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Decision No. 15,100

Appeal of TANIA SMITH, on behalf of her daughters, JAMIA and TAYLA, from action of the Board of Education of the Uniondale Union Free School District regarding residency.



(August 23, 2004)


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


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her daughters, Jamia and Tayla, are not district residents.  The appeal must be sustained.

Petitioner, her husband, children and parents lived together on Leslie Lane, within respondent"s district.  In 2003, petitioner and her husband separated, and he moved to Orchard Street in Hempstead, outside the district.  In March 2004, respondent began to suspect the children did not reside in the district when Tayla told a teacher that she lived on Orchard Street in Hempstead.  Based on this information, respondent began a residency investigation.

Respondent"s investigation revealed that petitioner and her husband both have mail delivered to the Orchard Street address.  Respondent"s investigator conducted surveillance on four occasions during a two-week period between March 30 and April 13, 2004. Another surveillance was conducted on June 25, 2004, after the commencement of this appeal.

By letter dated April 16, 2004, respondent"s Administrative Assistant for Central Registration notified petitioner that her children were no longer eligible to attend respondent"s schools because she did not reside within the district and would be excluded as of April 30, 2004.  A registration review conference was held on May 5, 2004, at which petitioner was allowed to present evidence of residency.  By letter dated May 18, 2004, the Administrative Assistant notified petitioner of his conclusion that she and her children were not residents of the district.  This appeal ensued.  Petitioner"s request for interim relief was denied on July 7, 2004.

Petitioner claims that she and her children are district residents.  To support her claim, petitioner submits a driver"s license (issued in 1999 and renewed in May 2004), a payroll statement for February 2004, a 2003 W-2 form, and a 2003 tax return.  She claims her children spend two to three nights a week with their father, and live with her the rest of the time at Leslie Lane.

Respondent alleges that its surveillance proves that petitioner lives at Orchard Street with her husband.  It also maintains that, because the post office delivers mail to petitioner at the Orchard Street address, she does not reside at Leslie Lane.  Additionally, respondent contends that because petitioner claimed only one child as a dependent on her income taxes for 2003, the other child must be living at Orchard Street.  Finally, respondent notes that, while petitioner alleges she is separated from her husband, she has not produced a separation agreement.

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 Jones, 42 Ed Dept Rep 129, Decision No. 14,797; Appeal of L.W., 41 id. 372, Decision No. 14,717; Appeal of Pierre, 40 id. 538, Decision No. 14,551).  Residence for purposes of "3202 is established by one"s physical presence as an inhabitant within the district combined with an intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171).  A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of James, 41 Ed Dept Rep 487, Decision No. 14,752; Appeal of Santana, 40 id. 57, Decision No. 14,420; Appeal of Lavelanet, supra).  Where a child's parents live apart, the child can have only one legal residence (Appeal of Lavelanet, supra; Appeal of Plesko, 37 Ed Dept Rep 238, Decision No. 13,850).

Respondent"s investigator conducted surveillance at Orchard Street on four days between March 30 and April 13, 2004.  During the first surveillance he saw "a woman" leave the Orchard Street residence at 8:10 a.m., get into a car registered to petitioner and drive away.  The second surveillance commenced at 7:50 a.m. on March 31, 2004.  The investigator observed a woman drive two children to school at 8:11 a.m. in a car registered to petitioner.  The investigator was then informed by teachers at the school that the two girls were Jamia and Tayla.  The third observation began at 6:58 a.m. on April 2, 2004 and revealed a man driving petitioner"s children to school in a car registered to petitioner.  The fourth surveillance occurred on April 13, 2004 at 7:54 a.m.  Once again the investigator observed a man driving the children to school in a car registered to petitioner.

These actions are not inconsistent with petitioner"s explanation that the children spend two to three nights per week with their father.  Petitioner also admits she has spent some nights at Orchard Street due to reconciliation attempts with her husband.  On no occasion did the investigator observe the Leslie Lane address, the address at which petitioner maintains she has continuously resided.

The lack of a legal separation agreement is not conclusive evidence that petitioner lives with her husband.  Neither is the tax return showing petitioner claimed only one of her children as a dependant for 2003.  In fact, that return lists petitioner"s address as Leslie Lane.  Finally, respondent"s allegation -- that the post office delivers mail with petitioner"s name on it to Orchard Street -- is not determinative.  Moreover, this allegation is contradicted by petitioner"s driver"s license, earnings statement, W-2 and tax return.

In sum, I do not find respondent"s surveillance evidence persuasive proof that petitioner has taken up residence at Orchard Street.  I further find that respondent"s other evidence is inconclusive.  Accordingly, I am constrained to find, on the record before me, that respondent"s determination, that petitioner"s children are not district residents, is based on insufficient evidence and is arbitrary and capricious.