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Decision No. 14,437

Appeal of SHENNA RAY-DELOACHE, on behalf of MALCOLM JAMAL RAY, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,437

(August 15, 2000)

Milton L. Slaughter, Esq., attorney for petitioner

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her son, Malcolm, is not a resident of the district. The appeal must be dismissed.

Malcolm was admitted to respondent’s schools based upon an application submitted by petitioner in August 1998. On the application, petitioner averred that she and Malcolm resided with her mother, who owns a home within the district. Petitioner also indicated on the application that another one of her children resided with petitioner and Malcolm at her mother’s home, but that that child attended a public school in a neighboring district. In December 1999, a piece of mail sent by respondent to petitioner was returned to respondent. The envelope was marked "moved", "return to sender", and listed an address for petitioner outside the district.

By letter dated January 10, 2000, petitioner was advised that respondent had determined that Malcolm was not entitled to attend the district’s public schools because his actual residence was outside of the district. On January 24, 2000, in response to petitioner’s request, respondent’s designee for residency determinations conducted an administrative review of respondent’s determination. Petitioner was in attendance at the administrative review, and was offered an opportunity to present evidence regarding her and Malcolm’s residence. By letter dated February 15, 2000, respondent’s administrative review officer notified petitioner that, based on his January 24 review, Malcolm was not entitled to attend the district’s schools because of "parental residence out-of-district." The letter stated that Malcolm would be excluded from the district’s schools effective March 7, 2000. I granted petitioner’s request for interim relief on April 4, 2000.

Petitioner asserts that Malcolm is entitled to attend respondent’s schools because she and Malcolm reside in her mother’s home within the district. In support of her claim, petitioner presents nothing more than her bare assertion; she offers no affidavits or documentary evidence of any kind to indicate that she and Malcolm are, in fact, district residents.

Respondent asserts that its determination is rational and supported by the record, and that its actions were not arbitrary, capricious or unreasonable. Accordingly, respondent requests that the petition be dismissed in its entirety.

The review officer’s report is replete with evidence that neither petitioner nor Malcolm are district residents for purposes of qualifying Malcolm for admission into respondent’s schools. Among the facts adduced at the hearing were the following: petitioner had all of her mail forwarded to an address outside the district shortly before this appeal was commenced; neither petitioner nor Malcolm was observed leaving the home of petitioner’s mother according to surveillance conducted by respondent on four random mornings; Malcolm was observed entering the district to attend school during four separate morning surveillances; petitioner admitted that she often stays at her boyfriend’s residence outside the district; and, finally, another son of petitioner’s, who lives with petitioner and Malcolm, attends public school in a neighboring district.

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 D.F., 39 Ed Dept Rep ___, Decision No. 14,187; 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 (Appeal of D.F., supra; Appeal of Dimbo, supra; Appeal of Daniels, supra) and an intent to reside in the district (Appeal of D.F., supra; Appeal of Dimbo, supra; Appeal of Anand, 35 Ed Dept Rep 65, Decision No. 13,466).

Other than her bare statements that she and Malcolm reside at her mother’s home within the district, petitioner offers no evidence in support of her position. In contrast, respondent offers significant evidence that petitioner resides outside the district. As such, I do not find respondent's determination to be arbitrary, capricious or unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of D.F., supra; Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).