Decision No. 18,017
Appeal of KAREN RIVERS, on behalf of her children, from action of the Board of Education of the West Babylon Union Free School District regarding residency.
Decision No. 18,017
(July 19, 2021)
Van Nostrand & Martin, attorneys for respondent, William C. Morrell, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the West Babylon Union Free School District (“respondent”) that her three children (the “students”) are not district residents. The appeal must be dismissed.
Petitioner and the students reside at a property located within the geographical boundaries of the Wyandanch school district (the “Wyandanch address”). Since the 2018-2019 school year, however, the students attended respondent’s schools, initially based on the mistaken assumption that the property was located within respondent’s district.
By letter dated May 8, 2019, respondent allowed the students to complete the remainder of the 2018-2019 school year. This letter noted, however, that the students would be excluded for the 2019-2020 school year if petitioner could not provide proof of residency.
By letter dated June 20, 2019, petitioner notified respondent that her family had purchased a home within respondent’s geographical boundaries (the “in-district address”). Petitioner explained that her family intended to renovate the home over the summer and move in by September 2019. Petitioner attached a copy of the bargain and sale deed and building permit application for the in-district address.
In a letter dated September 4, 2019, respondent’s assistant superintendent for human resources (“assistant superintendent”) stated that the students would “not be allowed to attend school after the close of business on October 4, 2019.” The assistant superintendent indicated that his decision was based on “a site visit by our attendance officer and verbal confirmation,” which confirmed that petitioner “d[id] not live” at the in-district address.
By letter dated January 22, 2020, the assistant superintendent informed petitioner and her spouse that the students would “not be allowed to attend school after the close of business on February 21, 2020.” It appears from the record that respondent nevertheless permitted the students to continue to attend its schools.
By letter dated November 16, 2020, the assistant superintendent “confirm[ed] [his] last notification” that the students did not reside in respondent’s district. The assistant superintendent specifically asserted that “ownership of property in the school district does not permit [a] homeowner to attend the schools in the district where the property is located,” and that “homeowners must demonstrate physical occupancy within district guidelines ....” The letter further stated that the students would not be allowed to attend respondent’s schools after December 16, 2020.
Petitioner responded by letter dated December 7, 2020, requesting a “waiver” so that the students could continue attending respondent’s schools. Petitioner explained that she had not yet renovated the in-district address due to personal health issues that began in July 2019. Respondent agreed to consider petitioner’s request at its January 12, 2021 meeting and allowed the students to continue to attend its schools until that time.
By letter dated January 13, 2021, respondent’s assistant superintendent informed petitioner and her spouse that their appeal had been denied. The assistant superintendent stated that the students “would no longer be allowed to attend schools after the close of business on February 11, 2021.” This appeal ensued. Petitioner’s request for interim relief was granted on March 1, 2021.
Petitioner seeks a determination that the students are residents of respondent’s district. Although petitioner admits that the students reside at the Wyandanch address and intend to reside there for the next six years, she requests that I “grant a waiver” for the students to attend respondent’s schools, based on arguments of inclusivity and equity.
Respondent argues that the appeal must be dismissed for improper service. On the merits, respondent contends that petitioner is not entitled to attend respondent’s schools because she is not a district resident and mere ownership of property does not demonstrate residency.
The appeal must be dismissed for lack of personal service. Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).
Here, petitioner’s affidavit of service indicates that personal service was made on the “designated representative” of respondent’s superintendent, who is identified as the “Assistant Superintendent for Human Resources in said district ... who is duly authorized to accept service.” The affidavit does not identify the name of the person served. Respondent indicates that a process server served the petition on Jailin Parada, a secretary who has not been designated by respondent as an individual authorized to accept service on the board or district’s behalf. Petitioner did not submit a reply or otherwise respond to this assertion. Since there is no evidence in the record that petitioner effected personal service on an individual authorized to accept service as required by 8 NYCRR 275.8, the appeal must be dismissed (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,670; Appeals of L.A. and V.A., 57 id., Decision No. 17,424; Application of a Student with a Disability, 57 id., Decision No. 17,391).
Even if respondent had been properly served, the appeal would be dismissed on the merits. Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 ). “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 ; 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 the 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 the record before me, petitioner has failed to meet her burden of proof. The parties agree that petitioner and the students reside at the Wyandanch address, and petitioner asserts that they intend to do so for the next six years. Although petitioner argues that the Wyandanch address is close to the boundary line and associated with the West Babylon Fire Department and post office, the sole inquiry is whether the Wyandanch address is located within respondent’s district, a question that is purely geographical in nature (cf. Appeal of Chen, 60 Ed Dept Rep, Decision No. 17,907). Similarly, the students’ educational and extracurricular achievements, while laudable, are inapposite to the location and school district designation associated with the Wyandanch address.
Petitioner further requests that I “grant a waiver” so that the students may continue to attend respondent’s schools. Petitioner bases her request on concerns over educational equity as well as the perceived desirability of attending respondent’s district. The Court of Appeals has held that, consistent with Education Law § 3202, “every school district must provide tuition-free education only to students whose parents or legal guardians reside within the district” (Longwood Cent. Sch. Dist. v Springs Union Free Sch. Dist., 1 NY3d 385, 389  [internal quotation marks and citation omitted]; see also Matter of Wertman v New York State Educ. Dept. et al., Sup Ct, Albany County, Dec. 30, 2019, Cholakis, J., index No. 904817-19 [so holding and citing Longwood]). Therefore, I have no authority to disregard Education Law § 3202 (1), particularly given the unambiguous interpretation it has been afforded by the Court of Appeals (see Appeal of W.Z. and A.Z., 55 Ed Dept Rep, Decision No. 16,793).
Petitioner further complains that there is a long history of educational inequality for African American students on Long Island resulting in, for example, the location of the district’s boundary lines. My review in this appeal, however, is limited to the issue of whether respondent’s residency determination was arbitrary or capricious. Any argument that non-residents should be allowed to attend respondent’s schools due to the present effect of historical discrimination must be addressed to a court of competent jurisdiction.
Finally, I note that petitioner’s ownership of the in-district address does not render the students eligible to attend respondent’s schools because the fact that a child’s parent or guardian rents or owns property in the district or pays taxes in the district does not, in and of itself, establish residency for purposes of Education Law § 3202 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863).
While nothing herein should be construed as minimizing the serious concerns petitioner raises regarding discrimination and educational equity, there is no basis in the record to grant petitioner’s requested relief. I have considered petitioner’s remaining contentions and do not find that they compel a contrary conclusion.
THE APPEAL IS DISMISSED.
END OF FILE
 Although a district resident who is temporarily absent from the district may be permitted to maintain residency status during such absence, this doctrine does not apply under the facts of this case as there is no indication in the record that petitioner has ever resided within respondent’s district (see e.g. Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of Zhang and Xue, id., Decision No. 16,733; Appeal of Lin, 48 id. 166, Decision No. 15,827).