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Decision No. 16,124

Appeal of JENNIFER N. STEPHEN, on behalf of her daughter KIARIAN, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,124

(August 9, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

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

Kiarian enrolled in respondent’s high school in September 2009.  At the time, petitioner lived with her fiancé in the district (“Baldwin address”).  Petitioner’s fiancé sold that property in January 2010.  Thereafter, mail sent by the district to petitioner at the Baldwin address was returned as undeliverable.  District staff also reported that the telephone number provided for the student was listed to an address outside the district in Freeport, New York (“Freeport address”).  By letter dated April 6, 2010, respondent’s director of pupil services (“director”) notified petitioner that her residency was in question and afforded her an opportunity to present information prior to a final determination.  The district also commenced surveillance at the Baldwin and Freeport addresses. 

On April 8, 2010 petitioner met with the director and the district registrar.  According to the director and registrar, petitioner stated that she had two other children residing and attending school in the Freeport Union Free School District and she did not want Kiarian to attend high school there.  Petitioner indicated that, after resolving a monetary dispute with the new landlord of the Baldwin property, she had returned to that address and entered into a lease commencing April 1, 2010.  Petitioner also provided a “Change of Student Information” form, dated April 8, 2010, changing Kiarian’s address from the Freeport to the Baldwin address. 

By letter dated April 9, 2010, the director notified petitioner of her determination that Kiarian was not a district resident and would be excluded from the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 28, 2010.

Petitioner claims that she and Kiarian moved out of the district for three and one half weeks some time after her fiancé sold the Baldwin property but that, upon reaching a financial agreement with the new owner, they moved back.  She claims therefore, that Kiarian is a district resident entitled to attend the district’s schools.

Respondent denies petitioner’s claims and asserts that its residency determination is 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 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).

On the record before me, I cannot conclude that respondent’s determination was arbitrary or capricious.  Respondent correctly notes that the lease provided by petitioner is not signed by either of the owners of the property.  A notarized statement, dated April 11, 2010, by one of the owners stating that petitioner lives at the Baldwin address is unpersuasive in light of the total evidence in the record.  Specifically, surveillance conducted after April 10, 2010 reported that, on four dates Kiarian was observed leaving the Freeport address in the morning; on ten dates, a green Ford vehicle admittedly used regularly by petitioner was observed at various hours at the Freeport address; and on seven dates, surveillance conducted at various hours at the Baldwin address did not observe petitioner, Kiarian or the green Ford there.  The telephone number in the district’s records was for the Freeport address and electric service that petitioner commenced at the Freeport address in March 2010 was still active as of April 29, 2010, after petitioner purportedly moved back into respondent’s district.

Moreover, additional information submitted by respondent and accepted for consideration indicates that correspondence relating to this appeal that was mailed to petitioner at the Baldwin address was returned undeliverable, while a copy mailed to her at the Freeport address was not returned.

Accordingly, based on the record before me, I find no basis to disturb respondent’s determination.  While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her daughter’s behalf, should circumstances change, and to present any new information for the district’s consideration.