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Decision No. 15,275

Appeal of TERRY LOFTIN, on behalf of his son RASHAAD, from action of the Board of Education of the Elmsford Union Free School District regarding residency.

Decision No. 15,275

(August 12, 2005)

Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmsford Union Free School District ("respondent") that his son is not a district resident. The appeal must be dismissed.

Petitioner alleges that he and his son moved from North Yonkers into the home of a relative in respondent' s district when petitioner separated from his wife in July 2004. Petitioner's son began attending respondent's high school in September 2004, but the district initiated a residency investigation in December after receiving information that he was living outside the district. The residency investigation included surveillance of the North Yonkers residence and the district residence. Petitioner's son did not leave from the district residence on the one school morning that surveillance was conducted there, but he did leave from the North Yonkers residence on the two school mornings that surveillance was conducted at that location.

By letter dated December 9, 2004, respondent's superintendent offered petitioner an opportunity to submit evidence concerning his son's right to attend school in the district. Petitioner met with the superintendent and presented his driver's license issued on December 14, 2004. Rather than exclude petitioner's son at that point, the superintendent arranged for further surveillance. That surveillance revealed petitioner's son leaving the North Yonkers residence on three additional school mornings in the latter part of December 2004. The superintendent made a determination of non-residency on January 7, 2005, and this appeal ensued. Petitioner's request for interim relief was denied on January 21, 2005.

Petitioner asserts that his son resides with him in respondent's district. Acknowledging that he and his wife are moving towards reconciliation, petitioner asks that his son be permitted to complete his senior year in high school while residing in the district with a family member as guardian. Respondent contends its residency determination was based upon substantial evidence demonstrating that petitioner and his son reside in North Yonkers.

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 failed to establish that his son is physically present as an inhabitant in the district. He contends that his son resides within the district on weekdays, but the district's surveillance found his son leaving from the North Yonkers residence on five weekday mornings in December 2004. Although petitioner explains that his son's presence at the North Yonkers residence during the latter part of November was due a death in the family, he offers no explanation for the surveillance findings documented in December, and he admits that his son continues to reside in North Yorkers on weekends and holidays.

Petitioner also failed to demonstrate a legal basis for allowing his son to remain with another family member as guardian in the district to complete his senior year at respondent's high school. Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917). Accordingly, I cannot conclude that respondent's determination was arbitrary or capricious. Moreover, since the 2004-2005 school year has ended, it is likely that petitioner's son has graduated from high school, rendering this appeal moot.