitrary nor capricious.   Respondent contends that the surveillance evidence demonstrates that the student does not reside at the in-district address.  Respondent further asserts that the director did not find petitioner and the student’s aunt’s explanations regarding the surveillance evidence to be credible.

Education Law §3202(1) provides, in pertinent part:

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

On this record, I find that petitioner has not met her burden of proving that she resides at the in-district address. Petitioner submits documentary evidence bearing the in-district address to support her claim of residence, namely: (1) a letter from the district addressed to “Mr. and Mrs. Jackson” at the in-district address bearing a postmark of February 1, 2019; (2) a bank statement addressed to petitioner for the period December 31, 2018 through January 23, 2019; (3) a water bill addressed to the student’s aunt due on January 22, 2019; (4) a tax bill for the in-district address addressed to the student’s aunt and uncle for the period January 1, 2019 through December 31, 2019; (5) a copy of petitioner’s social security card; (6) a card indicating that petitioner is a permanent resident of the United States; (7) letters from a health care organization bearing various dates addressed to petitioner at the in-district address; (8) a 2018 Internal Revenue Service Form 1095-B concerning petitioner's health insurance coverage; and (9) United States Postal Service tracking information addressed to the student, the student’s aunt and the student’s uncle.

Initially, I note that some of the documentary evidence submitted by petitioner is not relevant to petitioner or the student’s residency as it is only addressed to the student’s aunt and/or uncle.  Moreover, petitioner's social security card and card reflecting permanent residency do not identify any addresses, let alone the in-district address.

While other documentary evidence bearing petitioner and/or the student’s name and the in-district address is entitled to some weight, it is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that the in-district residence appears to be owned by the student’s aunt (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).  Indeed, respondent conducted surveillance of the in-district address on six days in January 2019 during the early morning, and neither petitioner nor the student were seen on any of the dates.

The record further supports respondent’s determination that petitioner and the student’s aunt failed to present a persuasive explanation for the surveillance evidence.  I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see e.g. Appeal of D.W., 58 Ed Dept Rep, Decision No. 17,565; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).

According to the record, the student’s aunt initially asserted that the student left the in-district address for school in the early morning.  When the director told the student’s aunt that neither petitioner nor the student had been observed at the in-district address in the morning, the student’s aunt stated that the student left the house to go to church around 7:00 a.m.  When the director later told the student’s aunt that the surveillance did not depict the student leaving the house at that time, the student’s aunt then changed her explanation, indicating that the student left around 4:45 or 5:00 a.m.  Additionally, the student's aunt indicated that the student arrived at school via a “church bus,” but a security guard who observes all vehicles entering the high school campus indicated that he had not seen such a vehicle.  In addition, I note that petitioner states in the petition that the student “does other personal activities in the morning and then takes the city bus to arrive by 8:28 a.m.”  Therefore, in light of the shifting and contradictory explanations of the surveillance evidence provided by petitioner and her family, there is no basis in the record to disturb respondent’s credibility determination.

Based on the record before me, petitioner has failed to meet her burden of proving that she resides at the in-district address.  Accordingly, the appeal must be dismissed.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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