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Decision No. 14,770

Appeal of MIREILLE DEETJEN, on behalf of her daughter ALEXANDRIA PRINCIVIL, from action of the Board of Education of the Sachem Central School District regarding residency.

Decision No. 14,770

(August 12, 2002)

Ingerman Smith, L.L.P., attorneys for respondent, Deborah Richardson DeCuevas, Esq., of counsel

Cate, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sachem Central School District ("respondent") that her daughter Alexandria is not a district resident. The appeal must be dismissed.

During November 2001, respondent began to investigate Alexandria"s residence. Respondent"s attendance officer alleges that she made several telephone requests to petitioner for proof of her daughter"s residence within the district. Petitioner supplied no evidence. By letter dated January 10, 2002, the attendance officer advised petitioner that Alexandria would be dropped from the district"s attendance rolls unless petitioner supplied proof of residence by January 18, 2002. A copy of the letter mailed to petitioner at an address on Hyacinth Lane in Holbrook apparently was returned to respondent as undeliverable. Respondent also gave a copy to Alexandria for hand-delivery to petitioner.

On or about January 18, 2002, Alexandria's" father, Franz Princivil, submitted an affidavit stating that he lives within respondent"s district at the Hyacinth Lane address. Respondent"s attendance officer visited the Hyacinth Lane residence on January 22, 2002. The landlord and her sister indicated that Mr. Princivil did not live there but had inquired about renting an upstairs apartment. A school security officer monitored the residence for one week and reported that there was no evidence that Mr. Princivil lived there. On January 31, 2002, the attendance officer made a second visit to the Hyacinth Lane residence. Mr. Princivil met her there but would not give her a tour or let her observe sleeping arrangements. A person who identified himself as the landlord"s son told the attendance officer that Mr. Princivil was not a tenant and that he did not know Alexandria.

By letter dated February 1, 2002, the attendance officer advised petitioner of her determination that Alexandria was not a district resident and stated that Alexandria would not be permitted to attend respondent"s schools as of February 15, 2002. This appeal ensued. Petitioner"s request for interim relief was granted on March 26, 2002.

Petitioner asserts that she lives in Central Islip and that Alexandria lives with her father at the Hyacinth Lane address within respondent"s district. She relies upon an affidavit from Mr. Princivil stating that he lives at that address, an affidavit from the landlord stating that Mr. Princivil lives at that address and a utility bill directed to the landlord. Respondent contends that Alexandria does not live within the district, that its determination was neither arbitrary nor capricious and that petitioner has failed to meet her burden of proof.

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 Pierre, 40 id. 538, Decision No. 14,551).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Brown, 42 Ed Dept Rep ___, Decision No. 14,760). Petitioner"s conclusory statement that Alexandria resides with Mr. Princivil at Hyacinth Lane, within the district, is not sufficient to meet that burden. Mr. Princivil"s affidavit stating that he resides at that address is contradicted by the affidavit of the attendance officer who made two visits there and spoke with the landlord"s family. There is no evidence that Alexandria resides with her father. On the record before me, I cannot find that respondent"s determination that Alexandria is not a district resident was arbitrary or capricious.