Appeal of DENISE ACREE, on behalf of her son CORBIN, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,934

(July 28, 2016)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that her son is not a district resident. The appeal must be dismissed.

Petitioner’s son, Corbin, has been attending high school within respondent’s district since 2013.  Questions regarding his residency arose in February 2016 when the district’s superintendent received an anonymous letter expressing concerns that parents from Yonkers and the Bronx were using addresses within the City of New Rochelle to enroll their children in the district’s schools to play on its football and basketball teams.  Petitioner’s son was one of the students whose residency was questioned in this letter.

Based on this information, respondent commenced a residency investigation and a district attendance teacher (“teacher”) conducted surveillance at petitioner’s alleged in-district address.  The teacher observed this address from 7:00 a.m. to 8:30 a.m. on five consecutive school days (February 22, 2016 - February 26, 2016).  Petitioner’s son was not observed leaving this address on any of these days, yet he was present in school.

Thereafter, the teacher visited the out-of-district address in the Bronx that petitioner listed as her previous residence (the “Bronx residence”).  The teacher spoke with several residents who stated that petitioner’s son still resided there and that many children who live there go to school in the New Rochelle City School District to play sports.

By letter dated March 15, 2016, the director of pupil services (“director”) informed petitioner that the district had received information that she and her son did not reside within the district and that petitioner had until March 31, 2016 to submit proof of their district residency.

In response, petitioner submitted a letter claiming that, in the summer of 2013, she and her son moved in with her boyfriend, who resides within the district. She further stated that her boyfriend “pays all the bills” because she does not work.  Attached to her letter was a “Home Visit” form in which petitioner was supposed to list the dates and times that home visits could be conducted.  Although petitioner listed her boyfriend’s address on the form, she failed to list any dates and times that this address could be visited to verify her residency.

On March 30, 2016, petitioner and her boyfriend met with the director and teacher to further discuss the matter.  Petitioner’s boyfriend offered bills and documents in his name - but these items only substantiated that he resided within the district.  Petitioner failed to provide any evidence that she and her son actually resided with her boyfriend within the district.

Thereafter, the director initiated another round of surveillance at petitioner’s alleged in-district residence.  On five consecutive school days in the first week of April (April 4, 2016 – April 8, 2016) and twice the following week (April 12, 2016 and April 13, 2016), the teacher again observed petitioner’s alleged in-district residence between 7:00 a.m. and 8:30 a.m.  Petitioner’s son was not observed leaving this address on any of those days, yet he was present in school.  In addition, the director reviewed petitioner’s son’s “Immunization Report” and a letter he received from a doctor clearing him to play sports.  The letters listed her son’s address as the out-of-district residence.

Based upon the results of the investigation and petitioner’s failure to produce sufficient proof demonstrating residency, by letter dated April 15, 2016, the director notified petitioner of the district’s determination that she was not a district resident and, therefore, her son was not eligible to attend respondent’s schools.  The letter further advised petitioner that her son would be excluded after May 9, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 20, 2016.

Petitioner asserts that she and her son reside with her boyfriend at his residence within the district and, therefore, her son is entitled to attend respondent’s schools without the payment of tuition.

Respondent contends that the petition must be dismissed because petitioner has not met her burden of proof and has not established that she and her son reside in respondent’s school district. 

The appeal must be dismissed.  Education Law §3202(1) provides, in pertinent part, as follows:

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 this record, petitioner has failed to sustain her burden of proof.  During respondent’s residency investigation, petitioner submitted no proof to establish her residency in the district or any explanation of respondent’s surveillance information.  In support of her appeal, petitioner now submits a copy of her driver’s license, two recent bank statements, and a letter from the Social Security Administration dated April 26, 2016 that list her boyfriend’s in-district address.  These documents alone, however, are not dispositive of petitioner’s residency (Appeal of Capozzi, 51 Ed Dept Rep, Decision No. 16,305; Appeal of Peacock, 46 id. 120, Decision No. 15,460). 

In addition, petitioner has provided a letter explaining that she and her son occasionally spend the night at her mother’s for reasons that are “personal and private.”  She also submits unsworn letters from her boyfriend, her mother, and her mother’s neighbor, stating that petitioner no longer resides at the out-of-district address and resides at the boyfriend’s in-district address.  These letters, however, do not establish petitioner’s actual physical presence in respondent’s district, particularly when weighed against the district’s investigation, which included a total of 12 surveillances in the months of February and April of 2016 (see Appeal of Correa, 50 Ed Dept Rep, Decision No. 16,154).  On each date, many of them consecutive, neither petitioner nor her son were observed leaving the alleged in-district residence in the early morning, yet the student was present in school.  Petitioner has not provided any explanation – either at the district’s residency investigation or in this appeal - addressing why they were not present at the in-district residence on these dates.  Although she states, generally, that she goes to her mother’s each day to assist her, such general explanation is insufficient to rebut the specific surveillance evidence presented.  Moreover, the other letters petitioner submitted in support of her claim conflict with what the teacher was told by neighbors during the residency investigation.  As noted, the documents petitioner submits listing the in-district address do not establish that she is actually physically present in respondent’s district. 

Therefore, on the record before me, petitioner has failed to satisfy her burden of proof that she and her son are physically present in respondent’s district and are district residents.  Accordingly, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the school district for her son’s admission at any time (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180; Appeal of Smith, 39 id. 28, Decision No. 14,163) and to present any new information for respondent's consideration.

THE APPEAL IS DISMISSED.

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