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Decision No. 15,494

Appeal of CHARITY MAULDIN, on behalf of her children TAYLOR P. and OLIVIA G. MADISON, from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding residency.

Decision No. 15,494

(December 8, 2006)

Paul G. Madison, Esq., attorney for petitioner

Parshall & West, attorneys for respondent, Michael A. West, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Cobleskill-Richmondville Central School District (“respondent”) that her children, Taylor and Olivia, are not district residents.  The appeal must be dismissed.

Petitioner is the mother of two school-aged children who have attended respondent’s schools for a number of years.  Petitioner and the two children allegedly live on Fairview Drive, Cobleskill, within respondent’s district.

By letter dated August 17, 2006, the director of respondent’s Office of Pupil Personnel Services (“director”) asked petitioner to provide verification of the children’s residence within the district.  Petitioner responded by writing on the letter that her address was on Fairview Drive and faxing it back to the director.

By letter dated August 30, 2006, the district’s superintendent notified petitioner that her children would not be permitted to attend the district’s schools on a tuition-free basis because she had not provided documentation to verify that her permanent residence was within the district.  Thereafter, petitioner provided school officials with various documents, including a lease, with relevant terms redacted.

On September 5, 2006, respondent’s attorney notified petitioner that her children would not be allowed to attend school the following day.  This appeal ensued.  Petitioner’s request for interim relief was granted on September 20, 2006.

Petitioner alleges that she and the two children reside in respondent’s district and requests a determination that her children are residents thereof.

Respondent alleges that petitioner has a long history of abusing its residency rules and that petitioner does not intend to permanently reside within the district.  Respondent also alleges that petitioner and her children continue to live with their father whose residence is located within the Sharon Springs Central School D istrict.  Respondent maintains that its decision that petitioner is not a district resident was not arbitrary or capricious.

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).

     In support of her claim of residency, petitioner offers a lease, dated September 1, 2006, for an apartment in respondent’s district.  However, relevant provisions of the lease, such as the term and commencement and end date, have been redacted.  She also submits an official mail forwarding change of address order form indicating that mail should be delivered to the in-district apartment and a copy of her license with handwritten notation of an address change to the in-district apartment.

In opposition, respondent submits surveillance evidence from its attorney indicating that petitioner was not present at the in-district apartment on August 26, 27, 29, 30 and 31, or September 1, 2, 3, or the morning of September 4, 2006.  Respondent also submits an affidavit of a neighbor of the in-district apartment indicating that petitioner was not present there on the nights of September 8, 9, 12, 13, 15, 16, or 18, 2006.  Petitioner did not submit a reply explaining these surveillance findings.  Finally, respondent submits a letter from a neighbor of the Sharon Springs residence suggesting that petitioner and her children reside in Sharon Springs, outside the district.

In an appeal to the Commissioner, a 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; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530) I find the minimal evidence presented by petitioner to be insufficient to rebut the extensive surveillance evidence compiled by respondent.  Accordingly, based upon the record before me, I cannot find respondent’s determination to be either arbitrary or capricious.

     While the appeal must be dismissed, I note that petitioner has the right to reapply to the district for admission of her children at any time should circumstances change(Appeal of Holder, 44 Ed Dept Rep 32, Decision No. 15,088; Appeal of Normandin, 43 id. 153, Decision No. 14,950).