Appeal of Kesha Greene, on behalf of her children RAQUAN GREENE, YAMINAH GREENE, and KEYHANNE JACKSON, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,250

(July 15, 2005)

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

 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her children, Raquan, Yaminah and Keyhanne, are not district residents. The appeal must be dismissed.

Petitioner's children attended respondent's schools during the 2004-2005 school year. At the time petitioner registered her children, she indicated that they all resided on Beverly Road, Hempstead, in respondent's district. In early Fall 2004, the district received a tip through its "hotline" that petitioner resided at an address on Eddy Road, Roosevelt, within the Roosevelt Union Free School District ("Roosevelt"). Thereafter, respondent began an investigation of petitioner's residency.

By letter dated October 7, 2004, respondent's Superintendent and its Administrative Assistant for Central Registration ("Administrative Assistant") jointly notified petitioner of their determination that she was not a district resident and that, as of October 21, 2004, her children were ineligible to attend the district's schools. The letter further notified petitioner of her right to present evidence regarding her residency and to appeal the determination to the Commissioner of Education. On October 21, 2004, petitioner attended a residency conference. By letter dated November 2, 2004, respondent's Administrative Assistant notified petitioner of his finding that her children were not district residents and that, as of November 9, 2004, they were ineligible to attend the district's schools. This appeal ensued. On December 17, 2004, petitioner's request for interim relief was granted.

Petitioner contends that she and her three children live on Beverly Road in the district. She explains that her father lives at the Eddy Road address, in Roosevelt, and that she and her father co-own a van, which is the reason the Eddy Road address appears on certain financing documents. She also explains that her fianc�, Keyhanne's father, lives at the Eddy Road address, that Keyhanne stays with him Monday through Wednesday, that she stays there some nights, and that she takes him to work and picks him up on occasion.

Respondent contends that because a portion of the petition is unverified, it should be rejected either in part or in its entirety. Respondent further contends that petitioner and her children reside in Roosevelt.

The petition consists of a typewritten portion, followed by a handwritten portion which describes events occurring on "November the 9th." However, the verification is dated November 8, 2004. I must therefore conclude that the handwritten portion of the petition was not verified and I have not considered that portion of the petition.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one 's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien , 44 Ed Dept Rep 69, Decision No. 15,101).

In his November 2, 2004 letter, respondent's Administrative Assistant indicated that respondent's residency determination was based on investigative reports, the comments made and information obtained at the registration review conference, and Department of Motor Vehicle records. Respondent submitted evidence that between September 29, 2004 and October 29, 2004 (dates prior to respondent's November 2, 2004 determination), respondent's investigator conducted surveillance on five occasions during the early morning hours before school. On three of those occasions, the investigator observed petitioner, her vehicle or one or more of her children at the out-of-district address. On the other two occasions, respondent's investigator observed the in-district address and there was no indication of petitioner's presence. On three subsequent dates, the investigator again observed petitioner, her van and at least one of her children at the out-of-district address in the early morning hours.

Petitioner argues that the observations can be explained by the fact the father of one of her children resides at the out-of-district address and she sometimes picks him up for work or spends the night. She also admits that her vehicle is registered at the out-of-district address but alleges that this is because her father is a co-owner of the vehicle and lives there. Petitioner submits a vehicle financing document and a certificate of title in support of this contention. Petitioner alleges that the vehicle is insured in her name at the in-district address and submits a torn insurance card as proof.

However, petitioner has not produced a lease or other commonly accepted proof to establish her residence at the Beverly Road address. In fact, she offers no explanation of her alleged living arrangements at Beverly Road, whether by ownership, lease or otherwise. Petitioner only submitted copies of envelopes with unclear postmark dates, and what appears to be a packaging label dated November 23, 2003, which are addressed to her at the Beverly Road address.

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 (seeAppeal 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.

THE APPEAL IS DISMISSED.

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