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Decision No. 14,163

Appeal of JACKLYN SMITH, on behalf of LAUREN and ASHLEY ROMANS, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 14,163

(July 15, 1999)

McGuire, Kehl & Nealon, LLP, attorneys for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that her children, Lauren and Ashley Romans, are not residents of the district. The appeal must be dismissed.

Petitioner alleges that, as a result of losing the lease on a house she and her children were occupying, she and her children are temporarily residing with her brother, Raymond Colwell, at his residence located in respondent's district and that they intend to reside at that address until other permanent housing can be secured within the district.

Respondent alleges that, based upon its investigations, petitioner and her children reside outside of respondent's district at an address in White Plains, New York. By letter dated April 5, 1999, respondent's director of pupil services informed petitioner of the district's determination that she and her children did not reside within the district and were therefore ineligible to attend its public schools. Petitioner commenced this appeal by serving a copy of her petition on the district clerk on May 11, 1999. Thereafter, respondent, while still contending that petitioner and her children are not residents of the district, nevertheless permitted the children to complete the 1998-99 school year at its schools in order to avoid disruption to their education.

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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675). Residency is based, in part, upon an individual's physical presence as an inhabitant within the district and upon the individual's intent to remain (Appeal of Keenan, 36 Ed Dept Rep 6, Decision No. 13,635; Appeal of Bowers, 34 id. 603, Decision No. 13,424; Appeal of Anthony S., 32 id. 93, Decision No. 12,769).

The affidavit of respondent's director of pupil services indicates that the district became aware that petitioner and her children may not reside in the district on October 30, 1998, when Ashley Romans stated to an assistant principal that she lived at an address in White Plains, New York; that when petitioner was thereafter asked to produce bills or other documentation to verify that she and her children resided at her brother's address in the district, petitioner stated that she did not get mail at that address; and that despite being provided a subsequent opportunity to submit information to the district to verify her residency, petitioner never submitted such information.

It also appears that in a letter to the director of pupil services, dated November 23, 1998, petitioner acknowledged that she receives "most of my mailings at a White Plains address". The record further indicates that an attendance officer employed by respondent visited the address of petitioner's brother, Raymond Colwell, on February 10, 1999, a day when school was in session, at 7:35 a.m., and was informed by an individual who identified himself as Raymond Colwell, that Ashley Romans and petitioner were not present and did not live at that address. The attendance officer's affidavit indicates that he subsequently made six additional early morning visits to Mr. Colwell's address on February 27, February 28, March 3, March 4, March 5 and March 8, 1999, between 7:20 and 7:30 a.m., and on each occasion he rang the apartment bell and waited approximately ten minutes, but that no one answered the bell or permitted him to enter the premises. The attendance officer further states in his affidavit that on Thursday, May 20 and Friday, May 21, 1999 at approximately 7:10 a.m., he went to petitioner's White Plains address and observed an automobile registered to petitioner in the residence's driveway. On May 20, 1999, at approximately 7:30 a.m., he observed a male driver and Ashley Romans leave the residence in an automobile and followed them to a highway exit in New Rochelle. On May 21, 1999, he observed the same driver leave the White Plains residence with Ashley and Lauren Romans in the car and followed the vehicle along the same highway route as the day before and observed the driver drop off Lauren at the New Rochelle High School at 8:00 a.m. and drop off Ashley at the Davis School in New Rochelle at approximately 8:10 a.m.

Other than bare statements that she and her children reside at her brother's address within the district, petitioner offers no evidence in support of her position. However, I note that petitioner states in her petition that as of March 6, 1999, she and her children reside at the White Plains address "on weekends only to relieve the host family of the constant presence in their home. Additionally, Lauren and Ashley stay at the aforementioned White Plains address when [petitioner] is traveling on business." Furthermore, on a "host" form provided by the district to establish residence of students, petitioner crossed out a reference to the address provided on the form as being her "sole" home and merely indicated that such address was her "primary" home. In addition, on another district form petitioner listed as a "relative" and the first "back-up adult" in the event of an emergency requiring the early dismissal from school of Ashley Romans, a Mr. Solomon Funny, an individual who resides at the same White Plains address claimed by petitioner, and who is identified by the attendance officer in his affidavit as the owner of the automobile that was used to drive the children to school on May 20 and 21, 1999.

In view of the available evidence as set forth above, petitioner's frequent use of the White Plains address, and petitioner's inability or failure to provide greater proof of her residence at her brother's address, I find that respondent's determination that she and her children are not residents of the district is neither arbitrary, capricious nor unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for admission on her children's behalf at any time (Appeal of Blagrove, 32 Ed Dept Rep 629, Decision No. 12,937; Appeal of Colas, 32 id. 128, Decision No. 12,781).