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Decision No. 16,260

Appeal of YVROSE ARMAND, on behalf of her children RODRIGUE and RAQUEL LIBERTE, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16260

(July 19, 2011)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her children, Rodrigue and Raquel, are not district residents.  The appeal must be dismissed.

In December 2009, petitioner registered her children for high school in the district.  She submitted as proof of residency a copy of a lease for an apartment on Knightsbridge Road (“Knightsbridge”) in Great Neck, within the district, and a notarized Certification of Residency with that address.  Although she also presented a driver’s license which listed an address on 237th Street in Elmont (“Elmont”), outside the district, petitioner’s children were admitted to the district’s schools.  Rodrigue was admitted to Great Neck South High School (“South”), the high school within the attendance zone for Knightsbridge.  However, pursuant to petitioner’s request, the district granted a variance for Raquel to attend Great Neck North High School (“North”).

The district’s registrar (“registrar”) avers that on December 13, 2010, North’s assistant principal informed her that several North students had reported that Raquel lived in Elmont with her grandmother.  After a subsequent review of the district’s records revealed that Raquel’s brother was attending South, the registrar initiated an investigation of the family’s residency.

Surveillance was conducted on eight days from December 15, 2010 to January 19, 2011.  The surveillance revealed that on five weekday mornings, Raquel was observed exiting the house in Elmont and entering a car which had arrived to pick her up.  The car was registered to petitioner at the Elmont address.  On one of those five mornings, investigators followed petitioner and Raquel from Elmont to North and observed Raquel enter the school.  On three of those same mornings, petitioner was earlier observed exiting a house on Ashley Drive in Valley Stream (“Valley Stream”), outside the district, entering her car, and driving away.  On a sixth morning, Raquel and a different female adult were observed exiting Elmont and entering a different vehicle; Raquel was reportedly not in school that day.  Investigators also observed petitioner’s car at Valley Stream at 10 p.m. on a Friday.  On three weekday mornings, two of which were mornings that Raquel was observed leaving Elmont, Rodrigue was observed exiting the Knightsbridge address alone and boarding a bus.  Neither petitioner nor her car was ever observed at Knightsbridge.

The investigators also determined from public records that petitioner owned the house in Elmont and the utilities there were in her name, that she had previously owned the house in Valley Stream, that the latter was currently owned by the father of petitioner’s six-year-old child, and that Elmont was her address for voter registration purposes.

By letter dated January 19, 2011, the registrar notified petitioner that the district had information that she and her children were not district residents, and offered her an opportunity to submit information regarding her residency prior to January 28, 2011, after which the children would be excluded from the district’s schools.  The letter also included a bill for $24,718 for tuition for September 2010 to January 2011.

On January 21, 2011, petitioner telephoned the registrar and a residency hearing was scheduled for January 26, 2011.  The registrar avers that when she informed petitioner both on the telephone and at the hearing about the district’s evidence that petitioner was residing in Valley Stream and driving Raquel to school from Elmont, the petitioner claimed that she went “back and forth.”  The registrar also avers that petitioner admitted that Raquel lived in Elmont with petitioner’s mother so that her mother could supervise Raquel and Raquel could help her grandmother; admitted that she had unfinished business in Valley Stream, where her ex-husband lived with her youngest son who attended school there; and stated that a family friend resided at Knightsbridge with petitioner’s son.

By letter dated January 26, 2011, the registrar notified petitioner of her determination that her children would be excluded from the district’s schools at the end of the semester on January 28, 2011.  On February 3, 2011, petitioner appealed to respondent, which upheld the registrar’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 28, 2011.

Petitioner asserts that she resides at Knightsbridge with both children, that she has consistently paid rent and bills for the apartment there, and that the family has immersed itself in the community.  She contends that the district failed to provide her with any proof that she was not a district resident.

Respondent contends that the petition fails to state a claim upon which relief may be granted and that petitioner does not reside in the district but rather resides in Valley Stream with her six-year-old son and his father.  It asserts that Raquel and Rodrigue are not emancipated and are presumed to live with petitioner, who has merely used the Knightsbridge address to take advantage of the district’s schools.  Respondent further asserts that it fully complied with the law and procedure, that its decision was based on substantial credible evidence, and that the decision was neither arbitrary nor 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).

The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

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).

In her February 3, 2011 appeal to respondent and with her petition, petitioner submitted an affidavit wherein she stated that she lived on Knightsbridge, but admitted that she and Raquel spent some overnights in Elmont to care for her elderly mother, who resides there, is homebound and requires increasing assistance.  She also admitted visiting her youngest son in Valley Stream, but with only occasional late-night and overnight visits to “foster a parental and sibling bond.”  Petitioner claimed that these family problems with her mother and son led to the observances in the surveillance report.  Petitioner averred that she did not know that these visits would disrupt her children’s education and that she would make adjustments.

She also submitted a copy of a two-year lease for Knightsbridge for a term from December 15, 2009 to November 30, 2011; copies of rent bills for six months from January to July 2010 and of canceled checks from the initial rent deposit in December 2009 and from September 2010 to January 2011; and utility, telephone, and credit card statements addressed to her there.  In addition, she submitted an unofficial certification of registration dated January 31, 2011 from Nassau County that her address for voting is on Knightsbridge, five unnotarized letters purporting to support her residency there, and a telephone bill for Elmont.

However, such evidence fails to resolve the discrepancy between her contention that she resides on Knightsbridge and the surveillance report, which clearly demonstrated a lack of any presence there and a regular pattern of her presence at Valley Stream in the early mornings and her traveling to Elmont to pick up Raquel to transport her to school.  Notably, petitioner presented no new evidence since the hearing or a reply to rebut respondent’s surveillance evidence.  Although Rodrigue was observed at Knightsbridge, petitioner, her car and her daughter were never seen there.  Indeed, no adult was ever observed there.  As respondent noted, petitioner’s initial claim at the hearing that a family friend resided there with Rodrigue was not credible because the friend owned her own house in the district and her own children attended the district’s schools.  Similarly unpersuasive is the unnotarized letter without letterhead from this friend, dated January 31, 2011, subsequent to the district’s residency notification, merely stating that she had known petitioner since childhood and that petitioner rented an apartment in the district.

In addition, little of petitioner’s other evidence is dispositive: the bills and letters are unofficial because they did not require official identification to obtain, the letters are not notarized, only one letter is on letterhead, and, to the extent the authors of the letters may have observed petitioner there, they fail to establish full-time residency; the voter certification postdates the district’s residency inquiry; and the rent checks show that petitioner paid the rent for Knightsbridge but do not establish her physical presence there in light of the surveillance.

Petitioner’s reliance on Appeal of Dortch (45 Ed Dept Rep 138, Decision No. 15,283) is also misplaced.  In that appeal, which was sustained, petitioner had provided some similar documentation, such as utility bills.  However, in sharp contrast to the instant appeal, respondent in Dortch provided no contrary evidence and had failed to conduct any surveillance placing petitioner outside the district.

Based on the record before me, petitioner has failed to meet her burden of proof that she resides in the district.  Accordingly, I cannot conclude that respondent acted arbitrarily or capriciously in determining that her children are not district residents.

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.