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Decision No. 16,403

Appeal of L. B.-S., on behalf of her children C.S., D.S. and E.S, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 16,403

(August 30, 2012)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of Board of Education of the East Islip Union Free School District (“respondent”) that her children are not district residents entitled to attend its schools tuition-free.  The appeal must be dismissed.

During the 2011-2012 school year, petitioner’s children attended school in respondent’s district based on petitioner’s assertion that she resides with her mother in Islip Terrace, New York, within the district (“Islip Terrace address”).  The home in Islip Terrace is owned by petitioner’s mother.  Prior to that time, petitioner resided with her husband and children outside the district in Islip, New York (“Islip address”).

In November 2011, respondent initiated an investigation of petitioner’s residency.  The investigation included surveillance of the Islip address on one day in November 2011 and on eight days from January 27, 2012 through March 12, 2012.  On each day, the investigator observed petitioner and her children exiting the Islip address in the early morning hours, and the children were driven to school in respondent’s district.  Additionally, two vehicles - one registered to petitioner at the in-district address and one registered to her husband at the out-of-district address - were observed at the Islip address at those times.  Surveillance was conducted on February 7, 2012 in the early morning hours at the Islip Terrace address.  Neither petitioner nor her children were observed, and only the grandmother’s car was present.

By letter dated March 19, 2012, the assistant superintendent advised petitioner that she had determined that petitioner’s children were not district residents entitled to attend its schools.  The assistant superintendent further advised petitioner of the opportunity to present evidence regarding her residency and that, if she did not do so, the children would be excluded from school on April 4, 2012.

Finally, the letter stated that if a final determination was made that her children were not district residents, petitioner could appeal the decision to the Commissioner of Education pursuant to Education Law §310.   On March 26, 2012, petitioner attended a residency meeting and, subsequently, provided the district with various documentation.  The record indicates that petitioner’s children were excluded from school in respondent’s district on April 4, 2012.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 18, 2012.

Petitioner asserts that she and her children reside at the Islip Terrace address with her mother in respondent’s district.   She claims that she and her husband are having marital difficulties and admits that she and the children stay at the Islip address as the couple works out their difficulties.  She asserts that they are going to sell their house in Islip and that her husband will come to live in the district at the Islip Terrace address.   

Respondent contends that petitioner is not a district resident and that its residency determination was reasonable, especially in view of the surveillance.

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450). 

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

On this record, petitioner failed to establish that she and her children reside in respondent’s district.  She admits that she continues to stay at the Islip address and was observed to be physically present there on nine different dates.  Although petitioner submits bills, bank account statements and a driver’s license listing the Islip Terrace address, she presents no lease, rent receipts or other evidence demonstrating residency at that address.  Merely using her mother’s Islip Terrace address on the submitted documentation does not establish petitioner’s residency, particularly in view of the surveillance and her admissions.  Nor does petitioner provide any sworn statement from her mother or husband in support of her residency claims.

I note further that, although petitioner states that she and her husband intend to sell their out-of-district home and that her husband will also move to the Islip Terrace address, the Islip property was only listed for sale in March 2012, after the residency issue arose.  Moreover, at the time of this appeal, there was no indication that the house had been sold.  It appears that petitioner intends to remain with her husband and has not abandoned the marital residence in Islip, outside the district.   On this record, I find that petitioner failed to meet her burden of proof and cannot conclude that respondent’s residency determination is arbitrary, capricious or unreasonable.

Although I am constrained to dismiss the appeal, I remind respondent of its obligation to fully comply with §100.2(y) of the Commissioner’s regulations.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

Respondent provided petitioner with an opportunity to meet and provide information regarding her residency and also informed her in its March 19, 2012 letter of her right to appeal an adverse residency determination to the Commissioner of Education.  However, there is no indication that respondent provided a final, written determination setting forth its decision and reasons therefor.  Nevertheless, petitioner has fully addressed all respondent’s claims and assertions regarding her residency and, thus, I cannot conclude in this instance that petitioner was prejudiced by respondent’s omission.  However, respondent must ensure that it fully complies with all the requirements of §100.2(y) in the future.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for her children’s admission to respondent’s district at any time, should circumstances change, and to submit information and documentation for respondent’s consideration in accordance with the procedures set forth in §100.2(y) of the Commissioner’s regulations.