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Decision No. 16,273

Appeal of MICHELLE HUNT, on behalf of her daughter KENYATTA HUNT, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 16,273

(July 29, 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 Malverne Union Free School District (“respondent”) that her daughter Kenyatta is not a district resident.  The appeal must be dismissed.

In September 2010, Kenyatta was enrolled in respondent’s high school based on petitioner’s representation that she and Kenyatta lived with her aunt in Malverne, within respondent’s district (“Malverne residence”).  On or about September 15, 2010, a district investigator observed Kenyatta walk to respondent’s high school after exiting a public bus (“bus”) serving communities outside respondent’s district including Rockville Centre, where petitioner’s mother resides (“Rockville Centre residence”).

Thereafter, respondent commenced a residency investigation, which included surveillance of the Rockville Centre residence between September 15 and 30, 2010.  On nine weekday mornings during this period, Kenyatta was observed leaving the Rockville Centre address and/or boarding the bus, or departing the bus and walking to respondent’s high school.  Petitioner’s car was observed at the Rockville Centre address at 6:24 a.m. on one occasion.  The investigation also revealed that petitioner’s driver’s license and automobile registration listed an address in the Bronx, outside respondent’s district.

By letter dated September 30, 2010, respondent’s director of pupil personnel services (“director”) informed petitioner that she was not a district resident and that Kenyatta would therefore be excluded from its schools effective October 14, 2010.

On October 9, 2010, the district’s registrar received an anonymous telephone call indicating that Kenyatta had recently moved from South Carolina to the Rockville Centre residence, where petitioner had lived with her mother for approximately two years.  The caller also reported that Kenyatta was staying at the Malverne residence because she was aware that respondent was investigating her residency.

Following a meeting with petitioner on October 12, 2010, during which petitioner provided no additional evidence to support her residency claim, the director determined that petitioner and Kenyatta were not district residents.  By letter dated October 12, 2010, petitioner appealed this determination to the board, which denied such appeal by letter dated November 12, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 7, 2010.

Petitioner asserts that, due to her work schedule, Kenyatta occasionally stays with petitioner’s mother at the Rockville Centre residence.  However, petitioner maintains that she and Kenyatta both reside at the Malverne address, and as such, Kenyatta is entitled to attend school in respondent’s district. 

Respondent contends that petitioner is not a district resident and has failed to demonstrate a clear legal right to the relief requested.  Respondent maintains that it acted lawfully in excluding Kenyatta from attendance in its schools. 

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).

On the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.  In support of her claim, petitioner submits a landlord’s affidavit signed by her aunt and a renter’s affidavit.  However, 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).

Petitioner also submits envelopes addressed to her at the in-district address from Malverne High School and a bank, as well as Kenyatta’s report card, honor roll certificate and attendance sheet and student contact information.  However, such documents do not establish petitioner’s physical presence and intent to remain in the district, particularly in light of respondent’s surveillance evidence.

Together with its verified answer, respondent has submitted evidence of additional surveillance conducted between October 20 and November 23, 2010 which generally corroborates its residency determination.  While such additional evidence is contained in a report dated November 23, 2010 – after respondent’s November 12, 2010 residency determination – I note that petitioner has neither objected to such evidence, nor has she submitted a reply or other evidence to explain or refute such evidence.

Based on this record, petitioner has failed to establish that she resides in the district.  Accordingly, I cannot conclude that respondent’s determination was arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner has the right to reapply to the district for her daughter’s admission if circumstances change and to present any new information for the district’s consideration (seeAppeal of Clancy, 50 Ed Dept Rep, Decision No. 16,150).