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Decision No. 16,249

Appeal of DEDRIA GREGG, on behalf of her son JOSIAH, from action of the Board of Education of the North Babylon Union Free School District regarding residency.

Decision No. 16,249

(June 13, 2011)

Guercio & Guercio, LLP, attorneys for respondent, Nancy M. Hark, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the North Babylon Union Free School District (“respondent”) that her son, Josiah, is not a district resident.  The appeal must be dismissed.

In September 2009, petitioner enrolled Josiah in respondent’s schools, stating that she lives on Westchester Avenue, within respondent’s district.  A September 8, 2009 home visit by respondent’s director of student data services (“director”) confirmed that petitioner and her son were residing at the address given.  Soon thereafter, the director was notified by a government agency that petitioner and her son live in Wyandanch, outside respondent’s district.

Respondent did not begin to conduct surveillance until October 2010.  In October 2010, respondent’s security aide conducted surveillance on five different mornings at the Westchester Avenue address.  According to the security aide, petitioner and Josiah were not seen leaving the house on any of those mornings, yet Josiah was in school each day.  One morning, Josiah was dropped off at the bus stop in a car registered to petitioner at an Amityville address.  Josiah’s bus driver confirmed that he is usually dropped off by the same car.  The security aide never observed petitioner’s car in the driveway of the Westchester Avenue address and none of the cars that were observed in the driveway were registered to petitioner.

Based on this information, by letter dated October 25, 2010, respondent notified petitioner that Josiah may not be a legal resident of the school district and that a residency meeting was scheduled for November 1, 2010.  Although petitioner attended the residency meeting and asserted that she rents two rooms at the Westchester Avenue address, she provided no lease or other evidence that she resides there.  At the meeting, petitioner stated that Josiah walks from the Westchester Avenue address to the bus stop each morning.  However, petitioner also explained that, on some mornings, she takes him to get breakfast and then drops him off at the bus stop.

By letter dated November 1, 2010, the director informed petitioner that Josiah was not a district resident and would be excluded from respondent’s schools after November 12, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 30, 2010.

Petitioner contends that she is a district resident and Josiah is therefore entitled to attend respondent’s schools.  Respondent asserts that petitioner has failed to demonstrate residency within the district and that its determination was 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 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).

Other than her conclusory assertions, petitioner has produced no evidence to support her claim that she resides on Westchester Avenue, within the district.  While petitioner stated during the November 1, 2010 residency meeting that the cable bill would be placed in her name, she has failed to submit a cable bill or any other documentation to support this assertion, nor has she provided any explanation for the lack of such documentation.  In contrast, respondent has produced surveillance evidence indicating that, on five weekday mornings, petitioner and Josiah did not leave the Westchester Avenue address, although Josiah was present in school on each of those days.  Such evidence is also contrary to petitioner’s statements at the meeting that Josiah either leaves the Westchester Avenue address each morning to walk to the bus stop or to get breakfast with petitioner who then drives him to the bus stop.  Moreover, during the surveillance, the security aide observed Josiah being dropped off at the bus stop in a vehicle registered to petitioner at an Amityville address, outside respondent’s district.  I note that petitioner stated at the residency meeting that the car she drives, which matches the car observed by the aide, is registered to both petitioner and her sister, yet a copy of the car’s registration records submitted by respondent only lists petitioner as the registrant.  Petitioner has submitted no reply or other evidence to explain such inconsistencies.  Based upon the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

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