Decision No. 17,724
Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Boards of Education of the Pavilion Central School District and the Oakfield-Alabama Central School District regarding residency.
Decision No. 17,724
(August 8, 2019)
The Legal Aid Society of Rochester, New York, attorneys for petitioner, Jonathan Falk, Esq., of counsel
Bond Schoeneck & King, attorneys for respondent Board of Education of the Pavilion Central School District, Jennifer M. Schwartzott, Esq., of counsel
Hodgson Russ LLP, attorneys for respondent Board of Education of the Oakfield-Alabama Central School District, Luisa D. Johnson, Esq., of counsel
ELIA., Commissioner.--Petitioner appeals the decisions of the Pavilion Central School District (“respondent Pavilion”) the Oakfield-Alabama Central School District (“respondent Oakfield Alabama”) (collectively, “respondents”) that her daughter (“the student”) is not a district resident. The appeal must be dismissed.
According to petitioner, in July 2017 petitioner and the student moved in with petitioner’s mother (the student’s grandmother) to an address located within respondent Pavilion’s district. During the 2018-2019 school year, the student was in seventh grade. According to respondent, questions regarding the student’s residency arose in October 2018 when, at a meeting of respondent’s committee on special education, the student’s counselor reported that the student “lives with [petitioner’s] boyfriend but wants to move back in with grandma” and that the student “has to get up really early to get dropped off at grandma’s house to get on the bus.” The student’s teacher corroborated the counselor’s reports. Thereafter, the district commenced an investigation into petitioner’s residence. The record indicates that this investigation consisted of an interview with the student’s bus driver (“bus driver”) and “an investigation by law enforcement.”
In an affidavit filed with this appeal, respondent Pavilion’s superintendent (“superintendent”) indicates that he interviewed the bus driver as part of the investigation, and that the bus driver stated that the student “complained frequently from September until November 2018” about being tired because she had to drive from her house to her grandmother’s house every morning. The bus driver further reported that petitioner’s boyfriend picked the student up at her grandmother’s house and took her home every afternoon. The superintendent also indicates that the bus driver stated that, in November 2018, the student reported that she stayed at her grandmother’s house during the week, and that petitioner’s boyfriend picked her up on Friday afternoons to go home for the weekend until the week leading to Thanksgiving; after that time, the student indicated that she lived “in Oakfield” and would be transported to her school program from there.
The superintendent directed respondent Pavilion’s student resource officer (“resource officer”) to “locate [p]etitioner’s residence.” According to the resource officer, “using standard research techniques and information available to law enforcement,” he determined that petitioner lived with her “boyfriend” at an address located within the Oakfield-Alabama School District (“out-of-district address”) and that she was involved in a “domestic incident” at that address “as long ago as June 24, 2018 at 9:30 pm, suggesting to [him that] she lived at that address since at least that time.”
Surveillance was conducted at the out-of-district address. In an affidavit filed with this appeal, the resource officer indicates that, on October 26, 2018, he observed petitioner’s vehicle in the driveway of the out-of-district address. He then states that he returned to the out-of-district address on “two additional later occasions” and observed petitioner at the out-of-district address “once in the morning (on 10/26/18) and once in the afternoon (on 11/2/18).” He further indicates that, at his direction, another officer “located” petitioner at the out-of-district address on the morning of October 29, 2018. Finally, the resource officer states that, while at the out-of-district address on November 2, 2018, he hand-delivered to petitioner a “sealed envelope from the District.”
By letter dated November 2, 2018, the superintendent notified petitioner that:
[w]e understand from multiple sources that you no longer reside in the Pavilion Central School District, and since the beginning of the school year you have been driving [the student] to your mother’s house for her to be picked up by the [d]istrict’s bus. Please understand [that] students who do not reside in the [d]istrict are not permitted to attend the [d]istrict’s school or programs.
The letter further indicated that petitioner had until November 13, 2018 to provide the superintendent with documentation that established that she lived within the district. The letter also stated that if petitioner did not have such documentation, she should “immediately enroll [the student] in the Oakfield-Alabama school district where [petitioner] currently reside[s].”
Respondent Pavilion asserts on appeal that, on November 6, 2018, petitioner “dropped off several documents to the [d]istrict office.”
By letter dated November 7, 2018, the superintendent notified petitioner that the documentation provided by petitioner was “insufficient to overcome the evidence that [the district] ha[s] that [petitioner] no longer live[s] in the [d]istrict and presently reside[s] at [the out-of-district address]” and, therefore, the student would be disenrolled on November 23, 2018. The letter stated that petitioner “should enroll the student in the Oakfield-Alabama School District where [petitioner] currently reside[s].”
Petitioner then requested a residency determination from respondent Oakfield-Alabama. By letter dated November 16, 2018, respondent Oakfield-Alabama’s elementary school interim principal (“principal”) notified petitioner that her registration request was denied as [petitioner] resides with her mother” and identified petitioner’s “legal address” as the in-district address. This appeal ensued. Petitioner’s request for interim relief directing respondent Pavilion to admit the student was granted on December 7, 2018.
Petitioner contends that she and the student reside at the in-district address and, therefore, the student is entitled to attend school in respondent Pavilion’s district. In support of her contention, petitioner submits an affidavit in which she states that her mother helps her care for the student because petitioner works from midnight until 8:00 a.m. and is in a relationship with a person who lives at the out-of-district address. Petitioner also requests an order instructing respondent Pavilion “to repeat its surveillance protocol in light of [petitioner’s] unique residency circumstances.”
Respondent Pavilion argues that the appeal must be dismissed because petitioner failed to meet her burden of proof and that its residency determination was not arbitrary and capricious. Respondent Pavilion, also requests that I disregard certain information submitted by petitioner, arguing that:
[t]o assess whether the [d]istrict’s decision was arbitrary and capricious, the Commissioner is limited to considering the evidence before the [d]istrict at the time the decision was made – not evidence submitted after the fact that [p]etitioner’s counsel presumably assisted in procuring.
Respondent Oakfield-Alabama argues that the appeal must be dismissed because petitioner has failed to state a claim upon which relief can be granted and has failed to meet her burden of proof. Finally, respondent Oakfield-Alabama argues that its decision is supported by the record, and not arbitrary, capricious or unreasonable.
I will first address the procedural matters. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
To the extent that respondent Pavilion requests that I disregard certain evidence not submitted to respondent Pavilion prior to its residency determination, the Commissioner may consider evidence properly submitted in an appeal, such as in a reply, even though it had not been previously submitted to the district (see Appeal of Moore, 57 Ed Dept Rep, Decision No. 17,353; Appeal of a Student Suspected of Having a Disability, 56 id., Decision No. 17,061). In this case, petitioner presented additional documentary evidence for the first time in her petition. Respondent Pavilion, in its answer, has had an opportunity to respond to petitioner’s evidence and explanation and to submit evidence to rebut it (see Appeal of Mirza, 57 Ed Dept Rep, Decision No. 17,128). Therefore, I have considered petitioner’s evidence and respondent Pavilion’s objections thereto in reaching my determination.
Turning to the merits, 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).
In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
To the extent that petitioner requests an order that she is a resident of respondent Oakfield-Alabama’s district, the appeal must be dismissed. Respondent Oakfield-Alabama submits an affidavit from its elementary school interim principal stating that when petitioner went to register her daughter in the Oakfield-Alabama Central School District, she stated that she was not a resident of such school district; had no proof of residency because she lives in the Pavilion Central School District; and does not want the student to attend Oakfield-Alabama. The interim principal further stated that petitioner asked him to provide her with a denial letter. Under such circumstances, to the extent petitioner challenges respondent Oakfield-Alabama’s determination, she has failed to meet her burden of proving that respondent Oakfield-Alabama’s denial of residency was arbitrary and capricious.
In support of her claim of residency within respondent Pavilion’s district, petitioner submits documentary evidence bearing the in-district address, including a copy of her current New York State vehicle registration; a notice from the Internal Revenue Service dated October 17, 2018; a notice from an insurance company dated October 24, 2018; a statement of earnings for the pay period of October 21, 2018 through November 3, 2018; correspondence from BlueCross BlueShield of Western New York dated November 1, 2018; a bill from an attorney dated September 25, 2018; a retirement account quarterly statement from the period July 1, 2018 through September 30, 2018; and an envelope with the return address of Spencerport Central Schools and a postage date of November 1, 2018. Petitioner also submits an unsworn, notarized statement dated November 13, 2018 from her mother stating that petitioner and the student have lived with her at the in-district address since July 2017, and an affidavit and attached work schedule, in which petitioner indicates that she works from midnight until 8 a.m. and that she is in a relationship with a person who lives at the out-of-district address.
Respondent Pavilion relies on its surveillance evidence and on statements the student made to her teacher, counselor and school bus driver about being tired because she had to drive from her house to her grandmother’s house every morning and that her mother’s boyfriend picks her up at her grandmother’s house and takes her home every afternoon.
As noted above, respondent Pavilion conducted surveillance at the out-of-district residence on three nonconsecutive dates and observed that petitioner was physically present at the out-of-district residence on all three occasions. However, the resource officer provides no details about the time of the surveillance on October 26, 2018 or November 2, 2018, nor does he explain what happened when another officer “located” petitioner at the residence on October 29, 2018. No surveillance was conducted at the in-district address, and the student was never observed at the out-of-district residence.
Petitioner’s explanation of the surveillance is that she is in a relationship with someone who lives the out-of-district address; that on October 26 and November 2, 2018 she had worked an overnight shift; that, on occasion, she naps at the out-of-district address or stops by to let a dog out during the day; and that, on one of the surveillance days, she was awoken by the police. On this record, I find that petitioner has explained her presence at the out-of-district address and I do not find respondent’s limited surveillance evidence to be persuasive evidence that petitioner and the student reside at the out-of-district address.
However, respondent Pavilion has also submitted a sworn statement from its director of pupil personnel services and committee on special education chairperson who avers that the student told her teacher and counselor that she “lives with [petitioner’s] boyfriend, but wants to move back in with grandma” and that she gets dropped off at her grandmother’s house to get on the bus, and picked up by petitioner’s boyfriend in the afternoon to go home. Respondent Pavilion also submits a sworn statement from its superintendent in which he indicates that he interviewed the student’s bus driver, and that the student made similar statements up and until November 2018; after that time, the student reported to the driver that she stayed at her grandmother’s house during the week and that her mother’s boyfriend picked her up on Friday afternoons to go “home” for the weekend. While these various statements are hearsay, hearsay evidence is admissible in administrative hearings generally (see Board of Education of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.E., 57 Ed Dept Rep, Decision No. 17,267), including in an appeal pursuant to Education Law §310 (see e.g. Appeal of Galperin, 51 Ed Dept Rep, Decision No. 16,297).
Petitioner, who is represented by counsel, submits a reply in this matter which characterizes the student’s statements as occasional “complaints” and argues that the statements are “merely indicative of the fact that her mother was in a relationship with a non-resident ....” However, petitioner has not explained why the student made multiple statements to district staff indicating that she lives at the out-of-district residence. In particular, the school bus driver indicated that the student repeatedly stated from September to November 2018 that she was traveling back and forth between her grandmother’s and petitioner’s boyfriend’s houses on a daily basis. The petition and reply do not include any details about how much time petitioner and/or the student spend at the out-of-district address. The petition merely states that petitioner is in a relationship with a person who lives at the out-of-district address and in an affidavit submitted with her reply, petitioner explains why she was present at her boyfriend’s residence on the dates of surveillance, but not why the student repeatedly stated that she lives at the boyfriend’s residence. Petitioner does submit an unsworn statement from petitioner’s mother, but such statement merely states that her daughter and granddaughter have lived at her residence since July 2017 and contains no other specific details that would explain the student’s statements.
Petitioner, who is represented by counsel, submits no other evidence, such as affidavits from neighbors or the individual who lives at the out-of-district address, to rebut respondent Pavilion’s assertions. While petitioner submitted the documentary evidence detailed above, such documents do not establish petitioner’s physical presence in respondent’s district, particularly considering that such address is her mother’s residence (see Appeal of R.E., 57 Ed Dept Rep, Decision No. 17,213). Therefore, I find that the evidence in the record – including the allegations and documents in petitioner’s verified petition, the unsworn statement from petitioner’s mother, and respondent Pavilion’s limited surveillance evidence and affidavits - is, at best, in equipoise. Therefore, I am constrained to find that petitioner has not met her burden of proving, on this record, that respondent’s determination was arbitrary or capricious (see Appeal of M.S., 57 Ed Dept Rep, Decision No. 17,430).
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent Pavilion’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation for respondent Pavilion’s consideration. Similarly, petitioner has the right to apply for admission to respondent Oakfield-Alabama’s schools if she believes that district is the student’s district of residence, and to present any information or documentation of residence to respondent Oakfield-Alabama.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner indicates that the student attended respondent Pavilion’s Middle/High School, however in an affidavit respondent Pavilion’s superintendent indicates that the student attends an out-of-district special education program.
 Though the bus driver reports on comments made by the student through the end of November, I note that respondent Pavilion’s residency determination from which petitioner appeals was made on November 7, 2018.
 Surveillance was conducted at the out-of-district address on three occasions. It is not clear from his affidavit whether the resource officer made two visits to the out-of-district address on October 26, 2018. Even if he did, the resource officer provides no information whatsoever about what that additional surveillance revealed. For purposes of this appeal, I find that respondent has only proven that surveillance showing petitioner’s presence at the out-of-district address was conducted only once on October 26, 2018.
 The letter indicates that the documents provided by petitioner included one page of a multi-page document from the Internal Revenue Service; an invoice from an attorney’s office; a copy of a New York State vehicle registration that was issued before the start of the 2018-2019 school year; an August 2018 earnings statement with no address; and a July 2018 tax bill for the in-district address. According to petitioner, she also provided the superintendent with a signed statement from her mother indicating that petitioner and the student live with her and a copy of petitioner’s work schedule. Respondent Pavilion denies receiving these documents but admits that petitioner advised the district that she worked the overnight shift.
 The record indicates that the date of disenrollment was extended “to take into account the Thanksgiving holiday.”
 I note that although all the allegations in the petition are in support of a finding that petitioner and the student are residents of respondent Pavilion’s district, and that petitioner does not allege that she and the student reside at the out-of-district address, in her request for relief she asks that, “in the alternative,” the student be deemed a resident of respondent Oakfield-Alabama’s district.
 Likewise, I have also considered the evidence submitted by respondent Pavilion in this appeal concerning statements made by the student to the bus driver in November 2018 which post-date its residency determination on November 7, 2018.
 Petitioner contends that I should disregard this affidavit, arguing that it is unreliable and will “unduly prejudice” petitioner. I have taken petitioner’s objection into consideration; however, I have nevertheless accepted this affidavit and note that assertions in the affidavit regarding the student’s statements were corroborated by the interview of the school bus driver.