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Decision No. 15,420

Appeal of TANYA JOHNSON, on behalf of her son MALEEK, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.


Decision No. 15,420


(June 30, 2006)


Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges a determination by the Board of Education of the Sewanhaka Central High School District ("respondent") that her son, Maleek, is not a district resident.  The appeal must be dismissed.

On January 9, 2006, the administrative assistant to the district's superintendent sent a letter to petitioner advising that a preliminary determination had been made that Maleek was not entitled to attend district schools because petitioner resided outside the district.  A letter further advised that Maleek would be excluded from district schools effective January 24, 2006, unless petitioner requested a hearing.

At petitioner's request, a hearing was held on January 25, 2006, before an administrative review officer.  Petitioner attended the hearing and testified that she had been unemployed for approximately two years, and that she and Maleek lived with her sister at Terrace Avenue, Elmont, within the district.  She further stated that for approximately two months prior to the hearing, she had been leaving her sister's residence at 5:00 a.m. to drive to her father's home at Edgewood Avenue, Laurelton, Queens, an address outside the district, and that Maleek often accompanied her.  She testified that her father was seriously ill, and that she visited him each morning to be sure that he took his medication and ate breakfast.  She testified that sometimes Maleek accompanied her when she visited her father, but more often she went alone, returned to the Terrace Avenue address, picked up Maleek, and drove him to school.  She also testified that Maleek sometimes walked to school.

The district presented surveillance evidence tending to show that petitioner and Maleek did not live with petitioner's sister, but lived at the Laurelton address owned by petitioner's father.  The district also produced petitioner's New York State driver's license, which listed the Laurelton address.

On February 6, 2006, the hearing officer issued a letter determination finding that Maleek was not entitled to attend district schools because his parent, petitioner, resided outside the district.  On February 14, she provided a copy of her full decision, and advised that Maleek would be excluded from district schools on February 28, 2006.

Petitioner commenced this appeal on February 28, 2006, and an interim order was issued March 10, 2006, allowing Maleek to attend district schools pending a determination of this appeal.

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 Innocent, 44 Ed Dept Rep 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).

At the January 25, 2006, hearing, the district presented surveillance evidence with respect to both the Laurelton and Elmont addresses.  Surveillance at Laurelton was conducted on December 16 and 19, 2005, and January 3, 4, and 9, 2006.  On the first four occasions, at approximately 7:20 a.m., petitioner and Maleek left the building, entered an automobile registered to petitioner's father, and drove in the direction of Sewanhaka.  Neither petitioner nor Maleek was observed at that location on January 9.

Further surveillance was conducted at the Elmont address on January 4, 5, 6, and 9, 2006.  On each occasion, neither petitioner nor Maleek was seen leaving petitioner's sister's home, but school records indicated that Maleek was present in school prior to the end of the surveillance period on each of those four dates.

On the date of the hearing, January 25, petitioner was seen leaving her father's residence at 7:30 a.m., but Maleek was not seen at either address (no regular classes were scheduled on that date).

Petitioner offers a one sentence affidavit from her nephew that he drove "Maleek Ramsay" [sic] to school from the Elmont address on January 6, 2006.  In addition, the record contains an affidavit of petitioner's sister sworn August 14, 2004, stating that petitioner and Maleek lived with her at the Elmont address.

On the record before me, I find that respondent rightly concluded that petitioner has not supported her claim that she and Maleek reside within the district.  The scant evidence offered by petitioner is far from convincing in light of the surveillance evidence presented by respondent.  During the periods of surveillance, the only vehicle driven by petitioner was the automobile registered to her father at the Laurelton address.  Petitioner was never seen picking up her son at the Elmont address, as she testified she often did, and Maleek was never observed at the Elmont address on any occasion.  Moreover, petitioner has not served a reply to respondent's answer and the proof submitted therewith.

I thus find respondent's determination to be neither arbitrary nor capricious.