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Decision No. 14,788

Appeal of K.M., on behalf of her son K.W., from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 14,788

(August 22, 2002)

Hodgson Russ, LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

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

Petitioner enrolled her son in respondent"s schools in November 2001 and provided an address on Cleveland Drive in Cheektowaga, within respondent"s district. In March 2002, respondent received a request for information about petitioner"s son from the New York State Office of Temporary and Disability Assistance. The request included an authorization to release information signed by petitioner in which she listed her address as Wright Street in Buffalo. Since that address is not located within respondent"s district, respondent commenced an investigation.

An investigator conducted surveillance at the Cleveland Drive address on February 27 and 28 and March 4, 2002. He did not observe petitioner"s son at that address on any of those days. In addition, he conducted surveillance at an address on East Utica Street in Buffalo on March 21 and April 10 and 12, 2002. On each of those days he observed petitioner"s son leave the house with an adult woman who drove him to school in a vehicle registered to petitioner. The investigator also saw petitioner"s son get out of that same vehicle at school on five days during March and April 2002. On March 19, 2002, the investigator observed a vehicle registered to petitioner arrive at the Wright Street address. An adult woman who appeared to be carrying groceries exited the car and entered the residence. No further activity was observed.

By letter dated April 22, 2002, respondent"s superintendent notified petitioner that he had found her son was not a district resident and that she could submit additional information to rebut this conclusion. Petitioner appealed the superintendent"s determination. By letter dated May 16, 2002, the superintendent upheld his original determination but stated that he would permit petitioner"s son to attend school for the remainder of the school year. This appeal ensued. Petitioner"s request for interim relief was rendered moot by the superintendent"s agreement to permit petitioner"s son to remain in school until the end of the school year.

Petitioner alleges that she and her son reside on Cleveland Drive within respondent"s district. She states that a friend who resides at the East Utica Street address cares for her son on Tuesdays, Thursdays and Fridays, when she works until 8:30 p.m. She also states that she drops her son off at East Utica Street by 6:15 a.m. on Thursdays and Fridays so that she can arrive at work by 6:45 a.m. Petitioner attached to the petition a copy of her driver"s license and an insurance policy that expired in October 2001, which both list her address as Cleveland Drive.

Respondent contends that the determination that petitioner"s son is not a district resident is reasonable and should be upheld. Respondent argues that the surveillance reports show that petitioner drove her son to school from the East Utica Street residence and contradict her assertion that she dropped her son off there before going to work. Petitioner did not submit a reply or other response to explain the information in the surveillance reports.

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 B.O. and D.O., 42 Dept Rep ____, Decision No. 14,769; Appeal of L.W., 41 id. ____, 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 has failed to meet that burden here. Her assertion that she and her son reside in respondent"s district is contradicted by the surveillance reports. Petitioner"s contention that she drops her son off with a friend at East Utica Street by 6:15 a.m. on Thursdays and Fridays is also inconsistent with the surveillance reports, which show that petitioner left that address after 8 a.m. on a Thursday and a Friday. Petitioner did not submit a reply and offers no further explanation for the observations made by respondent"s investigator. Nor does she explain why she listed her address as Wright Street on the release she signed. The insurance declaration attached to the petition, which expired in October 2001, is insufficient to support her current claim.

While the surveillance reports cover only a few days" observations, petitioner has offered no proof other than a driver"s license to rebut them. On the record before me, I do not find respondent"s determination, that K.W. is not a district resident, arbitrary or capricious.