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Decision No. 15,432

Appeal of TOREKA LIPSCOMB, on behalf of her daughter ZYIARA, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.


Decision No. 15,432


(August 1, 2006)


Hodgson, Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel.


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District (“respondent”) that her daughter, Zyiara, is not a district resident.  The appeal must be dismissed.

Petitioner graduated from respondent’s Cleveland High School while residing with her parents on Croy Avenue in Buffalo.  Petitioner remained at that address after Zyiara was born and enrolled Zyiara in respondent’s schools in September 2003.  Zyiara began first grade at the start of the 2005-2006 school year.

After observing Zyiara being repeatedly dropped off in the morning in front of the Croy Avenue address, respondent conducted surveillance during November 2005 to determine her residency.  The surveillance showed that Zyiara was transported each morning to Croy Avenue from a residence on East Amherst Street in the City of Buffalo, outside the district.  After being dropped off, Zyiara was picked up by a district school bus on Croy Avenue and transported to the district’s schools.

By letter dated December 15, 2005, respondent’s superintendent informed petitioner that her daughter resided on East Amherst Street in Buffalo and would be excluded from school effective December 23, 2005 unless information was submitted establishing residency within the district.

At a meeting with the superintendent on January 3, 2006, an advocate for Zyiara acknowledged that Zyiara and her mother were living temporarily in the East Amherst Street residence, owned by petitioner’s parents, so the property would not be left vacant.  The advocate asked the superintendent to consider these circumstances and indicated that petitioner would commence an appeal.  The superintendent extended the date for Zyiara to remain in attendance through January 24, 2006.  This appeal ensued.  On January 31, 2006, petitioner’s request for interim relief was granted.

Petitioner admits living with Zyiara outside the district, but contends that the arrangement is temporary.  Petitioner asserts her intention to return with Zyiara to her parents’ Croy Avenue residence after the East Amherst Street property is rented or sold.

Respondent contends that petitioner and Zyiara reside in Buffalo, outside the district.  Respondent further contends that both the East Amherst Street and Croy Avenue properties are located in the City of Buffalo.  Respondent asserts that in the past, it mistakenly included the Croy Avenue address on an informal roster prepared by its registration office of properties.  Respondent contends that it has corrected the error based upon a document from the Town of Cheektowaga assessor’s office confirming that the Croy Avenue residence is located entirely outside district boundaries.

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).

     Based on the record before me, I find that respondent’s determination is neither arbitrary nor capricious. Petitioner admits living with her daughter in Buffalo outside the district.  Moreover, petitioner has not disputed evidence submitted by respondent showing that her parents’ Croy Avenue residence, to which she plans to return, is also outside the district.