Appeal of V.A. and M.G., on behalf of their children Z.G.A. and E.G.A., from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,886

(July 27, 2020)

             Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that their children, Z.G.A. and E.G.A. (the “students”), are not district residents.  The appeal must be dismissed.   

Respondent previously enrolled the students in its district based on petitioners’ assertion that the students resided with petitioners at an address within the district (the “in-district address”).  In or about January 2020, respondent received notice that student E.G.A. told classmates that he had moved to a new residence.  Respondent also observed petitioners dropping E.G.A. off at school each day in a white Honda Accord with Connecticut license plates (the “Connecticut vehicle”).

Respondent assigned its attendance teacher to conduct a residency investigation.  The attendance teacher visited the in-district address and concluded that petitioners and the students no longer resided there.  Based on subsequent research, the attendance teacher determined that petitioners and the students were residing at a home in Norwalk, Connecticut (the “out-of-district address”).  Thereafter, the attendance teacher completed an initial residency report, in which she recommended that petitioners “receive a letter of non-residency.” 

Based upon the attendance teacher’s recommendation, respondent’s director of pupil services (“director”) sent petitioners a letter dated January 14, 2020, indicating her intent to exclude the students from respondent’s schools as non-residents.  The letter advised petitioners that they had until January 29, 2020 to submit information that would establish the students’ residency in the district.

Petitioner V.A. contacted respondent and indicated that petitioners and the students were residing at the in-district address but that petitioner M.G. had used the out-of-district address to obtain a Connecticut driver’s license because he was unable to obtain a New York driver’s license. 

Thereafter, the attendance teacher conducted additional surveillance of the in-district address on January 23, 2020 at 9:00 p.m.; January 24, 2020 at 5:10 a.m.; January 27, 2020 at 5:40 a.m. and 10:30 p.m.; January 28, 2020 at 9:00 p.m.; January 29, 2020 at 11:00 p.m.; January 30, 2020 at 9:30 p.m.; and January 31, 2020 at 5:15 a.m.  In a “follow-up observation report” dated February 14, 2020, the attendance teacher noted that she never observed the Connecticut vehicle in the vicinity of the in-district address, although petitioner V.A. was continuing to drop E.G.A. off at school in the Connecticut vehicle.  The attendance teacher further noted that E.G.A. continued to tell classmates that he had moved.  She concluded that petitioners and the students did not reside at the in-district address and recommended that petitioners “receive a second non-residency letter.” 

By letter dated February 26, 2020, the director informed petitioners that, based on its investigation, the district would exclude the students from its schools as non-residents effective March 11, 2020.  This appeal ensued.  Petitioners’ request for interim relief was denied on March 16, 2020.   

Petitioners assert that the students reside within respondent’s district.  In support, petitioners attach a letter from the purported landlord of the in-district address, stating that he has rented the in-district address to petitioners and the students since August 1, 2018.  For relief, petitioners request a determination that the students are district residents entitled to attend respondent’s schools without payment of tuition.

Respondent argues that its determination to exclude the students from its schools as non-residents was neither arbitrary nor capricious because petitioners have failed to establish that they and the students permanently reside within the geographical confines of its district. 

     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, petitioners have failed to carry their burden of establishing that the students are district residents.  As proof of their residency, petitioners submit a notarized letter from the purported landlord of the in-district address, stating that he rented an apartment to petitioners at the in-district address since August 1, 2018.  However, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863).  While this documentary evidence indicating petitioners’ rental of an in-district address is entitled to some weight, it is not dispositive of petitioners’ residency where contrary surveillance evidence exists (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).  

As indicated above, in January 2020, the school district learned that E.G.A. was telling his classmates he had moved to a new residence in which he had his own bedroom.  School officials also observed that the student was being dropped off at school by his parents in a vehicle with Connecticut license plates.  The attendance teacher also states in an affidavit that she made a home visit to the in-district address and concluded that the students no longer resided there.  The attendance teacher further indicates that although she did not observe the Connecticut vehicle at the in-district address in the early morning and late evening hours on seven separate days of surveillance, “[u]pon information and belief,” E.G.A. “arrived to school on time on all of these days [of surveillance], dropped off by his mother in the [Connecticut vehicle].”  Petitioner did not submit a reply or otherwise respond to these contentions.

Additionally, petitioner V.A.’s statement to respondent that petitioner M.G. has a Connecticut driver’s license because he was unable to obtain a New York driver’s license suggests that the students do not reside within respondent’s district.  While the record contains no further explanation of these circumstances, petitioner M.G.’s inability to obtain a New York State driver’s license is generally inconsistent with petitioners’ contention that their family resides in New York at the in-district address.

Therefore, although respondent’s evidence is not overwhelming, based upon the record before me and the dearth of evidence provided by petitioners, I cannot conclude that respondent’s decision was arbitrary or capricious. 

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to respondent’s schools on behalf of the students in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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