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Decision No. 15,450

Appeal of LAMONT and EBONY STEWART, on behalf of their daughter LATAVIA, from action of the Board of Education of the Malverne Union Free School District regarding residency.


Decision No. 15,450


(August 21, 2006)


Ehrlich, Frazer & Feldman, attorneys for respondent, Philip Kouyoumdjian, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that their daughter, Latavia, is not a district resident.  The appeal must be sustained.

In the fall of 2005, Latavia attended elementary school in respondent’s district.  By letter dated November 9, 2005, respondent’s Director of Pupil Personnel Services (“director”) notified Ms. Stewart that the district had become aware that she resided outside the district and that Latavia would be excluded from school as of November 23, 2005.  In response, petitioners submitted documentation to demonstrate that they were district residents.  By letter dated December 7, 2005 respondent informed Ms. Stewart that it affirmed the decision of the director and that Latavia would be excluded from school as of December 9, 2005.  This appeal ensued.  Petitioners’ request for interim relief was granted on January 6, 2006.

In support of their residency claim, petitioners explain that they had resided within the district with Mr. Stewart’s mother.  When those living arrangements did not work out, petitioners admit that they moved out of the district and that they temporarily resided with Ms. Stewart’s mother in Freeport, while looking for an apartment in the district.  They maintain that during October, they found an apartment within the district and made a deposit on October 21, 2005 for a November rental.

Respondent contends that it properly determined that petitioners’ daughter is not a district resident based on surveillance evidence.  Respondent also asserts that petitioners’ evidence is not sufficient to prove that its determination was an abuse of discretion.

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).

Respondent’s investigator conducted surveillance on five instances between October 27 and November 3, 2005.  On one occasion, he observed Latavia get off the bus in the district after school and enter a house presumed to be a day care center.  At approximately 5:30 p.m. a car registered to Ms. Stewart came to the house and picked up Latavia.  The next morning at 6:45 a.m. the same car was parked in Freeport, outside the district.  Latavia and Ms. Stewart were observed driving from Freeport to the in-district bus stop and waiting for the bus.  Latavia was also seen being dropped off at the bus stop on October 28, 31, and November 3, 2005.

Petitioners submitted three receipts -- one for a deposit on an apartment in the district and the other two for November and December rent.  They also submitted redacted copies of a utility bill and a cablevision bill in Ms. Stewart’s name for the in-district apartment.  Additionally, petitioners submitted a proof of residency letter from Long Island Power Authority.  Respondent disputes the validity of the accounts because petitioners redacted the amounts paid from each bill submitted.  Respondent also disputes that the rent payment receipts prove residency because petitioners did not submit a signed lease agreement.

I do not find respondent’s surveillance evidence persuasive proof that petitioners do not reside in the district.  Petitioners admit that they lived out of the district temporarily during October 2005 while looking for a new apartment.  While petitioners did not submit a lease specifying the commencement of the in-district rental, it appears from the receipts that the rental began on November 1, 2005.  The majority of respondent’s surveillance was conducted prior to that date, during the period when petitioners were admittedly absent.  In addition, although the amounts paid were redacted from the utility and cable bills, there is no solid evidence to show that the bills are anything other than legitimate proof of petitioners’ residency at the in-district apartment.

Accordingly, on the record before me, I find insufficient evidence to support respondent’s determination that petitioners are not district residents and therefore find that respondent’s decision was arbitrary and capricious.




IT IS ORDERED that respondent allow Latavia to attend school in the Malverne Union Free School District without the payment of tuition.