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Decision No. 13,825

Appeal of MARIA SCHWARTZBURT, on behalf of her son, SHAUN MORALES, from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 13,825

(August 29, 1997)

Guercio & Guercio, attorneys for respondent, Maureen Halloran, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that her son, Shaun Morales, is not a district resident entitled to attend its schools tuition free. The appeal must be dismissed.

Petitioner's son was first admitted to respondent's school district in September 1996 as an eighth grader. In January 1997, petitioner and her son moved to 59 Dewitt Street, Valley Stream, which is in the Elmont Union Free School District ("Elmont"). Elmont is located within the Sewanhaka Central High School District. After a hearing for the purpose of determining residency, by letter dated February 27, 1997, respondent's superintendent notified petitioner that Shaun would be excluded as of March 7, 1997 because he no longer resided within the district. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on April 24, 1997.

Petitioner contends that she and Shaun were forced to move because the house that they were renting in respondent's school district was sold and that they are temporarily living with her mother in Elmont while she looks for a permanent residence within respondent's school district.

Respondent contends that its determination that petitioner and her son do not reside within its school district was not arbitrary and capricious, and therefore must be upheld. Respondent provides a copy of petitioner's driver's license, which was issued on April 28, 1993 and expired on April 29, 1997, bearing the 59 Dewitt Street address and argues that since petitioner lived at the Dewitt Street address before and after the four months that she lived within the district, her residence at Dewitt Street is more than temporary.

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446).

For the purposes of Education Law '3202(1), a person can have only one legal residence (Appeal of a Student with a Disability, 36 Ed Dept Rep 113; Appeal of Britton, 33 id. 198). A "residence" means "domicile" which is established by one's physical presence and the intention to remain there permanently (Appeal of Doyle-Speicher-Maldonado, 35 Ed Dept Rep 110; Appeal of Cupid, 34 id. 609). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Britton, supra; Appeal of Edward K., 32 Ed Dept Rep 112; Appeal of Richards, 25 id. 38). Nor does a person's temporary absence from one's district of residence necessarily constitute establishment of a residence in the district where temporarily located or abandonment of one's permanent residence. Accordingly, students whose families lose their permanent home due to circumstances beyond their control, who are forced to make temporary arrangements outside their district of residence and whose actions reflect an intent to return to the district, do not lose their right to attend school in the district where they previously lived (Appeal of Mountain, 35 Ed Dept Rep 382). To determine one's intent, evidence regarding the family's continuing ties to the community and their efforts to return are relevant (Appeal of Kenneth R., 30 Ed Dept Rep 297; Appeal of Tynan, 28 id. 4; Appeal of Woodward, 27 id. 442). In such cases the family must demonstrate, on the record, evidence of continuing efforts to return to the district of residence.

Where evidence is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioners and their children are not residents of the district, the determination will not be set aside (Appeal of Steinberg, 36 Ed Dept Rep 65). Petitioner alleges that her absence from respondent's school district is temporary and that she is seeking permanent housing within the district, but she provides no evidence of continuing ties within the district or ongoing efforts to return. Thus, the evidence before me is insufficient to conclude that respondent acted arbitrarily or capriciously in determining that petitioner and her son are not residents of the district. Accordingly, respondent's determination will not be set aside.