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Decision No. 15,961

Appeal of T.F., on behalf of her daughter A.F., from action of the Sewanhaka Central High School District regarding residency.

Decision No. 15,961

(August 12, 2009)

Soleil, Roy, Rahim & Galloway, P.C., attorneys for petitioner, Andre Ramon Soleil, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq. of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her daughter, A.F., is not a district resident.  The appeal must be dismissed.

A.F. attended 11th grade at respondent’s Elmont Memorial High School (“Elmont”) during the 2008-2009 school year.  On September 3, 2008, respondent’s administrative review officer determined that petitioner resided on Biltmore Avenue in Elmont, within the district and that her three daughters, including A.F., were, therefore, entitled to attend respondent’s schools.   

On September 24, 2008, petitioner withdrew her two other daughters from Elmont, explaining that her family moved outside the district to Rockville Centre, within the Malverne Union Free School District (“Malverne”).  On or about October 6, 2008, respondent received a request from Malverne for records for petitioner’s other daughters who were enrolled in Malverne’s middle school.  Petitioner signed a form requesting respondent to release copies of their school records to Malverne. 

By letter dated October 14, 2008, petitioner was notified that A.F. was not entitled to attend respondent’s schools on the basis of “actual residence elsewhere.”  Petitioner appealed and respondent convened an administrative review on October 24, 2008.  Petitioner testified that she and her children moved to Rockville Centre on or about September 27, 2008 and signed a one-year lease for an apartment there.

On December 15, 2008, petitioner received respondent’s determination that A.F. was not a resident, did not meet the definition of a homeless child and would be excluded from its public schools on January 30, 2009.  This appeal ensued.  Respondent’s superintendent authorized A.F.’s continued attendance pending receipt of this decision. 

Petitioner contends that her residence in Rockville Centre is temporary and that she intends to return to Elmont if she is able to find an affordable apartment that would accept Section 8 Housing Assistance.  Petitioner admits that she has been unable to locate an apartment in Elmont despite searching for almost a year before settling in Rockville Centre.  Petitioner argues that it is not in A.F.’s best interest to be removed from the school that she thrives in academically and athletically.  Petitioner does not allege in her petition that A.F. is a homeless child, so that issue is not before me in this appeal.

Respondent contends that A.F. is not entitled to attend its schools because she and petitioner reside outside the district.  Respondent asserts that its determination is rational and supported by the record. 

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of Hussain, 46 Ed Dept Rep 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Stewart, 46 Ed Dept Rep 92, Decision No. 15,450; Appeal of Speckman, 46 id. 74, Decision No. 15,444).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Hussain, 46 Ed Dept Rep 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450; Appeal of Castro, 45 id. 88, Decision No. 15,266).

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).

The issue in this appeal is whether or not petitioner’s absence from Elmont is temporary.  Petitioner admits that she and her children reside in Rockville Centre within Malverne and that she signed a one-year lease for her current apartment.  The record reflects that her other daughters attend school in Malverne as residents of that district.  Petitioner offers no explanation of how her other daughters can be residents of Malverne while A.F. purportedly remains a resident of Sewanhaka.  While petitioner expresses an intent to return to Elmont, she provides no evidence of continuing ties to the community or any timeline for making such a move.  Petitioner’s claimed intent to return to the district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or at the very least, a concrete and realistic plan to do so (Appeal of Lawrence, 47 Ed Dept Rep 11, Decision No. 15,606; Appeal of J.V., 44 id. 421, Decision No. 15,218; Appeal of Collins, 44 id. 74, Decision No. 15,103).  Accordingly, I find that she has failed to prove that she is a resident of respondent’s district or that respondent’s decision was arbitrary and capricious.