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Decision No. 14,721

Appeal of DHAHABU REEVES, on behalf of her daughter KIA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.


Decision No. 14,721

(May 13, 2002)


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


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

In September 2000, petitioner registered Kia for school, listing her address as 487 Keller Avenue, Elmont, within respondent"s district. By letter dated November 26, 2001, the Administrative Assistant to the Superintendent notified petitioner that Kia was not entitled to attend the respondent"s schools because she did not reside in the district. By letter dated December 5, 2001, petitioner requested an appeal of the district"s determination, stating that she was in the process of finding another apartment within the district. A residency hearing was held on January 3, 2002. By letter dated January 4, 2002, the hearing officer denied petitioner"s appeal and informed petitioner that Kia would be excluded from school effective January 25, 2002. The hearing officer issued a full written report on January 17, 2002. This appeal ensued. Petitioner"s request for interim relief was denied on February 12, 2002.

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 Lapidus, 40 id. 21, Decision No. 14,408). 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 presumed to be that of his or her parents or legal guardians (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). In ascertaining an individual's intent as to whether a particular living arrangement is indeed temporary, the Commissioner must consider evidence regarding the individual's continuing ties to the community and efforts to return (Appeal of Dina L., 41 Ed Dept Rep ___, Decision No. 14,594).

At the January 3, 2002 hearing and in the petition, petitioner stated that she became ill living at the Keller Avenue apartment as a result of improper ventilation, and her doctor recommended that she vacate the apartment. Apparently, she remained at that address for only one month, at the time she registered Kia for the 2000-2001 school year. Petitioner subsequently relocated to Fresh Meadows, New York, outside respondent"s district. Petitioner admitted that she and Kia currently reside at the Fresh Meadows address and have resided there for over a year. Petitioner stated that she did not inform the district of her change in address because she wanted her daughter to continue in respondent"s schools. She also stated that she intended to live in Fresh Meadows only temporarily, and that she has been looking for an apartment in Elmont or Valley Stream for over a year.

Petitioner admits that she resides outside respondent"s district, and has resided there for over a year. Petitioner"s bare assertion of an intention to return to the district, absent evidence demonstrating her continuing efforts to secure a residence therein, is insufficient to establish legal residence (Appeal of Dina L., supra; Appeal of Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001). On the record before me, petitioner"s efforts to relocate to an address within respondent"s district appear minimal. The four real estate agencies she allegedly contacted are all located outside the district, as is the apartment she looked at in December (after the district"s notification), and she has offered no other evidence of her attempts to procure an apartment within the district or of any continuing ties to the community.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Lokkeberg, supra). The record before me supports respondent's determination that petitioner is not a district resident.