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Decision No. 15,452

Appeal of KATRICIA BODDEN, on behalf of her daughter KAYLA JONES, from action of the Board of Education of the Malverne Union Free School District regarding residency.


Decision No. 15,452


(August 21, 2006)


Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Kevin G. McMorrow, Esq., of counsel


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

Petitioner enrolled Kayla in respondent’s district for the 2005-2006 school year.  Based on reports that Kayla was not riding on her scheduled school bus, but was observed being dropped off at school by an unidentified male, respondent commenced a residency investigation.  Respondent conducted a surveillance on November 1, 3, 4 and 7, 2005.  The surveillance indicated that, on those dates, petitioner and Kayla were observed at an address outside the district and, on the mornings of November 3, 4, and 7, 2005 Kayla was driven to school from that address.

Respondent’s designee (“designee”) notified petitioner that her residency was in question and, on November 15, 2005, conducted a residency hearing, at which petitioner appeared and submitted documentation in support of her claim that she and Kayla resided with her parents in the district.  Subsequently, the designee determined that petitioner and Kayla were not, in fact, district residents.

Petitioner appealed the determination to respondent and, on December 7, 2005, respondent upheld the residency determination.  This appeal ensued.  On December 28, 2005 petitioner’s request for interim relief was granted. 

Petitioner asserts that she and Kayla reside with her parents within respondent’s district.  Petitioner acknowledges that she sometimes stays with her fianc� at his home outside the district.  She maintains that she does so because she takes classes three nights a week and her fianc� takes care of Kayla on those nights.  Petitioner also was eight and a half months pregnant at the time of the district’s surveillance and states that she required her fianc�’s additional assistance during this time.  Petitioner contends that respondent’s determination is contrary to the evidence. 

Respondent maintains that petitioner and Kayla are not district residents and that its determination was rational.

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).

Petitioner submits extensive documentation in support of her claim of residency.  These include petitioner’s 2004 federal and State income tax returns, New York State driver’s license, automobile insurance policy, employment benefits statement, a Social Security Administration Supplemental Security Income Notice, bank statement, juror summons, collection notice, parking violation enforcement judgment and several other notices and letters.

Respondent relies on the surveillance report in which petitioner was observed at her fianc�’s home outside the district on four dates over a one week period.  I note that on the first date, November 1, 2005, the report indicates that petitioner and Kayla went to the fianc�’s home after school.  However, the surveillance concluded at 7:00 p.m.  Therefore, it does not necessarily show that petitioner and Kayla did not return to the district that evening.  In addition, petitioner has adequately explained her presence at her fianc�’s home on the other three occasions, due to child care and personal issues. 

In sum, respondent’s surveillance evidence and other arguments do not persuade me that petitioner and her daughter reside outside respondent’s school district.  In light of petitioner’s extensive documentation and plausible explanation for her presence at her fiance’s home at times, I am constrained to find, on the record before me, that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.




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