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Decision No. 14,625

Appeal of CATHLEEN ELEANOR BELL, on behalf of her children IAN, MEGAN and CHRISTOPHER BELL, from action of the Board of Education of the Smithtown Central School District regarding residency.

Decision No. 14,625

(August 22, 2001)

Peter G. Albert, Esq., attorney for respondent

CATE, Acting Commissioner.--Petitioner appeals a determination by the Board of Education of the Smithtown Central School District ("respondent") that her children are not district residents and may not attend its schools tuition-free. The appeal must be dismissed.

Petitioner lived on Blackman Street in Smithtown until March 2000, when circumstances forced her to leave that address. Petitioner states that she and her children subsequently lived with various friends within respondent's district while she attempted to find permanent housing. Despite her attempts, as of December 2000 she had not secured permanent housing within the district.

Petitioner's children attended respondent's schools during the 1999-2000 school year. In March 2000, respondent's attendance supervisor, Susan Goldstein, received information that petitioner and her children were living outside respondent's district. The district requested verification of current residency within the district, but received no response. Respondent asserts that, in mid-April 2000, the district ascertained that one child was living with another family within the district, but the other children were living with their father outside the district.

On May 16, 2000, Ms. Goldstein sent a letter to petitioner, advising that the district had information that petitioner and her children were no longer living in the district. The letter further stated that the children would be permitted to remain in district schools for the remainder of the 1999-2000 school year, but would be dropped from its rolls as of June 22, 2000. Additionally, the letter advised that, if petitioner became a district resident, she had to provide documentary evidence of such residency in order to re-register her children.

In response to the letter, petitioner contacted Ms. Goldstein, stating that she and her children had recently moved in with a relative who lived within the boundaries of the district, but she provided no evidence supporting this assertion. In August 2000, petitioner advised Ms. Goldstein that she was leasing an apartment within the district, and provided a copy of the lease agreement to Ms. Goldstein on September 5, 2000. Petitioner's children were accordingly registered in the district's schools for the 2000-2001 school year.

The lease arrangement was not completed, however, through no apparent fault of petitioner, and in October 2000, petitioner met with district officials to discuss her residency. Respondent contends that petitioner admitted that she was not a district resident, but asked to have her children remain in respondent's schools. Petitioner asserts, to the contrary, that she and her children were living with friends within respondent's district and were thus still residents.

By letter dated November 14, 2000, Ms. Goldstein advised petitioner that she had to submit proof of residency by December 1, 2000, or her children would not be permitted to continue in attendance at the district's schools. This appeal ensued. Respondent agreed to allow petitioner's children to remain in its schools pending resolution of this appeal.

Petitioner contends that she has been living with her children on a temporary basis with several friends within respondent's district while she seeks permanent housing, and she continued to be a district resident. She seeks an order permitting her children to remain in respondent's schools. Respondent denies that petitioner is a resident, based on statements made by petitioner and her children and visual observations by Ms. Goldstein. Respondent also claims that the petition should be dismissed because petitioner failed to exhaust her administrative remedies by submitting documentation of her residency or her attempts to establish residency, despite the district's repeated requests.

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 Dimbo, 38 id. 233, Decision No. 14,023). 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 Silvestro, 40 Ed Dept Rep ___, Decision No. 14,476; Appeal of Smith, 39 id. 28, Decision No. 14,163; Appeal of Dimbo, supra).

Other than her bare statements that she and her children have been living with friends within respondent's district, petitioner offers no evidence in support of her position. She does not identify these friends or their addresses or the dates that she and her children lived at each address, nor does petitioner present affidavits by the friends attesting to her living arrangement or any other documentary evidence to support her claim that she is still residing in the district. In contrast, respondent offers significant evidence of petitioner's residence outside the district, based upon statements made by petitioner and her children about living at addresses outside the district and visual observations by Ms. Goldstein. Petitioner does not contest respondent's assertions, or provide any explanation for Ms. Goldstein's observations. If petitioner was temporarily living outside respondent's district with the intent to return, she offered no proof of such intention, such as evidence of an active search for a residence within the district, continuing ties to the district, or a lease or other agreement establishing a new residence within the district (Appeal of Oliver, 41 Ed Dept Rep ___, Decision No. 14,603; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

Despite respondent's invitation to submit further proof, in compliance with 8 NYCRR "100.2(y), petitioner failed to submit any evidence to support her claim that she still lived within the district. I disagree with respondent's assertion that failure to submit such documentary proof amounts to a failure to exhaust administrative remedies. Rather, failure to submit proof constitutes a failure to establish residency in accordance with the administrative procedures in "100.2(y).

I, therefore, find respondent's determination that petitioner and her children are not district residents to be neither arbitrary, capricious nor unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of Smith, supra; Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Digilio, 37 id. 25, Decision No. 13,795).

Although the petition must be dismissed upon the record before me, I note that petitioner has the right to reapply to the district for admission on her children's behalf should the circumstances described in this appeal change (Appeal of Smith, supra).