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Decision No. 14,768

Appeal of CAROLYN METZE, on behalf of RASHAN WHETHERS, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 14,768

(August 2, 2002)

Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

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

Petitioner is the aunt and legal guardian of Rashan, who has attended respondent"s school since 1997. In February 2001, respondent received an anonymous tip that Rashan actually resided in the Roosevelt Union Free School District and was dropped off and picked up at a residence on Independence Avenue in Freeport. The district commenced a residency inquiry and by letter dated March 28, 2001, respondent"s Central Registry Verification Office advised petitioner that it had determined that she and Rashan were not district residents. After petitioner provided some additional unspecified documentation, the district continued to allow Rashan to attend school.

In September 2001, respondent initiated another residency investigation. Surveillance was conducted on four occasions in September and October. The surveillance revealed that each morning Rashan was driven from an address on Hudson Avenue in Roosevelt to the Independence Avenue address. Rashan then entered the residence on Independence Avenue, emerged from the residence, and proceeded to the bus stop. Based on this surveillance, petitioner was notified by letter dated October 11, 2001 that respondent had determined that she and Rashan were not district residents. An administrative review of the residency determination was held on November 8, 2001.

The hearing officer found that petitioner and Rashan were not district residents and respondent"s superintendent adopted that determination. By letter dated November 11, 2001, the superintendent notified petitioner that Rashan was not entitled to attend respondent"s schools. This appeal ensued. Petitioner"s request for an interim order was granted on January 3, 2002.

Petitioner contends that she and Rashan live at an address on Independence Avenue, Freeport, within the district. She claims that her boyfriend lives at an address on Hudson Avenue, Roosevelt, where she and Rashan often stay overnight.

Respondent contends that petitioner"s handwritten appeal fails to comply with the form requirements of "275.3(c) of the Commissioner"s Regulations. Respondent also maintains that the evidence proves that petitioner and Rashan reside in Roosevelt, outside respondent"s district.

I will first address the procedural issue raised by respondent. A petition to the Commissioner is required to be typewritten and double spaced (8 NYCRR "275.3[c]). Although portions of the petition are handwritten, the writing is legible and respondent was able to answer the petition. A liberal interpretation of the rules is appropriate where the petitioner is prose and there is no prejudice to respondent (Appeal of Smith, 40 Ed Dept Rep 172, Decision No. 14,452). Accordingly, I will not dismiss the petition on this basis.

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 L.W., 41 Ed Dept Rep ___, Decision No. 14,717; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377). 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 Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Smith, 39 id. 67, Decision No. 14,175; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Silvestro, supra; Appeal of Monahan, 39 Ed Dept Rep 188, Decision No. 14,209; Appeal of Ifill, 38 id. 97, Decision No. 13,992).

Other than her assertion that she resides at Independence Avenue, petitioner has presented no documentation to support her residency claim. There is no evidence in the record that petitioner has an ownership, leasehold or other interest in the Independence Avenue address and she has offered no explanation of her purported living arrangement there. Respondent"s investigation revealed that a car is registered to petitioner at the Independence Avenue address. However, this fact in isolation is inconclusive.

Surveillance conducted on four separate occasions in September and October 2001 showed petitioner driving from an address in Roosevelt to the Independence Avenue address where Rashan boarded the school bus. Although petitioner maintains that she spends some nights at her boyfriend"s house in Roosevelt, this explanation is inadequate in the absence of any other proof.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of S.H., 40 Ed Dept Rep 661, Decision No. 14,578; Appeal of Camille S., 39 id. 574, Decision No. 14,316; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164). Although respondent"s evidence is not overwhelming, petitioner offers no documentary proof of residency nor does she adequately rebut respondent"s contentions. Accordingly, on the totality of the record before me, I cannot conclude that respondent"s decision was arbitrary or capricious.

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for Rashan"s admission at any time, and upon sufficient proof of the child"s residency within the district, the child would be entitled to attend the district"s schools on a tuition-free basis (Appeal of Smith, 41 Ed Dept Rep 126, Decision No. 14,438).