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Decision No. 14,635

Appeal of SADIE McCARGO, on behalf of KAMEL McCARGO, from action of the Board of Education of the Baldwin Union Free School District regarding residency.


Decision No. 14,635


(August 27, 2001)


Ingerman Smith LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her grandson, Kamel, is not a resident of the district. The appeal must be dismissed.

Petitioner lives at 67 Grand Avenue in the Freeport Union Free School District. She is Kamel"s guardian and exercises custody and control over him. During the 2000-2001 school year, petitioner indicated to respondent that her grandson lived with his aunt " petitioner"s daughter " at 1068 Ardmore Road, within respondent"s school district, and Kamel attended school in the district.

By letter dated May 8, 2001, respondent"s director of pupil services notified petitioner that her and Kamel"s residency was under investigation and, unless she provided proof of residency by May 17, 2001, Kamel would be excluded from the district as a non-resident. Petitioner failed to respond to the May 8 letter. Thereafter, respondent"s residency investigator telephoned petitioner. Petitioner"s son-in-law answered the telephone and indicated that petitioner and Kamel lived at 67 Grand Street in the Freeport Union Free School District. By letter dated May 18, 2001, respondent"s assistant director of pupil services notified petitioner, inviting her to another meeting on May 25, 2001 to discuss the residency issue and provide documentation of her residency. The letter stated that, absent documentation that she resided in respondent"s school district, Kamel would be excluded from attendance as a non-resident effective May 25, 2001. Respondent received no response to that letter, and Kamel was excluded from school on May 25, 2001.

Petitioner initiated this appeal on May 29, 2001. On June 6, 2001, I issued an interim order directing respondent to admit petitioner"s grandson to its schools pending a determination on the merits of the appeal.


Petitioner asserts in her petition that she is Kamel"s legal guardian, that she provides his food and clothing and that she exercises custody and control over Kamel. Petitioner claims, however, that for the past eight years Kamel has lived with his aunt and uncle " petitioner"s daughter and son-in-law " at 1068 Ardmore Road in respondent"s district. She further claims that Kamel, her daughter and family temporarily are residing with her at 67 Grand Avenue in the Freeport school district. She contends that, due to the temporary nature of her daughter"s living arrangement, her daughter"s family and Kamel remain residents of respondent"s school district and Kamel, therefore, is entitled to attend respondent"s schools.

Respondent claims that, because petitioner is Kamel"s guardian and she has not relinquished custody and control to anyone else, Kamel"s residency is that of petitioner in the Freeport school district. Moreover, respondent claims that petitioner"s daughter is also not a resident of respondent"s district, having moved from 1068 Ardmore Road to 67 Grand Avenue. Respondent asserts that its determination that Kamel is not a resident of its district is rational based on the record.

Upon review of the entire record, the appeal must be dismissed. 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 Thomas, 41 Ed Dept Rep ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603; Appeal of Davis, 39 id. 181, Decision No. 14,207). For purposes of Education Law "3202(1), residence is based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Gentile, 39 id., 23, Decision No. 14,161). A student's residence is deemed to be that of his or her parents or guardian (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177). This presumption may be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Donohue, supra; Appeal of Weaver, supra; Appeal of Mendoza, 39 Ed Dept Rep 74, Decision No. 14,178).

Petitioner does not claim that she has transferred custody and control of Kamel to his aunt and uncle. To the contrary, in her petition she asserts that she is Kamel"s guardian and continues to provide his food and clothing and exercise custody and control over him. Inasmuch as there is no dispute as to petitioner"s residency at 67 Grand Avenue in the Freeport school district, I find Kamel"s residence also to be that of petitioner at 67 Grand Avenue. Moreover, even were Kamel"s residence determined to be that of his aunt and uncle, in Appeal of Oliver, supra, their residence was also determined to be at 67 Grand Avenue in the Freeport school district.

The record before me provides no basis to find respondent acted arbitrarily in finding that petitioner and her grandson are not district residents.