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Decision No. 15,338

Appeal of KERRICK and TALLULA AGEE, on behalf of their son JARRETT POWELLS, from action of the Board of Education of the Pocantico Hills Central School District regarding residency.

Decision No. 15,338

(December 23, 2005)

Ingerman Smith LLP, attorneys for respondent, Neil M. Block, Esq.

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Pocantico Hills Central School District ("respondent") that their son, Jarrett, is not a district resident. The appeal must be dismissed.

Respondent began an investigation into petitioners' residency in April 2005 when it was discovered that Jarrett listed an out-of-district address for his student profile. During the month of April 2005, respondent's investigator conducted surveillance of the in-district address listed on Jarrett's registration form, in addition to the out-of-district address located in the Elmsford Union Free School District ("Elmsford ").

On April 15, 26 and 27, 2005, the investigator observed Jarrett's mother driving her son to the in-district address where he was dropped off at a school bus stop. In the late afternoon of April 15, the investigator observed Jarrett and his mother drive to and enter the Elmsford residence. A vehicle registered to Jarrett's father was parked in the same driveway. On April 16 and 17, 2005, the investigator observed petitioners and Jarrett at the Elmsford residence. On April 26, 2005, the investigator also observed Jarrett's mother at an out-of-district residence in Hartsdale, where the telephone is listed in petitioners' names.

In addition, the investigator found that the in-district telephone number provided by petitioners was disconnected but that a working telephone number was listed at the Elmsford residence. The investigator also found that New York State Department of Motor Vehicles' records indicate that petitioners drivers' licenses list the Elmsford residence and that the Elmsford residence is owned by Kerrick and Kerin Agee. The investigator submitted his report to respondent's designee on April 27, 2005, concluding that petitioners reside in Elmsford and possibly have a second residence in Hartsdale.

By letter dated June 1, 2005, respondent's designee advised petitioners that an investigation showed they did not reside within the district and invited them to meet on June 9, 2005 to discuss the factual basis for that conclusion. Petitioners were asked to submit documentary evidence. The June 1, 2005 letter indicated that petitioners' son would otherwise be excluded from school effective June 30, 2005. In response, petitioners submitted drivers' licenses listing the in-district address for Kerrick Agee and Jarret Powells issued in May 2005; a "shelter verification" form dated June 6, 2005 signed by Kevin Agee as landlord, and listing petitioners as tenants paying $1200 monthly rent but not specifying an address; and affidavits from two family members and a neighbor indicating that petitioners reside within the district.

By letter dated June 14, 2005, respondent's designee advised petitioners of the final determination excluding Jarrett from school as a non-resident, effective June 30, 2005. This appeal ensued. Petitioners' request for interim relief was denied on July 12, 2005.

Petitioners claim they continue to reside with Jarrett at the same in-district address they have maintained since September 2002. Petitioners claim that the Elmsford residence listed on Jarrett's student profile form is owned by his grandfather and uncle and has been used as his mailing address because of a security breach at their in-district mailbox.

Respondents claim its surveillance substantiates that petitioners and Jarrett reside outside the district in the Elmsford residence listed on the student profile form and thus, Jarrett is not entitled to attend respondent's schools.

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).

With their petition, petitioners attached copies of drivers' licenses for Jarrett and his father; a "shelter verification" form that does not indicate an address; as well as two affidavits signed by family members and one by a neighbor. The affidavits merely state in conclusory fashion that Jarrett resides within respondent's district. Petitioners further submitted copies of an automobile title and registration and a telephone listing with the in-district address. However, this evidence is contradicted by respondent's investigatory findings and therefore, I find that petitioners have failed to meet their burden of proof (Appeal of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; 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 appeal must be dismissed, I note that petitioners have the right to reapply to the district for admission of their son at anytime should circumstances change (Appeal of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of Holder, 44 Ed Dept Rep 32, Decision No. 15,088).