Decision No. 13,704

(November 23, 1996)

MILLS, Commissioner.--Petitioner challenges the determination of the Freeport Union Free School District ("respondent") that he is not a resident entitled to attend its schools tuition-free. The appeal must be sustained.

Petitioner, age 18, alleges that he supports himself on his mother's social security death benefits and that he has never lived with his father. During the 1994-95 school year, petitioner lived with his sister and brother at 54 East Dean Street, Freeport and attended respondent's school district. On or about September 1, 1995, petitioner's sister and brother moved to 1041 Schuman Place, Baldwin. Petitioner alleges that at that time, he moved in with his aunt at 235 St. Marks Place, Freeport.

By letter dated January 4, 1996, respondent's attendance officer notified petitioner's sister that since she no longer resided within the school district, petitioner would be excluded from district schools. Respondent's determination was based on surveillance conducted at the East Dean Street, Freeport and Baldwin addresses on seven dates between November 14, 1995 and December 1, 1995. Marvin was not observed at the Freeport address. However, he was seen leaving for school from the Baldwin address on four of those dates and returning to the Baldwin address after school one time.

A residency hearing was held on February 1, 1996. Petitioner's sister testified that because her aunt works long hours as a nurse, petitioner spends a lot of time with her and their brother and sometimes spends the night with them in Baldwin. She also testified that her aunt was hospitalized during the time of the surveillance.

By letter dated February 13, 1996, respondent notified petitioner's sister that he would be excluded from school after March 1, 1996 because he was not a district resident. Based on a letter petitioner's sister wrote to me regarding this issue, respondent allowed petitioner to complete the 1995-96 school year. Petitioner commenced this appeal on August 23, 1996. Petitioner's request for interim relief pending a determination on the merits was granted on September 6, 1996.

Respondent first contends this appeal should be dismissed as untimely. Section 275.16 of the Commissioner's regulations requires that an appeal be instituted within 30 days after the making of the decision or the performance of the act of which the petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause. In a residency case such as this, petitioner retains the right to reapply for admission to the district at any time, and then to appeal from any denial of admission (Appeal of Brunot, 35 Ed Dept Rep 402; Appeal of Blagrove, 32 id. 629; Appeal of Colas, 32 id. 128). Therefore, petitioner's delay in commencing this appeal is excused.

Respondent contends that petitioner fails to state a claim upon which relief can be granted. Commissioner's regulation '275.10 requires a petition to contain a claim showing that petitioner is entitled to relief and a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioner's claim and the act(s) complained of. Petitioner's claims against respondent and the relief requested are apparent and respondent has addressed those claims in its answer. Therefore, I will not dismiss this appeal for failure to state a claim.

Education Law '3202(1) provides in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education only to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Warburton, 35 id. 74). Residence for purposes of Education Law '3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn v. Board of Educ., 64 Misc. 2d 60; Appeal of Anand, 35 Ed Dept Rep 65) and an intent to reside in the district (Appeal of Anand, supra; Appeal of Varghese, 34 Ed Dept Rep 455). In support of his residency at St. Marks Place, Freeport, petitioner provides a notarized statement from his aunt, his social security application form dated February 7, 1996 and signed by the social security interviewer, a receipt dated March 11, 1996 from the Nassau County Federal Credit Union, a copy of the social security "Report of Student Beneficiary at End of School Year" dated June 1996, and three envelopes addressed to him at the St. Marks Place address. Respondent argues that petitioner resides with his brother and sister in Baldwin and provides a surveillance report indicating that petitioner left for school from that address on four mornings and returned there after school one afternoon. Respondent also relies on petitioner's sister's testimony that petitioner spends a lot of time with her and her brother at their residence. Based upon these facts, I find respondent's evidence insufficient to support its determination. Given the existence of documentary evidence of Marvin's residence in Freeport, and the reasonable explanation for his presence at his sister's address in Baldwin, respondent's decision to deny petitioner admission to school is arbitrary, capricious, and an abuse of discretion. Accordingly, it will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Marvin Moore Hough to attend school in the Freeport Union Free School District without the payment of tuition.

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