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Decision No. 15,458

Appeal of EVETTE MILLER, on behalf of her son, DONALD LEFEVRE, from action of the Baldwin Union Free School District regarding residency.


Decision No. 15,458


(August 25, 2006)


Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq. of counsel.


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her son, Donald, is not a district resident.  The appeal must be dismissed.

On or about August 23, 2005, petitioner enrolled Donald in respondent’s schools using an address on Grand Avenue in Baldwin.  With her application, petitioner provided a copy of a one-year lease for an apartment at that address through June 30, 2006.

In January 2006, a school counselor reported that Donald’s home telephone number was incorrect and that someone other than petitioner answered the telephone.  Respondent commenced an investigation of Donald’s residence, including surveillance.

Respondent’s investigator observed the Grand Avenue residence on six mornings between March 9 and May 2, 2006, from approximately 6:45 a.m. to 7:50 a.m., without seeing petitioner or Donald enter or exit.  The investigator later verified that Donald was present in school on all six dates.  Surveillance conducted on May 1, 2006 at 8:45 p.m., revealed no lights on the second floor where petitioner’s apartment is located, no activity and no one entering or exiting the residence.  In addition, mail addressed to petitioner at the Grand Avenue address was returned to respondent in April 2006.

By letter dated April 11, 2006, respondent’s director of pupil services (“director”) advised petitioner that he believed Donald was not a resident and would be excluded from school effective May 4, 2006.  Petitioner was invited to meet with the director on April 27, 2006 and to submit documentary evidence of her residency.  Petitioner did not attend the meeting but instead telephoned the investigator on May 3, 2006 and indicated that she rents the second floor apartment at the Grand Avenue address.  Petitioner explained that she was temporarily absent from that apartment due to a problem with the heating system.  Petitioner told the investigator that she was staying with a family in Hempstead until repairs were made by the landlord.  As proof of residency, petitioner submitted utility bills with the Grand Avenue address and her New York State driver’s license with an address of Clinton Avenue in Inwood.

The director sent a second letter to petitioner on May 9, 2006 as respondent’s final residency determination excluding Donald as of June 23, 2006.  Respondent continued its investigation.

On or about May 30, 2006, petitioner’s landlord was contacted by the investigator.  The landlord’s secretary told the investigator that the heating repairs had been made to petitioner’s apartment and that petitioner requested permission to break her lease.  On that same date, petitioner informed the district that Donald resides with a friend.  Surveillance of the Grand Avenue address continued.  On June 1, 2006 at 9:50 p.m., the investigator observed no lights or activity.  Neither Donald nor petitioner was observed early on the mornings of May 31, June 2, 5, 6, or 7, 2006, although Donald was in school on each of those days. 

On June 7, 2006, petitioner was observed driving Donald to school from a residence on Fulton Avenue in Hempstead, outside the district.  Petitioner’s vehicle was observed at the Hempstead residence on the mornings of June 8 through 19, 2006 and petitioner was observed driving Donald to school from that address on June 15 and 16, 2006.  This appeal ensued.  Petitioner’s request for interim relief was granted on June 13, 2006.

Petitioner contends that she and Donald reside on Grand Avenue in Baldwin, within respondent’s district.  Respondent contends that petitioner and Donald reside on Fulton Avenue in Hempstead, outside the district.  Respondent asserts that the appeal is premature because petitioner’s lease expires on June 30, 2006 and she is free to re-register Donald for the 2006-2007 school year if she establishes residency within the district.  Respondent also contends that petitioner has not established a bona fide residence within the district by renting an apartment on Grand Avenue and paying utilities while actually living in Hempstead, outside the district.

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).  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).

     Based on the record before me, I find that respondent’s determination is neither arbitrary nor capricious.  Petitioner’s lease for the Grand Avenue apartment has expired and the utility bills are unpersuasive in view of the contrary surveillance evidence submitted by respondent.  Specifically, during the period of respondent’s investigation from March through June 2006, surveillance showed that petitioner and Donald were never present at the Grand Avenue address.  In addition, petitioner’s driver’s license identifies her residence as Clinton Avenue in Inwood, outside respondent’s district.

     While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on Donald’s behalf at any time should circumstances change (Appeal of Orr, 45 Ed Dept Rep 153, Decision No. 15,287).