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Decision No. 14,946

Appeal of B.C., on behalf of her son A.C., from action of the Board of Education of the Merrick Union Free School District regarding residency.



(August 29, 2003)


Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir and David M. Cohen, Esqs., of counsel


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

A.C. has attended respondent's Lakeside Elementary School since 1997.  On October 2, 2002, A.C. participated in a group discussion organized and led by a school social worker for students who have experienced divorce or separation in their families.   According to the social worker, A.C. stated at that session that he and his mother moved to Woodmere to live with his mother's boyfriend.  The social worker also states that A.C. indicated at subsequent sessions that he did not live in the district.  The social worker reported this information to respondent's assistant superintendent for administration and pupil personnel services ("assistant superintendent").  As a result of the social worker's report, the assistant superintendent commenced a residency investigation. 

By letter dated November 27, 2002, the assistant superintendent advised petitioner that the district had evidence indicating that A.C. lived between two homes, both outside of the district.  The assistant superintendent asked petitioner to provide documentation proving that A.C. is a district resident.  He advised that if she did not provide that documentation, A.C. would be excluded from respondent's schools on December 20, 2002. 

Petitioner spoke by telephone with the assistant superintendent and provided him with documentation supporting her claim of residency.  By letter dated December 13, 2002, the assistant superintendent advised petitioner "the stance of the district remains with a final date of attendance for [A.C.] being December 20, 2002."  This appeal ensued.  Petitioner"s request for interim relief was granted on December 31, 2002.

Petitioner contends that she is A.C.'s sole custodial parent and that both she and her son reside in her sister's house in Merrick within respondent's district.  Respondent contends that A.C. resides at two locations, both outside the respondent's district, one in Woodbury, the home of petitioner's former husband who is A.C.'s father, and the other in Woodmere, the home of petitioner's boyfriend. 

I must first address a procedural matter.  Respondent contends that the reply should not be considered because it was not originally verified. Section 275.5 of the Commissioner"s regulations requires that all pleadings be verified.  Although the verification was initially not provided with the reply, a properly verified reply was promptly filed when petitioner was advised of the defect.  Respondent does not plead any prejudice resulting from this late submission of a properly verified reply, nor do I find any such prejudice.  The Commissioner has previously accepted a pleading that was promptly resubmitted with a proper verification where there has been no evidence of prejudice to the opposing party (Appeal of V.B., 41 Ed Dept Rep 451, Decision No. 14,743; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611; Appeal of Christe, 40 id. 412, Decision No. 14,514). Accordingly, I will accept petitioner's reply.

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 Ed Dept Rep ___, Decision No. 14,769; Appeal of Metze, 42 id. ___, Decision No. 14,768; Appeal of M.S., 42 id. ___, Decision No. 14,767). 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 B.O. and D.O., supra; Appeal of Metze, supra; Appeal of M.S., supra). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Metze, supra).

     Petitioner states that ten-year-old A.C. has lived in the district his entire life and has attended district schools since 1997.  In October 2000, petitioner sold her house in the district and moved in with her sister, who also lives in Merrick.  Petitioner states that she and A.C. have lived with her sister since that time.  Petitioner states that she has sole custody of A.C., and her former husband, who lives in Woodbury, has visitation rights every other weekend.

Respondent"s determination that petitioner's son is not a district resident is based, in large part, on the results of its surveillance.  Respondent contends that A.C. resides either in Woodbury with petitioner's former husband or in Woodmere with petitioner and her boyfriend. 

     The investigator observed the Woodbury home of petitioner's former husband on one morning.  He did not see A.C. leave for school.  On one afternoon, the investigator observed petitioner's former husband pick up petitioner's son at school and bring him home to Woodbury.  There was no further surveillance of the Woodbury address.

Respondent's investigator observed the Woodmere address of petitioner's boyfriend on six mornings.  Petitioner and A.C. were seen leaving from that address on three of the six mornings.  On a fourth morning, petitioner was seen leaving that address alone.  Petitioner states that she was on vacation and spent time with her boyfriend on the three mornings that A.C. was seen there.

Respondent's investigator observed the claimed district residence in Merrick on two mornings, December 12 and 13.  On both mornings the investigator reported that he did not see A.C. leave for school, although A.C. reported to school.  Petitioner states that this evidence is inconclusive and that if the investigator had conducted surveillance at that address on more than two mornings, he would have seen A.C. regularly leaving for school from that address.

Upon review, I find the surveillance evidence to be inconclusive and unpersuasive.  Petitioner and A.C. were under surveillance for a 46-day period, from October 29 to December 13, 2002.  During that period, respondent's investigator observed the claimed district residence on only two mornings.  Further, the limited surveillance of the Woodbury home of petitioner's former husband does not establish that A.C. resides there.  On the one morning that surveillance was conducted, A.C. was not seen.   A.C. was observed leaving the Woodmere home of petitioner's boyfriend on only three mornings, but on three other mornings he was not seen leaving that address.  Petitioner has adequately explained the reason for A.C.'s presence in Woodmere on the three mornings he was observed there. 

Respondent also bases its determination on the affidavit of a school social worker that during a group discussion, A.C. indicated that he and his mother moved to Woodmere to live with his mother's boyfriend.  According to petitioner, the social worker misunderstood A.C. Petitioner states that during group discussion with his friends, A.C. said that he visited his mother's boyfriend in Woodmere.  It is certainly plausible that the social worker misunderstood what A.C. said in the group discussion.  Accordingly, I do not find the social worker's affidavit to be determinative.

In support of petitioner's claim of residency in the district, petitioner submits an affidavit from her sister stating that petitioner and A.C. have been residing with her in the district since October 2000.  Petitioner also submits an automobile lease statement, a wireless telephone bill, and two bank statements, all addressed to petitioner at the Merrick address. 

On the record before me, I find that respondent"s determination that A.C. is not a district resident is based upon insufficient evidence and is therefore arbitrary and capricious.




IT IS ORDERED that respondent permit A.C. to attend school in the Merrick Union Free School District without the payment of tuition.