Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,922

(September 4, 2020)

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

ROSA., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her child (“the student”) is not eligible to attend the district’s schools tuition-free as a resident.  The appeal must be dismissed.

Petitioner enrolled the student in respondent’s district to begin kindergarten in the 2012-2013 school year, using an address within the geographical boundaries of respondent’s district (“the in-district address”).  In September 2019, respondent attempted to mail a letter to petitioner at the address on file for the student.  However, this letter was returned undeliverable.  The district conducted public records searches which revealed that the in-district address had been sold over the summer and that the student and the student’s older brother resided in Jamaica, New York (“the out-of-district address”).  Respondent thereafter commenced an investigation into the student’s residency.

Respondent conducted surveillance at the in-district address during the early morning on October 24, 25, 28, 29, 30, and 31, 2019, commencing at approximately 6:00 a.m. each day.  On each day of surveillance, petitioner and the student were not observed at the in-district address.  On four of those days, a red pickup truck, which respondent determined does not belong to petitioner, was observed in the driveway.  Respondent also conducted surveillance at the out-of-district address on the same dates at the same times.  Petitioner and the student were observed on all six days at the out-of-district address, and three vehicles registered to the family were observed at the out-of-district address.

In a letter dated November 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 November 22, 2019 to discuss the student’s residency.

A residency meeting was held by telephone on November 22, 2019.  During the meeting, petitioner explained that the in-district address was in foreclosure and admitted that the family was not living in Baldwin but was looking for a place to move to within respondent’s district.  Petitioner indicated that she believed the student could attend school in Baldwin because she was paying property taxes in respondent’s district.

In a letter dated November 22, 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 November 27, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 13, 2019.

Petitioner argues that the student should be permitted to attend school in respondent’s district because she pays property taxes in respondent’s district and their move outside of the district is temporary.  Petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend its schools without payment of tuition.

Respondent argues that the student cannot be permitted to attend its schools because petitioner acknowledged that she lives outside of respondent’s school district, which was corroborated by respondent’s surveillance evidence.  Additionally, respondent asserts that proof of tax payments is not sufficient to entitle the student to attend its schools tuition-free.

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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).

Based on the record before me, petitioner has failed to meet her burden of proving that she resides at the Baldwin address.  Initially, petitioner admits that she and the student do not reside within respondent’s district.  Although petitioner indicates in the petition that she seeks to return to respondent’s district, she has produced no evidence of the family’s continuing ties to the community or their efforts to return (see e.g. Appeal of Kilpatrick, 59 Ed Dept Rep, Decision No. 17,750; Appeal of Tunison, 58 id., Decision No. 17,472; Appeal of Valcin, 58 id., Decision No. 17,441).  As such, she has failed to meet her burden of proving that she and her family are only temporarily absent from the in-district address (Appeal of Griffin, 58 Ed Dept Rep, Decision No. 17,447; Appeal of Tunison, 58 id., Decision No. 17,472; Appeal of A.D., 57 id., Decision No. 17,313).

Moreover, petitioner’s payment of taxes to respondent’s district does not make the student a resident.  It is well-settled that 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).[1]

While the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on the student’s behalf 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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