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Decision No. 14,412

Appeal of LAWRENCE A. WHITFIELD, SR., on behalf of LAWRENCE A. WHITFIELD, JR., from action of the Board of Education of the Gates-Chili Central School District regarding residency.

Decision No. 14,412

(July 31, 2000)

Harris, Beach & Wilcox, LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Gates-Chili Central School District ("respondent") that his son is not a resident of the district. The appeal must be dismissed.

Petitioner is the father of Lawrence A. Whitfield, Jr. His son has attended respondent’s high school since September 1998. At various times during the 1999-2000 school year, at least 15 students advised respondent’s assistant high school principal that petitioner’s son did not reside in the district. This information, in conjunction with the fact that Lawrence, Jr. arrived late to school several times in 1999, prompted the assistant principal to request that the district’s attendance teacher, Fred Davis, investigate. Mr. Davis surveilled petitioner’s alleged district residence at 57 Barney Lane three times: December 7 and 15, 1999, and February 16, 2000. On all three days Mr. Davis observed the property from 6:55 a.m. until 7:35 a.m. He saw no activity at the house and did not see petitioner’s son emerge from the house during that time. Upon checking attendance records for those three days, Mr. Davis discovered that Lawrence, Jr. was in class by 7:25 a.m. each day. On February 16, 2000, Lawrence, Jr., in response to Mr. Davis’ questioning, stated that he had spent the night at his mother’s house, which is outside of respondent’s district. Mr. Davis also determined that petitioner did not own the residence at 57 Barney Lane.

Respondent conducted a residency hearing on February 28, 2000. Petitioner, though present at the hearing, offered no evidence of residency. Based upon the lack of rebuttal evidence, the hearing officer determined that petitioner’s son was not a legal resident of the district. By letter dated March 2, 2000, petitioner was informed that his son was not a district resident and that he had until March 13, 2000 to withdraw from school. This appeal ensued. Interim relief allowing petitioner’s son to attend school for the pendancy of this appeal was granted on April 11, 2000.

Petitioner contends that he lives with his son at 57 Barney Lane, within respondent’s district, and that they intend to live there for at least another two years. He also alleges that Lawrence, Jr. spends some weekends and other special family events with his mother, who lives outside of the district.

Respondent alleges that petitioner’s son does not live at 57 Barney Lane. As part of its investigation, respondent determined that the car driven by Lawrence, Jr. is registered to petitioner at an address in the city of Rochester, outside the district. Respondent also states that a number of students told the assistant principal that Lawrence, Jr. admitted that he does not live in the district. Respondent maintains that these facts, in conjunction with the surveillance report, support its contention that petitioner’s son is not a district resident.

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 Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Residency, for purposes of Education Law "3202, is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Dimbo, supra; Appeal of Daniels, supra;Appeal of Anand, 35 Ed Dept Rep 65, Decision No. 13,466).

Other than his bare assertion that he and his son reside within the district, petitioner offers nothing to rebut respondent’s evidence. I therefore find respondent’s determination that petitioner’s son is not a district resident to be neither arbitrary, capricious nor unreasonable. Accordingly, respondent’s determination will not be set aside (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Digilio, 37 id. 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).