Decision No. 17,919
Appeal of KRISTEN LAJUETT, on behalf of her son NICOLAS SANFORD, from action of the Board of Education of the Lyme Central School District regarding residency.
Decision No. 17,919
(September 4, 2020)
Office of Inter-Municipal Legal Services, attorneys for respondent, George R. Shaffer III, Esq., of counsel
Rosa., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Lyme Central School District (“respondent”) that her son Nicolas (the “student”) is not a district resident. The appeal must be dismissed.
The record reflects that, on August 14, 2019, petitioner appeared at the district offices of the General Brown Central School District (“General Brown”) and attempted to enroll her son for kindergarten. During the registration process, petitioner identified her address as a location within General Brown’s district (the “out-of-district address”). General Brown’s district registrar informed petitioner that, in September, the student would be assigned to a general education classroom that offered integrated co-teaching services. Petitioner stated “that her son did not need special education services,” to which the district register replied that “many of the students in th[e] classroom were general education students.” The district registrar further indicated that the student was enrolled in the class for administrative reasons, not as “a reflection of [his] aptitude.”
On August 15, 2019, petitioner visited General Brown’s district office and demanded to speak to the superintendent. According to an affidavit from General Brown’s secretary to the superintendent, petitioner “raised her voice and said she was not going anywhere until she spoke to the Superintendent.” Petitioner expressed frustration that her student would be placed in an “integrated classroom.” When petitioner continued to yell and cause disruption, the secretary called the police department. After this phone call was completed, petitioner exited the district office.
On August 27, 2019, petitioner attempted to register her child for kindergarten in respondent’s district. Petitioner’s completed registration paperwork contained references to both an address located within respondent’s district (the “in-district address”) as well as the out-of-district address. Respondent’s superintendent subsequently met with petitioner to discuss this discrepancy. Petitioner indicated that she lived at the in-district address while her husband, from whom she was estranged, lived at the out-of-district address. Respondent enrolled the student based on petitioner’s representations.
Over the next few months, respondent suspected that petitioner may not reside within the district because: (1) petitioner and her husband were observed together on several occasions, which belied petitioner’s explanation that they were estranged; (2) the student did not typically utilize district transportation and, when he did, petitioner was waiting for him in a running car; and (3) the student informed a teacher that he lived with his sister in Pillar Point, New York, which is located within the boundaries of General Brown’s district. Respondent thereafter initiated a residency investigation, which included surveillance conducted by a school resource officer (“SRO”). The SRO conducted surveillance on eight separate days in December 2019 and January 2020. His findings are summarized below:
- On December 17, petitioner’s vehicle was observed at the out-of-district address at 7:45 a.m. At 8:10 a.m., petitioner dropped the student off at school. Sometime after 9:10 a.m., the SRO observed the in-district address and, despite snow fall, there were no visible signs that a vehicle had departed the location (e.g. tire tracks). In the afternoon, petitioner picked the student up at the bus in her running car and proceeded to drive him to the out-of-district address.
- On December 18, at 9:40 a.m., the SRO observed petitioner’s car at the out-of-district address (school had been delayed by two hours due to snow).
- On December 19, two cars, including petitioner’s, were observed running in the driveway of the out-of-district address at 7:45 a.m. Petitioner proceeded to drive to school and drop the student off. Petitioner’s car was later observed parked at the out-of-district address at 2:50 p.m. During the day, the SRO drove by the in-district address several times but did not observe petitioner’s vehicle.
- On December 20, Petitioner’s vehicle was observed at the out-of-district address at 7:50 a.m. Petitioner dropped the student off at school at 8:10 a.m. The SRO drove by the in-district address in the “late morning” but did not observe petitioner’s vehicle. The SRO then proceeded to the out-of-district address and observed the vehicle there. The vehicle was still present at 10:00 p.m.
- On January 6, petitioner’s vehicle was observed at the out-of-district address at 7:55 a.m. At 8:15 a.m., petitioner dropped the student off at school in her vehicle.
- On January 8, petitioner’s vehicle was observed at the out-of-district address in the morning. At 8:10 a.m., petitioner dropped the student off at school in her vehicle. Petitioner thereafter returned to the out-of-district address.
- On January 9, petitioner’s vehicle was observed at the out-of-district address at 7:40 a.m. At 8:12 a.m., petitioner dropped the student off at school in her vehicle. At 8:50 a.m., the SRO drove to the in-district address and petitioner’s vehicle was not present. Petitioner thereafter returned to the out-of-district address, where petitioner’s vehicle was parked.
- On January 10, petitioner’s vehicle was observed at the out-of-district address at 7:50 a.m. At 8:10 a.m., petitioner dropped the student off at school in her vehicle. Petitioner’s vehicle was thereafter observed at the out-of-district address at 9:10 a.m.
The SRO also obtained social media postings by petitioner suggesting that petitioner lived at the out-of-district address.
In a letter dated January 16, 2020, the superintendent informed petitioner of her determination that petitioner and the student did not reside within respondent’s district. The superintendent indicated that the district’s determination was based upon its surveillance evidence, social media postings by petitioner, and the student’s statement that he resided with his sister in Pillar Point, New York. The superintendent indicated that petitioner should “immediately” submit any “additional evidence or documentation” that she wished the district to consider. Otherwise, the superintendent indicated, her decision would be final. This appeal ensued. Petitioner’s request for interim relief was denied on February 19, 2020.
Petitioner argues that she and the student have lived at the in-district address for six months (i.e. since August 2019). Petitioner claims that the student sometimes stays “overnight” with his father at the out-of-district address, but that this is “less than 50% of the time.” Petitioner claims that she was observed at the out-of-district address because she operates a business at that location, and that she and the child’s father have a co-parenting relationship. For relief, petitioner seeks a determination that the student is a district resident entitled to attend its schools without payment of tuition.
Respondent asserts that petitioner’s documentary evidence and unsubstantiated claims do not overcome the evidence upon which it based its determination. Respondent claims that the documents petitioner has produced on appeal were only created to establish the appearance of residency within the district. Respondent alleges that its residency decision was not arbitrary or capricious.
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, petitioner has failed to demonstrate that respondent’s determination was arbitrary or capricious. In support of her claim that she physically resides within respondent’s district, petitioner submits vehicle registration information, a copy of her driver’s license, a Jefferson County Board of Elections change of enrollment verification, and a petition for custody and visitation bearing the in-district address. While I have reviewed these documents and they are entitled to some weight, they are 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)). Additionally, while petitioner submits a mediation agreement between her and the student’s father, this document does not affect the student’s residency insofar as it indicates that petitioner has exclusive physical custody of the student.
As discussed above, respondent conducted surveillance at the in-district and out-of-district addresses between December 17, 2019 and January 10, 2020. Although petitioner claims she stays at the out-of-district address approximately two nights per week, and no more than 50 percent of the time, this is contradicted by respondent’s surveillance evidence, which consistently depicted petitioner at the out-of-district address. Indeed, petitioner and the student were observed at the in-district address on only one occasion, when petitioner picked the student up from the school bus in her vehicle and immediately drove him to the out-of-district address. By contrast, petitioner’s vehicle was observed at the out-of-district address on each morning of the remaining seven days of surveillance, and she subsequently dropped the student off at school while driving this car on six of those seven days. In light of this evidence, petitioner’s explanation that she spends less than half of her time at the out-of-district address is possible, but not probable (see Appeal of Keating, 59 Ed Dept Rep, Decision No. 17,744; Appeal of Allen, 59 id., 17,726). Indeed, during the week of January 6, respondent observed petitioner’s vehicle at the out-of-district address on four out of five weekday mornings (i.e. January 6, 8, 9, and 10, 2020), after which she proceeded to drop the student off at school.
Beyond its surveillance, additional evidence in the record supports respondent’s determination. First, the student asserted that he lived with his sister in Pillar Point, which respondent indicates is within General Brown’s district, and that he gets picked up at the in-district address because his house is 10 miles away. Second, respondent submits social media postings suggesting that petitioner resides at the out-of-district address. For example, in an October 31, 2019 posting, petitioner referred to a “fenced in yard,” which the SRO explains is only present at the out-of-district address. Petitioner does not address or explain this evidence, which was disclosed in the superintendent’s January 16, 2020 exclusion letter.
Finally, petitioner has submitted photographs, communications, and documents that demonstrate that she operates a craft business at the out-of-district address. Petitioner suggests that she was observed at the out—of-district address in connection with her business. While petitioner’s explanation might explain her presence during the daytime hours, respondent’s surveillance evidence depicted petitioner driving the student from the out-of-district address in the early morning to school. Petitioner does not assert that the nature of her business required late night, or overnight, operation. Thus, on this record, I cannot find that petitioner has sufficiently explained her or the student’s presence at the out-of-district address (Appeal of Keating, 59 Ed Dept Rep, Decision No. 17,744).
Therefore, I cannot find respondent’s determination that the student is not a district resident to be arbitrary or capricious. I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and general education students. School personnel assigned to each class must minimally include a special education and a general education teacher. A school district may include up to 12 students with disabilities in such a classroom unless it obtains a variance (8 NYCRR §200.6[g]).
 The SRO further indicates that he drove by the in-district and out-of-district addresses multiple times while school was on winter break between December 23, 2019 and January 3, 2020 and “consistently” observed petitioner’s vehicle at the out-of-district address.
 An attorney representing petitioner requested reconsideration of the superintendent’s decision by letter dated January 23, 2020. The record does not contain any response to this letter.
 With its answer, respondent submitted affidavits and correspondence from General Brown confirming that the student was eligible to attend its district as a resident or, if petitioner chose, to submit a notice of intention to instruct at home (see 8 NYCRR §100.10[b]).
 Respondent’s schools were delayed by two hours on December 18, 2019, the one day where the SRO did not observe the student being dropped off at school.