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Decision No. 15,101

Appeal of WILDA ST. VILLIEN, on behalf of her daughter TAMAR DENACE, from action of the Board of Education of the Valley Stream Central High School District regarding residency.


Appeal of WILDA ST. VILLIEN, on behalf of her son DARREN DESRAMEAUX, from action of the Board of Education of the Valley Stream Central High School District regarding residency.



(August 23, 2004)


Guercio & Guercio, attorneys for respondent, John P. Sheahan, Esq., of counsel


MILLS, Commissioner.--In separate appeals, petitioner challenges the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that her daughter, Tamar, and her son, Darren, are not district residents.  Because the appeals raise similar issues of law and fact, they are consolidated for decision.  The appeals must be dismissed.

Petitioner enrolled Tamar and Darren in respondent"s schools in the fall of 2003.  At that time she indicated that they all resided with petitioner"s cousin in the district. Sometime thereafter, the district"s administration began an investigation of petitioner"s residency, and on March 22, 2004, petitioner attended a residency conference. 

By letter dated March 23, 2004, respondent"s superintendent notified petitioner of his finding that Tamar and Darren were not district residents and that, as of April 2, 2004, they were ineligible to attend school in the district.  On May 12, 2004 petitioner"s requests for interim relief were granted.

Petitioner contends that she and her children live in the district.  Respondent contends that the petitions are untimely. Respondent further contends that petitioner and her children reside in Queens.

The appeals must be dismissed as untimely.  An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The superintendent"s March 23, 2004 letter notified petitioner that her children would be excluded from respondent"s schools, yet petitioner did not commence the appeals until April 27, 2004.  Petitioner has not offered any reason for the delay.  Consequently, the appeals must be dismissed as untimely (Appeal of Eveillard, 42 Ed Dept Rep 78, Decision No. 14,782; Appeal of Perez, 42 id. 71, Decision No. 14,779).

Even if the appeals were not dismissed as untimely, they would be dismissed on the merits.  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 Holder, 44 Ed Dept Rep ___, Decision No. 15,088; Appeal of General, 43 id. ___, Decision No. 14,948; Appeal of Burnett, 42 id. 208, Decision No. 14,825).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence and an intent to reside in the district (Longwood Central School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Holder, supra; Appeal of General, supra).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Short, 43 Ed Dept Rep ___, Decision No. 14,945; Appeal of Washington, 42 id. 197, Decision No. 14,820).

A residency determination will not be overturned unless it is arbitrary and capricious (Appeal of Holder, supra; Appeal of General, supra).  In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of General, supra; Appeal of Short, supra).

In his March 23, 2004 letter, respondent"s superintendent indicated that the determination was based on district surveillance and a number of documents that listed petitioner"s address in Queens, including, a real estate record, Department of Motor Vehicle records and telephone book listing.

Petitioner admits that she used to live in Queens but claims that she and her children moved in with petitioner"s cousin in respondent"s district in July 2002.  She contends that her estranged husband continues to reside in the home she owns in Queens.  The only documentary evidence that petitioner submits in support of her claim of residency is her driver"s permit and an expired automobile insurance card listing her cousin"s address. 

In contrast, respondent has submitted evidence that suggests that petitioner does not reside in the district.  Between November 2003 and February 2004, respondent"s investigator conducted surveillance on six occasions, during the early morning hours before school, at the alleged in-district residence. Neither petitioner nor Tamar was observed leaving the in-district residence, and yet Tamar was in school on time on those days.  Petitioner"s only explanation for the observations made by respondent"s investigator is that he made a mistake or was confused.  Petitioner fails to submit any evidence from her cousin supporting her claim that she and her children reside with her.

Petitioner"s evidence is insufficient to support her claim of residency and therefore I find that petitioner has failed to meet her burden of proof (See Appeal of K.M., 42 Ed Dept Rep 104, Decision No. 14,788).  Accordingly, based on the record before me, I do not find that respondent"s determination was arbitrary or capricious.

While the appeals must be dismissed, I note that petitioner has the right to reapply to the district for admission of her children at any time should circumstances change (Appeal of Holder, supra; Appeal of Normandin, 43 Ed Dept Rep ___, Decision No. 14,950; Appeal of a Student with a Disability, 43 id. ___, Decision No. 14,926).