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Decision No. 15,593

Appeal of SANDRA POLLOCK, on behalf of her son HAKEEM GEORGE, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,593

(June 12, 2007)

Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

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

In June 2000, petitioner was permitted to register Hakeem in the Uniondale Union Free School District (“district”) based upon her representation that she and Hakeem resided on Hempstead Boulevard within the district.  The Hempstead Boulevard residence is owned by petitioner’s father.

In May 2006, the district initiated a residency investigation.  On May 19, 2006, at approximately 7:18 a.m., the district’s residency investigator (“investigator”) observed a white van drop off two students at the Hempstead Boulevard residence.  The students then entered the residence.  On June 12, 2006, at approximately 7:18 a.m., the investigator observed a green sports utility vehicle (“SUV”), registered to Hakeem’s father parked near the Hempstead Boulevard residence.  Hakeem was then observed leaving this vehicle and walking to the school bus stop.  On June 15, 2006, at 6:29 a.m., the investigator observed the same green SUV parked near 133rd Avenue in Jamaica, outside the district.  Petitioner, Hakeem’s father, Hakeem and an infant were observed entering this vehicle and driving to the Hempstead Boulevard residence.  On June 19, 2006, at approximately 6:56 a.m., the investigator observed petitioner, Hakeem’s father, Hakeem and an infant leaving the Jamaica residence, entering the green SUV and driving away.  The green SUV is registered to Hakeem’s father at the Jamaica address.

The district obtained an Auto Track XP Address Investigation Report (“report”) regarding petitioner.  The report has eight address entries for petitioner from March 1999 to June 2001.  Seven of the entries, including the most current entry, list the Hempstead Boulevard residence as petitioner’s address.  One of the entries, the second most current, lists the Jamaica residence as petitioner’s address.

By letter dated June 19, 2006, the superintendent and the administrative assistant for central registration (“administrative assistant”) advised petitioner that they had determined that Hakeem was not a district resident and that he would be excluded from respondent’s schools after June 23, 2006.  The letter further advised petitioner that she could appeal this decision by requesting a registration review conference (“conference”).

Petitioner requested a conference which was held on June 22, 2006.  In connection with this conference, petitioner completed a pre-registration review form, in which she alleged that, since 1997, she and Hakeem have lived in her father’s Hempstead Boulevard home.  During the conference, petitioner admitted that she frequently went back and forth between the Hempstead Boulevard address and the Jamaica address, where her husband resides, and that she often spent the night at the Jamaica address.

By letter dated June 26, 2006, the administrative assistant affirmed the June 19, 2006 decision that Hakeem was not a district resident and advised that he would be excluded from respondent’s schools after June 23, 2006.

In July 2006, petitioner attempted to re-register Hakeem in respondent’s schools by using the Hempstead Boulevard address.  By letter dated August 1, 2006, the administrative assistant advised petitioner that Hakeem’s registration application was denied because he is a non-resident.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 13, 2006.

Petitioner contends that both she and Hakeem are district residents because they reside at the Hempstead Boulevard address.  Respondent contends that petitioner has failed to establish that she and Hakeem are district residents.

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 petitioner has failed to establish actual physical presence in the district.  She has not provided any documentation to substantiate her claim that she and Hakeem are district residents.  Respondent, on the other hand, produced surveillance evidence and other documentation showing that petitioner’s residence was outside of the district.  Between May 19 and June 19, 2006, surveillance was conducted at the Hempstead Boulevard and/or Jamaica residences on four occasions and on three of these occasions Hakeem was observed being dropped off at or near the Hempstead Boulevard residence early in the morning.  On the fourth occasion, Hakeem was observed being driven away from the Jamaica residence early in the morning.  Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

Although the petition must be dismissed upon the record before me, I note that petitioner has the right to reapply to the district for admission on her son's behalf if circumstances have changed.