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Decision No. 16,279

Appeal of BEVERLY ROY, on behalf of her sons Jacob and Gabriel, from action of the Board of Education of the Jamesville-DeWitt Central School District regarding attendance zones.

Decision No. 16,279

(August 8, 2011)

Longstreet & Berry, LLP, attorneys for petitioner, Martha L. Berry, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Jamesville-DeWitt Central School District (“respondent”) that her sons, Jacob and Gabriel, may not attend school outside the attendance zone in which she owns a home.  The appeal must be sustained.

Respondent’s district has three elementary schools in three different attendance zones: the Tecumseh Elementary School (“Tecumseh”), the Moses DeWitt Elementary School (“Moses DeWitt”) and the Jamesville Elementary School (“Jamesville”).

Under respondent’s policy #7140, students who move within the district will be expected to transfer to the designated school within the attendance zone of their new residence unless they move within 60 school days from the end of the school year.

Petitioner previously owned a home in the Tecumseh attendance zone but sold that home.  On October 21, 2008, petitioner purchased a new residence in the Moses DeWitt attendance zone.  In August 2009, petitioner entered into a one-year lease commencing on October 1, 2009 for an apartment in the Tecumseh attendance zone.  Petitioner asserts that she leases and “maintains a residence” at the apartment so that her sons could continue to attend school at Tecumseh.

During the course of the 2009-2010 school year, the superintendent was informed that petitioner’s two children were attending school at Tecumseh but were residing in the Moses DeWitt attendance zone.  As a result, the superintendent arranged for surveillance of the Moses DeWitt residence.  The investigator conducted surveillance on one weekday morning, at which time he observed petitioner’s sister driving Jacob and Gabriel from the Moses DeWitt residence to school at Tecumseh.  The investigator also produced records indicating that petitioner’s car was registered to her at the Moses DeWitt address.

By letter dated February 12, 2010, the superintendent informed petitioner that her sons would be transferred to Moses DeWitt effective February 24, 2010.  By letter dated February 12, 2010, petitioner advised the superintendent that she maintained an apartment within the Tecumseh attendance zone and submitted evidence of her residency therein.

By letter dated February 16, 2010, the superintendent acknowledged that petitioner leased an apartment in the Tecumseh attendance zone, but indicated that her sons were deemed to reside at petitioner’s home in the Moses DeWitt attendance zone.

On February 22, 2010, petitioner appealed the superintendent’s decision.  By letter dated February 23, 2010, respondent informed petitioner that it could not make an exception to policy #7140 and that her sons would be assigned to Moses DeWitt effective March 1, 2010.

Petitioner appealed respondent’s decision in an Article 78 proceeding to the New York State Supreme Court, Onondaga County, which dismissed the appeal for failure to exhaust all administrative remedies.  This appeal ensued.  Petitioner’s request for interim relief was granted on July 26, 2010.

Petitioner alleges that she is a neonatal physician who works many nights and long shifts and that, as a result, her children sometimes stay with her sister, their primary care provider, who lives at the residence in the Moses DeWitt attendance zone.  Petitioner maintains that, depending on her work schedule, she resides with her sons at the apartment in the Tecumseh attendance zone several nights a week.  She also maintains that the apartment is furnished, lived in, and that she and her children receive mail there.

Petitioner contends that she did not timely bring this appeal because she initially sought relief pursuant to Article 78 of the New York Civil Practice Law and Rules.  Petitioner alleges that policy #7140 is inapplicable in this case because she maintains two residences within the district.  Finally, petitioner maintains that respondent’s decision to require her sons to attend Moses DeWitt is arbitrary and capricious.

Respondent denies that its actions were arbitrary and capricious.

Pursuant to Education Law §§1804(1), 1709(3) and (33), a board of education of a central school district has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Board of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of P.S., 39 Ed Dept Rep 806, Decision No. 14,387; Appeal of Ibrahim, 39 id. 155, Decision No. 14,200).  In the assignment of pupils to schools, a board of education has broad discretion (Matter of Addabbo, et al. v. Donovan, et al., 22 AD2d 383; affd 16 NY2d 619, certden 382 US 905; Appeal of the Lancaster Parent Alliance, 38 Ed Dept Rep 356, Decision No. 14,053).

Respondent’s policy requires students who move to a different attendance zone during the school year to transfer to the attendance zone of their new residence, unless such move occurs within 60 days of the end of the school year.  Because respondent’s policy regarding the assignment of students to schools is based on residency, the traditional residency considerations applied pursuant to Education Law §3202 are also applicable in this case.

Specifically, 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).

Moreover, 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 support of her petition, petitioner provided a lease agreement for the Tecumseh apartment and copies of mail, a bank statement and a power bill listing the Tecumseh address.  She also produced photographs to establish that the apartment contains furniture, bedding, toys and clothing.  The fact that petitioner and her children sometimes spend time at the home in the Moses DeWitt attendance zone is not dispositive in light of petitioner’s explanation that her sister, who resides there, is the primary care provider for Jacob and Gabriel when petitioner is on call, at work or working nights.

To support its position, respondent relies on surveillance evidence, which took place on one isolated occasion.  Such surveillance evidence is inconclusive as to the question of petitioner’s residency and is also consistent with petitioner’s explanation of her sons’ living arrangement.  Respondent also produced evidence that petitioner’s car is registered to the Moses DeWitt address.  However, such evidence is not sufficient to establish that petitioner does not reside at the Tecumseh apartment.

Accordingly, based on the totality of the circumstances of this case, I find that petitioner carried her burden of proving that respondent’s determination is arbitrary and capricious (seee.g.Appeal of Monteiro, 35 Ed Dept Rep 346, Decision No. 13,565).

In light of this determination, I need not address the parties’ remaining contentions.


IT IS ORDERED that respondent allow Jacob and Gabriel Roy to attend school in the Tecumseh attendance zone.