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Decision No. 16,219

Appeal of J.D., on behalf of her children M.D. and D.D., from action of Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 16,219

(March 31, 2011)

Lexow, Berbit & Associates, P.C., attorneys for respondent, Susan Mills Richmond, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her children are not district residents.  The appeal must be dismissed.

In July 2009, petitioner moved into her sister’s home in New City, New York, within respondent’s district (“New City address”).  She registered her children to attend school in the district in September 2009.  Prior to that time, petitioner resided with her children in Florida.   Petitioner’s husband, due to marital issues, maintains a separate residence in Pomona, New York (“Pomona address”) outside the district.

Based on information received by district staff, surveillance was conducted at the Pomona address on two occasions in April and May 2010.  On both mornings, petitioner’s husband was observed leaving the Pomona address with the children at approximately 7:00 a.m.  During the April 2010 surveillance, petitioner’s husband was observed dropping the children off at the New City address.  During the May 2010 surveillance, a female was observed leaving the Pomona address, however, the surveillance report does not specifically determine whether it was petitioner.

By letter dated May 14, 2010 respondent’s designee notified petitioner that her residency was in question.  Petitioner responded by letter dated May 20, 2010 and, on June 7, 2010, the designee notified petitioner of the determination that she and her children are not district residents.  Petitioner was again afforded an opportunity to present further information which she apparently did on June 21, 2010.  By letter dated July 1, 2010, respondent’s designee notified petitioner of her final determination of non-residency and this appeal ensued.

Petitioner asserts that respondent’s residency determination is not supported by the record.  Respondent maintains that petitioner and her children reside outside the district at the Pomona address and that its residency determination is proper in all respects.   Respondent seeks tuition for M.D. and D.D. for the 2009-2010 school year.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner presents no documentation to support her claim of residency at the New City address.  In response to the surveillance, she asserts that, because she must be at work at 6:00 a.m., the children stayed overnight at the Pomona address so that their father could prepare them for school and bring them to the New City address to catch the bus.

In support of its determination, respondent submits several documents including the surveillance report for the two dates in April and May 2010.  Respondent provides a copy of a landlord affidavit that petitioner presented at time of registration, and copies of the children’s registration forms.  Each states that both petitioner and her husband reside at the New City address, contradicting petitioner’s claim here that she and her husband were separated at that time.  Respondent also provides a March 2010 white pages listing for petitioner and her husband, as well as a March 2010 school health appraisal for D.D.  Each identifies the Pomona address as their residence.

In addition, respondent also submits correspondence from petitioner concerning its preliminary residency determination.  Specifically, her May 20, 2010, letter  states that petitioner and her husband considered transferring the children to the school district in which the Pomona residence is located.  Petitioner stated that the family ultimately chose not to complete the transfer until the end of the school year so as not to further disrupt the children’s lives.

Although respondent’s evidence is not overwhelming, petitioner has not established physical presence in the district.  Indeed, she offers no documentary proof of residency there.  Accordingly, on the record before me, I cannot conclude that respondent’s decision was arbitrary or capricious and find no basis to annul its residency determination.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.