Appeal of MAGDALA MURPHY, on behalf of her children, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency.

Decision No. 18,018

(July 19, 2021)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her two children (“the students”) are not district residents and therefore, not entitled to attend the district’s schools tuition-free.  The appeal must be sustained.

Petitioner first registered the students in respondent’s district in September 2009.  At that time, petitioner submitted proof that she and the students resided at a location within the district.  In 2012, petitioner and the students moved to a second address within the district.  The record reflects that, in 2016, petitioner and the students were “[d]isplaced” from their home and began living at a hotel located within respondent’s district.  The record reflects that respondent deemed the students homeless and they continued to attend respondent’s schools.

In August 2019, respondent received information that the students no longer resided at the hotel.  In response to an inquiry from respondent’s transition coordinator, petitioner submitted a letter from the hotel’s general manager.  This letter verified the dates of petitioner’s prior hotel stays and identified upcoming reservations through December 2019.  Respondent thereafter ceased its investigation into petitioner’s residency.

In spring 2020, respondent renewed its efforts to investigate petitioner’s residency.  In an email dated May 6, 2020, the transition coordinator requested that petitioner submit additional evidence confirming her residence at the hotel.  Petitioner did not respond.  The transition coordinator reiterated her request in an email dated June 11, 2020.

On June 17, 2020, the transition coordinator spoke with a hotel employee, who informed her that petitioner had “not lived [there] since the beginning of March.”  The transition coordinator spoke with petitioner’s ex-spouse the following day, who asserted that petitioner resided outside of the district in Brooklyn, New York (the “out-of-district address”).  Respondent also entered petitioner’s name into two internet search databases; the results associated her with the out-of-district address.  The record reflects that the out-of-district address belongs to petitioner’s mother; petitioner asserts that she visits there “on some weekends and in emergency situations.”

In a combined residency/homeless determination dated June 19, 2020, respondent’s Assistant Superintendent for Finance and Facilities (“assistant superintendent”) determined that the students were “no longer eligible to attend the public schools” of the district because petitioner and the students were “permanently housed” at the out-of-district address.  The assistant superintendent indicated that the students would be excluded from school by June 26, 2020 unless petitioner could demonstrate that the students resided within respondent’s district or lacked a fixed, regular and adequate nighttime residence.

In an email to the transition coordinator dated June 23, 2020, petitioner indicated that she had lived at a different location since mid-March 2020 “[d]ue to Covid19,” but had returned to the hotel as of June 23, 2020.  Petitioner provided respondent with a letter from the general manager of the hotel stating that petitioner and the students were currently staying at the hotel and that she had booked future reservations through June 21, 2021. 

In a letter dated August 19, 2020, the assistant superintendent determined that petitioner and the students did not reside within the district.  The assistant superintendent based her decision on “unsolicited reports, public records and information shared by [a] [hotel] representative,” as well as the “information that [petitioner] submitted to the District by June 24, 2020.”  As a result, the students would be “excluded from attending school in the District effective immediately.”  This appeal ensued.  Petitioner’s request for interim relief was granted on September 3, 2020.

Petitioner claims that the students live with her at the hotel.  Petitioner maintains that the students do not live in any other “permanent address in the state.”  Petitioner admits that the students visit a relative at the out-of-district address on a periodic basis, but asserts that they do not reside permanently at that address.  For relief, petitioner requests a finding that the students are residents of respondent’s district and entitled to attend its schools without payment of tuition.

Respondent contends that its residency determination was based on credible evidence and, as such, was neither arbitrary nor capricious.  Respondent also argues that petitioner is precluded from alleging that she is homeless as she did not appeal that portion of respondent’s June 19, 2020 determination.

Initially, I must address a procedural issue.  In a reply, petitioner contends, among other things, that the students are “eligible for assistance under the ... McKinney Vento Act.”  Respondent objects to the scope of petitioner’s reply and requests that it be allowed to respond to any newly raised contentions in a sur-reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Accordingly, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Consequently, it is unnecessary to consider respondent’s sur-reply (Appeal of Pulizzi, et al., 57 Ed Dept Rep, Decision No. 17,249).[1]

Turning to 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.”  “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 [2004]; 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). 

Here, petitioner has met her burden of proving that the student is a district resident.  As indicated above, petitioner asserts that she moved back to the hotel on June 23, 2020.  She has produced a letter from the general manager corroborating this assertion, as well as proof of future reservations for approximately a year thereafter.  Respondent does not contest that petitioner and the students have resided at the hotel in the past.  I find, therefore, that petitioner has made a prima facie showing of residency within the district.

Respondent has not produced evidence sufficient to rebut this showing.  First, to the extent respondent argues that petitioner did not reside at the hotel for a time prior to June 2020, petitioner admits as much, stating that she did not reside at the hotel from approximately March to June 2020 due to the COVID-19 pandemic.  This temporary absence is consistent with:  (1) the representation of petitioner’s ex-spouse that, as of June 17, 2020, petitioner “ha[d] not lived at the [hotel] since the beginning of March ...”; and (2) the representation of the hotel employee that petitioner no longer lived at the hotel as of June 17, 2020.  While the parties did not explore this issue at length, I find that petitioner’s absence was temporary in nature and did not result in a relinquishment of her residence (see e.g. Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).[2]

Respondent also contends that the results of two internet searches prove that petitioner resides at the out-of-district address.  The first search, conducted using the website “spokeo.com,” indicates that petitioner “resides in Brooklyn, NY.”  The second search, conducted using the website “Nuwber.com,” indicates that petitioner has been living at or near the out-of-district address since 2013.  These internet search results are of little probative value because there is no evidence in the record as to where, or how, the internet search providers obtained the information concerning petitioner’s alleged residence.  While an internet search may prove a useful starting point in determining an individual’s residency, generic search results in and of themselves have little persuasive value (Appeal of Crawford, 59 Ed Dept Rep, Decision No. 17,785; Appeal of A.D.J., 56 id., Decision No. 16,973; cf. Appeal of the Board of Educ. of the East Ramapo Cent. Sch. Dist., 58 id., Decision No. 17,456).  Moreover, the information from Nuwber.com is inconsistent with the evidence in the record:  while the website claims petitioner has resided at the out-of-district address since 2013, the record demonstrates that petitioner resided at two separate addresses within respondent’s district until 2016, and the hotel thereafter (which is also within respondent’s district).

Additionally, the fact that petitioner only submitted receipts to respondent reflecting hotel reservations for 34 percent of the time period between January 2019 and March 2020 does not, as respondent suggests, prove that she resided outside of the district for the remaining 66 percent of the time.  These receipts constitute probative evidence of petitioner’s physical presence at the hotel during those times.  Respondent would have to produce direct or persuasive evidence, such as surveillance, to prove that petitioner resided outside of the district for the remaining 66 percent of the time, which it has not done.  Therefore, I find no basis in the record to support respondent’s speculation that petitioner resides at the out-of-district address.[3]

Finally, I admonish respondent to ensure that it provides legally sufficient written notice consistent with 8 NYCRR 100.2 (y) (6) when rendering a determination of non-residency (see Appeal of a Student with a Disability, 36 Ed Dept Rep 81, Decision No. 13,664 [remanding residency decision to district for failure to fully comply with 8 NYCRR 100.2 (y)]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the students to the schools of the district without the payment of tuition.

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