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Decision No. 15,093

Appeal of I.B. on behalf of her children, S.R., E.B. and C.B., from action of the Bayport-Bluepoint Union Free School District regarding residency.


Decision No. 15,093


(July 30, 2004)


Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bayport-Bluepoint Union Free School District ("respondent") that her children are not district residents.  The appeal must be dismissed.

Petitioner"s children have attended respondent"s schools since August 2000.  In November 2003, petitioner advised the Sylvan Avenue elementary school principal that she was going to be evicted from her apartment and wanted to use a post office box as her new address.  The principal told petitioner that a post office box was not acceptable.  In December, petitioner told the principal"s secretary that she was still living at the apartment, but wanted to use a post office box number for her address.

In January 2004, the principal"s secretary contacted the apartment complex and was told that petitioner had moved out in November 2003.  The secretary then contacted petitioner, who informed her that she was living at a Stephen Court address in Bayport.  However, the secretary knew petitioner did not reside there because a friend of hers lived at that address.  The principal met with petitioner who admitted that she did not reside at the Stephen Court address, but refused to tell the principal where she lived.

By letter dated January 14, 2004, respondent"s attendance officer requested that petitioner provide him with documentation supporting residency by January 22, 2004.  On February 5, 2004, petitioner submitted a new registration form to the district indicating she and her children were residing at a different Stephen Court address with a friend.  The friend provided an affidavit stating petitioner and her children resided with her.

Thereafter, the district"s investigator visited the alleged Stephen Court residence on three occasions.  On February 14, 2004, the owner told him that petitioner was not home.  On February 16, the owner told the investigator that petitioner and her children did not stay there every night, and that their belongings were not there.  On March 14, 2004, the owner told the investigator that petitioner and her children had not stayed there for the past month.  Based on this investigation, the attendance officer again contacted petitioner who still maintained that she resided at the Stephen Court address.

By letter dated March 17, 2004, the attendance officer notified petitioner that absent proof of residency her children would be excluded from school after March 26, 2004.  According to respondent, when petitioner picked up her son at the middle school on March 26, 2004, she told the principal that she tried to enroll her children in the South County School District, because she lived in East Patchogue.

This appeal ensued.  Petitioner"s request for interim relief was granted on April 8, 2004.

Petitioner claims that she and her children reside at  Stephen Court in respondent"s school district.  Respondent requests that I reject petitioner"s reply because it is untimely, raises new issues, and is not properly verified.  As to the merits, respondent contends that its determination was not arbitrary or capricious.

I will first address respondent"s procedural contentions reqarding the reply.  A reply "shall be served within 10 days after service of the answer to which it responds".  If the answer has been served by mail", the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period." (8 NYCRR "275.14[a])  Respondent served its answer on April 20, 2004, and petitioner"s reply was served on June 3, 2004, well beyond the allowable time frame.  Accordingly, petitioner"s reply is untimely and I will not consider it.

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 McSween, 42 Ed Dept Rep 59, Decision No. 14,775; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603).

A student"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Donohue, 41 Ed Dept Rep 26, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177).  Residence is established by one"s physical presence as an inhabitant within the district combined with an intent to remain (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of B.O. and D.O., 42 Ed Dept Rep 42, Decision No. 14,769; Appeal of Metze, 42 id. 40, Decision No. 14,768).  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 17, Decision No. 14,760).  A residency determination will not be set aside unless it is arbitrary, capricious or unreasonable (Appeal of Gurka, 43 Ed Dept Rep ___, Decision No. 15,072; Appeal of Brown, supra).

Petitioner states she and her children reside at a Stephen Court address with a friend and provides an affidavit from her friend to that effect.  However, the friend"s affidavit was executed prior to the district"s residency investigation.  That investigation revealed petitioner and her children were not living at the friend"s residence, and petitioner was unable to produce any other evidence of residence in the district.

I find that petitioner has failed to provide sufficient evidence or explanation to refute respondent's findings.  Thus, on the evidence before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that petitioner and her children are not  district residents.  Accordingly, respondent's determination will not be set aside.

While the appeal must be dismissed, petitioner retains the right to reapply to the district for admission on her children"s behalf at any time and to present new information for respondent"s consideration (Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779; Appeal of Santoianni, 40 id. 237, Decision No. 14,470).