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Decision No. 16,466

Appeal of ANDRE JEAN-GILLES, on behalf of his daughter, KELLY, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,466

(April 15, 2013)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that his daughter, Kelly, is not a district resident. The appeal must be dismissed.

During the 2011-2012 school year, Kelly was a junior at respondent’s Elmont Memorial High School (“school”). In December 2011, respondent’s investigators observed a car registered to petitioner entering respondent’s district from Queens, New York, apparently transporting a high school student. As a result of this observation, respondent began investigating petitioner’s residency.

On the mornings of January 12, 13, 19, 23, and February 6, 2012, respondent’s investigators conducted surveillance at an in-district address that petitioner had provided to respondent (“in-district address”). Neither petitioner nor Kelly were observed leaving this address on any of these mornings. In contrast, on the mornings of January 13, 19 and 23, and February 1 and 2, 2012, 1  respondent’s investigators conducted surveillance at an out-of-district address in Queens, New York (“Queens address”). Both Kelly and petitioner were observed exiting the house and driving to Kelly’s school. In addition, on the morning of January 27, 2012, Kelly was picked up at the Queens address and driven to school by petitioner.

By letter dated February 7, 2012, the superintendent’s administrative assistant advised petitioner that a determination had been made that Kelly was not a district resident and, therefore, was not entitled to attend its schools. Pursuant to district procedure, petitioner sought review of this decision, and on March 7, 2012, a hearing (“March 7 Hearing”) was held. By decision dated June 13, 2012, an Administrative Review Officer (“ARO”) determined that Kelly was not a district resident, and this appeal ensued. Petitioner’s request for interim relief was denied on July 24, 2012.

Petitioner asserts that he and Kelly reside in respondent’s district and requests that Kelly be allowed to attend respondent’s schools tuition-free. Petitioner contends that he separated from Kelly’s mother in February 2011, and that it is she who lives at the Queens address. Petitioner argues that, while Kelly spends weekends with her mother at the Queens address and that he “at times” also stays there, he has primary custody of Kelly and they both reside at the in-district address.

Respondent denies that petitioner and Kelly reside at the in-district address and argues that the determination that Kelly was not a district resident is supported by the record. Respondent, therefore, contends that its actions were not arbitrary, capricious or unreasonable, and that the ARO’s determination should be upheld.

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 am unable to conclude that petitioner has met his burden of proof. Petitioner’s claims are contradicted by respondent’s surveillance. As noted above, respondent’s investigators observed both petitioner and Kelly leaving the Queens address on multiple weekday mornings. In contrast, neither was observed leaving the in-district address on any morning. These observations are consistent with the determination that both petitioner and Kelly reside at the Queens address.

Presumably in an attempt to explain respondent’s surveillance, petitioner contends that his wife, from whom he allegedly separated in February 2011, lives at the Queens address and that Kelly visits her on weekends. However, these assertions do not explain why Kelly was observed by respondent’s investigators leaving the Queens address on multiple weekday mornings.

Significantly, petitioner – who notably is the record owner of the Queens address - never mentioned any separation from his wife at the March 7 Hearing. In fact, the record reflects that, at the hearing (which occurred well after his alleged February 2011 separation), petitioner testified that his wife actually lived with him at the in-district address. Petitioner makes no attempt to explain this discrepancy, and I decline to credit his allegations. This is especially true where, as here, the record reflects that petitioner testified untruthfully about at least one other material issue at the March 7 Hearing.  2

Finally, though not clearly raised by petitioner, to the extent that he is claiming that his ownership of the in-district address entitles him to the relief sought, such claim lacks merit. 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).

On this record, petitioner has not established either his own or Kelly’s physical presence in respondent’s district. Accordingly, I will not disturb respondent’s determination that Kelly is not a district resident.

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

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of Kelly at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (see e.g., Appeal of Bowser, 51 Ed Dept Rep, Decision No. 16,432).





[1]   The record reflects that respondent also conducted surveillance at the Queens address on March 6 and 7, 2012. On both mornings, petitioner and Kelly were observed leaving the Queens address. These observations, however, post-dated the district’s original residency determination.


[2]   The record reflects that at the March 7 Hearing, petitioner twice testified that on the morning of the hearing, he drove Kelly from the in-district address to school. However, when petitioner was confronted with surveillance evidence showing that he and Kelly actually left from the Queens address, petitioner recanted his testimony.