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Decision No. 15,948

Appeal of CAROLANN LANDON, on behalf of her son LUCAS HASKIN, from action of the Board of Education of the Westfield Central School District regarding residency.

Decision No. 15,948

(July 14, 2009)

Hodgson Russ LLP, attorneys for respondent, Ryan L. Everhart, Esq., of counsel

Huxley, Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Westfield Central School District (“respondent”) that her son, Lucas, is not a district resident entitled to attend its schools tuition-free.  The appeal must be sustained.

The record indicates that Lucas attended respondent’s schools as a resident student from kindergarten through third grade.  During that time, petitioner and Lucas lived with her parents on Jefferson Street within respondent’s district.

During the 2007-2008 school year, Lucas attended fourth grade in respondent’s district as a non-resident tuition-paying student.  In September 2008, petitioner enrolled Lucas as a resident student in respondent’s fifth grade based on the Jefferson Street address. 

By letter dated October 8, 2008, respondent’s business manager questioned petitioner’s residency and requested documentation of her in-district residence.  In response, petitioner provided a copy of her driver’s license which was issued on August 21, 2008 and listed Jefferson Street as her address.

In March 2009, respondent’s superintendent notified petitioner that she was not a district resident.  The superintendent stated that if petitioner was unable to substantiate her residency within the district by March 13, 2009, Lucas would be excluded from school effective March 16, 2009.

Petitioner asserts that at a March 13, 2009 meeting with respondent’s superintendent and business manager, she provided copies of several documents listing Jefferson Street as her residence, including her driver’s license, voter registration card, New York State nursing registration certificate and a hospital bill.  However, according to respondent, petitioner also stated that she and Lucas lived at her husband’s out-of-district residence on weekends and that this arrangement was made so that Lucas could continue attending the district’s schools.  Based on this information, the superintendent determined that Lucas was not a district resident and excluded him from enrollment.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 9, 2009.

Although petitioner admits that her husband resides outside respondent’s district and that she and Lucas visit him on weekends, she claims that she and Lucas have “returned to ... Jefferson Street to live.”  Respondent claims that its determination that petitioner lives outside the district was rational and is supported by the record.

With her petition, petitioner submitted several canceled checks and letters from her mother, husband, a neighbor and Lucas’s godmother.  Respondent objects to the submission of these documents as they were not before the superintendent at the time he made his determination.  Although this evidence was not previously considered, respondent has had ample opportunity to address it in its answer, and thus, I have considered the documents (seeAppeal of Short, 43 Ed Dept Rep 137, Decision No. 14,945).

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

Petitioner claims, and respondent does not dispute, that Lucas lives with her.  The issue is whether she lives with her parents on Jefferson Street within the district, or with her husband outside the district.

As noted above, in support of her residency claim, petitioner submits several documents listing her address as Jefferson Street.  I note that, of these documents, only petitioner’s driver’s license, which was issued in August 2008, appears to have originated prior to the October 2008 commencement of respondent’s residency investigation.  Petitioner also submits 10 canceled checks which she explains were written to her parents for rent at the Jefferson Street residence.  The checks vary in amounts from $70.00 to $350.00.  Nearly all appear to have been written during the period of respondent’s residency investigation and list petitioner’s husband’s out-of-district address.  Only two checks, written in February and March 2009, list the Jefferson Street address.

In addition, petitioner submits unsworn letters from her mother, husband, a neighbor and Lucas’s godmother, stating that she lives at the Jefferson Street residence.  Petitioner’s mother states that petitioner pays rent of between $200 and $250 per month for the Jefferson Street residence and notes that Lucas “would not do well emotionally or educationally if made to atten[d] another district.”  An April 1, 2009 letter from petitioner’s husband states that he has custody of his two children, who attend school in another district, and that he and petitioner live apart because “neither one of us wanted to uproot our children from the only school they have attended.”

To counter this evidence, respondent relies on petitioner’s statements that she and Lucas visit her husband at his out-of-district residence on weekends.  Respondent submits an affidavit from Lucas’s teacher stating that during an October 20, 2008 meeting with petitioner and her husband, petitioner stated that she and Lucas “only reside at ... Jefferson Street ... during the week.  On the weekends, [petitioner] informed me that she and Lucas live with her husband” outside respondent’s district.  The superintendent also asserts in an affidavit that he “considered observations from several District and community members indicating” that petitioner has attempted to establish residency in the district solely to take advantage of respondent’s schools.  Finally, the business manager’s affidavit states that “[v]arious persons in the community have commented to me that Lucas and his mother have created a pre-textual living arrangement ....”  The business manager also states that “[o]n numerous occasions I have driven past ... Jefferson Avenue .... Both during the week and on weekends, I have noted that [petitioner’s] car is not in the driveway, and there is no other indication that she is present in the residence.”  However, other than these uncorroborated statements, respondent has produced no documentation of its investigation and surveillance, nor has it produced any other evidence to rebut petitioner’s claims.

Respondent also argues that the reason petitioner is trying to establish residency is to take advantage of respondent’s schools.  Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeal of Proctor, 46 id. 575, Decision No. 15,599).  However, families may, and often do, establish residency based on their preference of school districts (Appeal of W.D. and P.Z-D., 44 Ed Dept Rep 77, Decision No. 15,104).  This is not to be confused with situations in which parents rent or purchase property in a district for the sole purpose of having their children attend district schools without intending to become district residents (seeAppeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  Nor should it be confused with situations in which parents transfer custody and control of their child to a third party merely for the purpose of establishing the child’s residency, apart from the parents, in order for the child to take advantage of district schools (seeAppeal of Cuesta, 42 Ed Dept Rep 6, Decision No. 14,755).

The record indicates that, beginning with her driver’s license in August 2008, petitioner has taken systematic steps over time to change her address on various documents to establish that she resides within respondent’s district.  Although several documents submitted by petitioner appear to post-date the commencement of respondent’s residency investigation, they corroborate her assertion that she and Lucas recently moved back into her parents’ home in respondent’s district. 

In addition, except for the canceled checks and letters, respondent does not deny that such documents were before the superintendent at the time he made his residency determination.  Moreover, respondent fails to produce any evidence to contradict the letters from petitioner’s family and friends.  Finally, the fact that petitioner and Lucas continue to spend time outside the district on weekends is not necessarily inconsistent with their residency within the district (seeAppeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Noti, 40 id. 393, Decision No. 14,508).

Therefore, based on the totality of the record before me, I find that respondent’s determination that petitioner and Lucas are not district residents is based on insufficient evidence and is therefore arbitrary and capricious (seeAppeal of Burnett, 42 Ed Dept Rep 208, Decision No. 14,825; Appeal of Pacheco, 38 id. 112, Decision No. 13,995).  Accordingly, respondent’s determination must be set aside.


IT IS ORDERED that respondent allow Lucas Haskin to attend school in the Westfield Central School District without the payment of tuition.