Decision No. 17,893
Appeal of E.S., on behalf of her children P.A. and K.A.P.-C. from action of the Board of Education of the Half Hollow Hills Central School District regarding residency.
Decision No. 17,893
(August 4, 2020)
Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel
Tahoe., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her niece, K.A.P.-C. and daughter, P.A., (the “students”) are not district residents. The appeal must be dismissed.
Prior to the events described in this appeal, the students were enrolled in respondent’s schools based upon petitioner’s representation that she and the students resided at an address in respondent’s district (the “in-district address”). In or about October 2019, respondent received a report from an anonymous telephone caller alleging that the students did not reside in the district. Specifically, the caller reported that “two children were routinely being dropped off by a car in front of” the in-district address, at which time they “board[ed] a [d]istrict school bus on weekday school mornings.” The district thereafter initiated an investigation to determine whether the students resided within respondent’s district.
Between November 26, 2019 and December 11, 2019, an investigator conducted surveillance on six weekdays at both the in-district address and an address in Wyandanch, New York, which is located outside of the geographical boundaries of respondent’s district (the “out-of-district address”). Specifically, respondent conducted surveillance on November 26 and 27, 2019, and December 3, 4, 10, and 11, 2019. On each day of surveillance, the investigator observed a vehicle depart the out-of-district address and arrive at the in-district address. Upon arriving at the in-district address, the students exited the vehicle and either boarded the school bus at the in-district address (on four occasions) or entered the in-district address (on two occasions).
In addition to this surveillance, respondent conducted a search of public records, which revealed that petitioner co-owned the out-of-district address with her father. The district’s investigation additionally revealed that petitioner’s vehicle registration and insurance were registered to the out-of-district address in her name.
By letter dated December 11, 2019, respondent’s assistant superintendent for finance and facilities (“assistant superintendent”) informed petitioner of her intent to exclude the students from respondent’s district as non-residents effective December 20, 2019. This letter indicated that respondent’s determination was based on the fact that surveillance and documentation confirmed that petitioner and the students did not reside at the in-district address. The letter invited petitioner to submit any evidence of the students’ residency by December 18, 2019.
In response to the assistant superintendent’s letter, petitioner requested a residency meeting, which took place on January 3, 2020. According to the assistant superintendent’s affidavit, during this meeting, petitioner claimed to reside with her aunt at the in-district address but admitted that the students were physically present at the out-of-district address “very often.” In addition, when questioned about the students’ current whereabouts, petitioner admitted that the students “were ‘at home already’ ... with her ‘dad,’” which, according to the assistant superintendent, referred to the out-of-district address. Petitioner nevertheless continued to allege that she resided at the in-district address and submitted mail addressed to her at the in-district address to support her claim. However, the assistant superintendent informed petitioner that such mail was not determinative of her or the students’ residence in light of the district’s “overwhelming evidence to the contrary.” At the conclusion of the meeting, the assistant superintendent informed petitioner that the students were not district residents and would be excluded from the district’s schools. This appeal ensued. Petitioner’s request for interim relief was denied on February 5, 2020.
Petitioner does not make any specific arguments supporting her claim of residency within respondent’s district. However, petitioner attaches numerous pieces of mail addressed to her at the in-district address, as described below. Petitioner seeks a determination that the students are district residents entitled to attend its schools tuition-free.
Respondent argues that its determination to exclude the students from its schools was neither arbitrary nor capricious. Respondent contends that petitioner has not established residency in the district because she has failed to show that the students physically reside in the district and intend to remain therein.
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).
Petitioner has not met her burden of proving that the students reside within respondent’s district. As proof of her residency within the district, petitioner submits the following documents addressed to her at the in-district address: (1) an October 28, 2019 letter from the New York State Department of Health concerning a survey; (2) a receipt for an insurance payment issued on December 23, 2019; (3) November 20, 2019 correspondence from the Suffolk County Department of Social Services regarding supplemental nutrition assistance; (4) two pay stubs from petitioner’s employer dated January 3, 2020 and January 17, 2020; (5) July 25, 2019 correspondence from the New York State Department of Labor regarding petitioner’s discharge from a job; (6) November 5, 2019 correspondence from a recruiting agency; (7) an October 31, 2019 statement from a federal credit union; (8) November 18, 2019 correspondence from an insurance provider; (9) a copy of petitioner’s driver’s license; and (10) a January 16, 2019 letter from the students’ doctor stating that the students have been patients since 2012 and that their “current address on file” is the in-district address. Petitioner additionally submits a copy of her driver’s license, which bears the in-district address.
While this documentary evidence bearing petitioner’s name and the in-district address is entitled to some weight, it is not dispositive 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, the students were observed being transported from the out-of-district address to the in-district address on each of the six weekday mornings that surveillance occurred over a three-week period. Moreover, on multiple occasions, petitioner was observed driving the vehicle in which the students were transported. Petitioner offers no explanation for this surveillance evidence in the petition, nor did she submit a reply in this matter.
In addition to the surveillance evidence, the record contains evidence associating petitioner with the out-of-district address that further supports respondent’s determination. Namely, petitioner’s vehicle registration and insurance are registered to the out-of-district address in her name. Petitioner also co-owns the out-of-district address with her father. Moreover, according to respondent, petitioner admitted at the January 3, 2020 residency meeting with the assistant superintendent that, at the time of the meeting, the students were “at home” with her father at the out-of-district residence. Therefore, I find that, on this record, petitioner has not met her burden of proving that respondent’s residency determination was arbitrary or capricious.
Although the appeal must be dismissed, I note that petitioner retains 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.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 While certain of respondent’s records indicate that this surname is spelled “Canal,” petitioner spelled the name “Canel” in the petition.
 Petitioner obtained custody over her niece pursuant to a final custody order and, therefore, has standing to bring this appeal on her niece’s behalf.
 A vehicle registered to petitioner was used to transport the students from the out-of-district address to the in-district address on December 3, 2019, December 4, 2019 and December 10, 2019.
 On December 4, 2019, after the students entered the in-district address, the car that had transported them to the in-district address departed and then returned and the investigator “believe[d] at least one” of the students entered the car and departed again. On December 10, 2019, respondent terminated surveillance after the students entered the in-district address and the car that had transported them drove away.