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Decision No. 13,478

Appeal of BARBARA HOIST, on behalf of her daughter, JAMILA, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 13,478

(August 31, 1995)

Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent, Jay S. Hellman, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that her daughter, Jamila, is not a resident of the Freeport Union Free School District and is, therefore, not entitled to attend its schools tuition-free. The appeal must be dismissed.

Jamila has attended school in the Freeport Union Free School District ("district") since 1982. At the beginning of the 1994-95 school year, Jamila was an eleventh grader at Freeport High School, using the address of 122 Lillian Avenue, Freeport. In September 1994, Ms. Dollisha Gilliam, a resident of 122 Lillian Avenue, advised the district that petitioner and Jamila had moved and did not reside at 122 Lillian Avenue. Ms. Gilliam also stated that no other children except her own lived there. Based on this information, Mr. Turner, respondent's attendance officer, notified petitioner that Jamila would not be permitted to attend school after September 30, 1994.

Despite this notification, Jamila continued to attend school. Thereafter, Mr. Turner conducted an investigation to determine Jamila's residence. As part of this investigation, Mr. Turner surveilled 122 Lillian Avenue on three consecutive school days in October 1994 and again on November 28, 1994. Mr. Turner also made several site visits to 122 Lillian Avenue. At no time during his surveillance or visits did Mr. Turner observe petitioner or Jamila at that address. In addition, on October 18, 1994, while petitioner was in the district's office, Mr. Turner asked petitioner to accompany him to 122 Lillian Avenue for a site visit. Upon arrival, petitioner denied Mr. Turner general access to the residence, allowing him to observe only the dining area.

On or about November 4, 1994, Mr. Turner observed petitioner and her daughter entering a white Chevrolet at 32 West Roosevelt Avenue, Roosevelt, outside the district. Thereafter, on ten school days from November 9, 1994 through December 13, 1994, Mr. Turner surveilled 32 West Roosevelt Avenue. At least eight times Mr. Turner saw petitioner and Jamila driving from that address to respondent's high school. Mr. Turner also checked with the Department of Motor Vehicles and found that the Chevrolet was registered to petitioner at 32 West Roosevelt Avenue.

By letter dated November 30, 1994, Mr. Turner advised petitioner that his investigation indicated that petitioner did not reside in the district. On or about December 15, 1994, petitioner requested a review of this determination. On February 2, 1995, the district's assistant superintendent for personnel conducted a hearing. At the hearing, petitioner and a friend testified on her behalf. In addition, petitioner submitted two letters, a paycheck and two consecutively numbered rent receipts.

After reviewing all the evidence presented, the assistant superintendent recommended to the superintendent that Jamila be found to be a non-resident. By letter dated March 6, 1995, the superintendent notified petitioner of his determination that petitioner and her daughter were not residents. Thereafter, petitioner appealed the superintendent's determination to respondent. After giving petitioner the opportunity to present additional testimony and evidence, the board voted to uphold the superintendent's determination. The board notified petitioner of its decision by letter dated April 26, 1995. On May 5, 1995, respondent excluded Jamila from school.

Petitioner commenced this appeal on May 16, 1995 and requested a stay. On June 8, 1995, Commissioner Sobol ordered respondent to readmit Jamila to the district's schools pending a determination on the merits.

Education Law '3202(1) provides:

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446). To ascertain whether it is obliged to provide education to a particular student, a board of education is sometimes required to investigate allegations that non-residents are attending schools in the district. Provided a school district has reliable indicators that a student is not a resident, such an investigation is appropriate (Appeal of Blagrove, 32 Ed Dept Rep 629).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374).

Residence is determined based upon an individual's physical presence as an inhabitant within the district combined with the intent to remain (Appeal of Rosen, 33 Ed Dept Rep 443; Appeal of Stokes, 32 id. 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235).

I find that the weight of the evidence supports respondent's determination that petitioner and Jamila are no longer residents of the district. The February 2, 1995 hearing included direct witness testimony and documentary evidence, including a surveillance report that showed petitioner driving Jamila to school from 32 West Roosevelt Avenue on at least eight school days in November 1994. Department of Motor Vehicles records showed that petitioner's car was registered at that address. In addition, the surveillance report indicated that petitioner and Jamila were not observed at 122 Lillian Avenue on four separate surveillance days or on several site visits.

At the hearing, petitioner attempted to explain the surveillance report. Petitioner testified that she kept her car at 32 West Roosevelt Avenue, her mother's house, and claimed her mother exercised control over the car. Petitioner further testified that she and Jamila would leave 122 Lillian Avenue early in the morning by bus to go to her mother's house and then petitioner would drive her mother and several passengers to work before dropping Jamila off at school. Petitioner's testimony about driving her mother to work, however, was directly contradicted by respondent's surveillance. Petitioner also testified that Jamila would stay at her mother's when petitioner had to work late. However, petitioner also testified that she was unemployed. These discrepancies cast serious doubt on petitioner's credibility.

I also find it significant that Ms. Gilliam, a resident of 122 Lillian Avenue, stated that petitioner and Jamila did not reside there. Although petitioner denied knowing Ms. Gilliam, the record shows that in 1991, petitioner submitted to the district an affidavit of residency from Lewis Gilliam, then the alleged owner of 122 Lillian Avenue. I also find it significant that petitioner would not allow the district's attendance officer to see anything other than the dining area at 122 Lillian Avenue. I find that the totality of the evidence supports respondent's finding that Jamila is not a resident of the district.

Petitioner's supporting papers, which were filed with my Office of Counsel, apparently were not served on respondent as required by 8 NYCRR 275.8. Petitioner never applied for or received permission to file her supporting papers with my Office of Counsel as required by 8 NYCRR 276.5. Therefore, they are not properly before me (Appeal of Koller, 32 Ed Dept Rep 485). However, even if I were to consider these papers, they do not establish that respondent's determination is arbitrary, capricious or unreasonable.

The additional papers submitted by petitioner are not conclusive. Among other things, petitioner submitted an unsworn statement from her mother stating that petitioner does not reside at the Roosevelt address. In addition, petitioner submitted a notarized statement from Luretha Butts, stating that petitioner and her daughter reside at 122 Lillian Avenue, together with several handwritten rent receipts signed by Ms. Butts. There is nothing in the record, however, to indicate that Luretha Butts is the owner of 122 Lillian Avenue. In fact, at the February 2, 1995 hearing, petitioner testified that she did not know who owned 122 Lillian Avenue.

Petitioner also submitted a photocopy of her driver's license, a credit union statement, an insurance bill and two paychecks showing her address at 122 Lillian Avenue. However, this evidence, when considered with all the other evidence in the record, is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner and her daughter are not residents of the district.