Skip to main content

Decision No. 15,271

Appeal of LINDA POLISTIN, on behalf of her daughter TANYA DESIR, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,271

(August 5, 2005)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her daughter is not a district resident. The appeal must be dismissed.

In September 2002, petitioner enrolled her daughter in respondent's schools. On the enrollment application, petitioner identified a Forest Avenue address within respondent's district. Petitioner subsequently admitted that she did not reside at that address but resided in Freeport. She agreed to pay respondent tuition so that her daughter could continue in attendance in respondent's schools for the 2002-2003 school year. In September 2003, petitioner re-registered her daughter in respondent's schools. On the enrollment application she listed Garfield Road in respondent's district as her residence.

In March 2005, respondent conducted a residency investigation of another student at the same Garfield address and petitioner's daughter was not seen at that address. In response, respondent initiated a residency investigation of petitioner and her daughter.

The investigator conducted nine surveillances at the Garfield address and neither petitioner nor her daughter were seen leaving that address. By letter dated April 15, 2005, respondent's director of pupil services advised petitioner that her daughter was not a district resident. Petitioner met with district officials on April 21, 2005 and allegedly admitted that she and her daughter live in Hewlett and not in respondent's district. Petitioner also allegedly stated that her daughter sometimes stays with petitioner's sister in Freeport, outside respondent's district.

The investigator conducted several surveillances at the Freeport address and petitioner's daughter was seen leaving that address five times. The investigator conducted six surveillances at the Hewlett address. On five occasions, the vehicle petitioner uses was found at that address. Petitioner was twice seen driving her daughter from that address to school.

By letter dated May 20, 2005, petitioner was notified of respondent's determination that she and her daughter were not district residents. This appeal ensued. Petitioner's request for interim relief was granted on June 7, 2005.

Petitioner contends that she and her daughter reside within respondent's district. Respondent contends that it properly determined that petitioner and her daughter are not district residents.

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).

Petitioner has failed to meet her burden of proving that respondent's determination was arbitrary or capricious. Other than a statement in her petition that she and her daughter reside at the Garfield Road address, petitioner provides no evidence supporting her claim. Moreover, petitioner did not submit a reply to respondent's answer that contains surveillance evidence as well as sworn affidavits stating that petitioner admitted to district officials that she did not live in respondent's district.

Therefore, based on the record before me, I find that petitioner has not sustained her burden of establishing that respondent's determination was arbitrary or capricious.