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Decision No. 14,594

Appeal of DINA L., on behalf of LINDSAY, MICHAEL and ALIANA L., from action of the Board of Education of the Cold Spring Harbor Central School District regarding residency.

Decision No. 14,594

(July 9, 2001)

Saasto & Hirsch, attorneys for petitioner, Robert Alan Saasto, Esq., of counsel

Erlich, Frazer & Feldman, attorneys for respondent, Jerome H. Erlich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cold Spring Harbor Central School District ("respondent") that her children, Lindsay, Michael and Aliana, are not district residents. The appeal must be dismissed.

Petitioner and her children resided in respondent"s district from 1985 until June 2000, when she admits that they moved in with petitioner's parents in Merrick, New York, outside the district. Petitioner continued to send the children to the district's schools. After receiving several anonymous letters in the fall of 2000 stating that petitioner was not a district resident, the district instituted an investigation. The investigation revealed that petitioner's driver's license and voter registration, both dating to 1999, listed the Merrick address, and petitioner had voted in Merrick for the 2000 presidential election. In addition, surveillance of the Merrick address conducted by the district on thirteen occasions between November 30, 2000 and January 4, 2001 showed petitioner leaving that address and driving the children to school in respondent"s district.

By letter dated December 20, 2000, Superintendent Frederick Volp notified petitioner that her children would be excluded from the district's schools as of January 26, 2001. A hearing was held on January 19, 2001, at which five witnesses and approximately 40 pieces of evidence were presented. By decision dated January 22, 2001, a hearing officer designated by respondent determined that petitioner was not a district resident. This appeal ensued. On February 6, 2001, petitioner's request for an interim order was granted.

Petitioner argues that she has maintained ties with respondent"s district and always intended to live there even though she temporarily relocated to Merrick. Respondent asserts that petitioner fails to state a claim upon which relief may be granted, because she admits that she has been living outside the district since June 2000, and that its hearing officer's decision was correct in all respects.

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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Residence 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 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). To determine one's intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family's continuing ties to the community and their efforts to return (Appeal of Schwartzburt, 37 Ed Dept Rep 139, Decision No. 13,825).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001). The record before me supports respondent's determination that petitioner is not a district resident. At the time the petition was filed, petitioner was apparently separated from her husband, who was in prison. Petitioner admitted that she was living in Merrick, but asserted that she and the children were residing there on a temporary basis because Nassau County Family Court had issued an order of protection against her husband. Petitioner stated that she has maintained ties within respondent"s district and intends to return there as soon as she can find a rental unit, but has admittedly failed to make any effort to find housing for herself and her children within the district despite apparently possessing the financial means to do so. She claims that her attorney advised her to defer obtaining a rental unit in the district until her husband's anticipated release from prison in March 2001 to see if he would provide living arrangements for the family upon his release.

Petitioner has not filed a reply, memorandum of law or any other documentation regarding her husband's expected release from prison or demonstrating that she has returned or even tried to return to the district. The only ties to the district that petitioner can demonstrate, aside from her children's continued attendance at school, are one child's extracurricular dance lessons and a younger child's nursery school. These do not constitute significant ties to the community. Although I am sympathetic to petitioner's situation during this period of family difficulty, the bare assertion of an intention to return to the district, absent any showing that continuing efforts are being made to secure a residence, does not alone establish legal residence (Appeal of Lokkeberg, supra).

I have considered petitioner's remaining contentions and find them without merit.