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Decision No. 16,981

Appeal of T.R., on behalf of his daughter L.R., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,981

(October 24, 2016)

Ingerman Smith, L.L.P., attorneys for respondents, Kerrin A. Bowers, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Baldwin Union Free School District (“respondent”) that his daughter, L.R. (“the student”), is not a district resident.  The appeal must be dismissed.

Prior to enrollment in respondent’s schools, petitioner submitted a registration questionnaire (“questionnaire”) to the district indicating that his daughter lived with him within the district (the “in-district address”).  The questionnaire also stated that petitioner and the student’s mother were divorced and that the mother lived out of State.  Petitioner’s sister, the student’s aunt, was listed as an emergency contact at the same address as petitioner and the student.  Thereafter, L.R. began attending the district’s schools. 

Subsequently, the district’s registrar (“registrar”) received a residency questionnaire for another student, unrelated to L.R., who also claimed to live at the in-district address.  The district then began an investigation into L.R.’s residency.  The registrar obtained a copy of petitioner’s credit “header” report, which listed two addresses, one in Georgia and one within New York State, but outside of respondent’s district.  The registrar also obtained L.R.’s aunt’s credit “header” report, which listed a current address in Freeport, New York, outside of respondent’s district (the “Freeport address”).  

The district’s investigator conducted surveillance at the in-district address on five mornings in October and November 2013.  The student was not observed at the in-district address on any of those mornings.  Surveillance was also conducted at the Freeport address on eight mornings in November 2013.  The surveillance revealed that the first floor of the Freeport address was occupied by a daycare center.  L.R. was observed leaving the Freeport address in the early morning on five of the eight surveillance dates.  During the other three dates, the student was not observed leaving the Freeport address; however, a car with a Georgia license plate was parked in the driveway. 

By letter dated November 13, the district’s director of pupil personnel services (“director”) subsequently advised petitioner that the district had reason to believe L.R. did not reside within the district.  The director offered to meet with petitioner to further discuss the matter.  Petitioner and the director met on November 20, and the director presented petitioner with the surveillance evidence.  In response, petitioner stated that L.R. stays with her aunt at the Freeport address when he works at night or travels for work, and that he, too, stays at his sister’s house on occasion.  Petitioner further stated that L.R. sleeps at her aunt’s house (the Freeport address) two to three days per week.  Petitioner additionally stated that he and the student are from Georgia.

After this meeting, the district conducted additional surveillance of the in-district address over two consecutive days.  No individuals were observed at that residence on either day.  On those same two days, the investigator surveilled the Freeport address and observed L.R. leaving the home and entering a van on both dates.  Contemporaneous with these events, petitioner informed the registrar and director that L.R. would be permanently residing at the in-district address as of November 25, 2013.  Additional surveillance was then conducted between 6:30 a.m. and 8:40 a.m. at the in-district address on November 26 and 27.  No vehicles were observed at the in-district address, nor were any individuals seen entering or exiting the residence.  A second letter was sent to petitioner from respondent, advising him that because the district was unable to substantiate that L.R. resided within the district, L.R. was not eligible to receive educational services in the district for the 2013-2014 school year, effective November 27, 2013.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that L.R. has resided with him in the district at all times relevant to this appeal.  He further contends that L.R. intends to reside with him “for the duration of the school year.”  Petitioner claims that he and L.R.’s mother are divorced, and “from time to time,” L.R. spends the night with her aunt at the Freeport address because petitioner “often” has to work at night or is out of town.  Petitioner also asserts that L.R. often goes to her aunt’s daycare at the Freeport address.  Petitioner claims, however, that L.R. does not live at the Freeport address.  Petitioner requests that L.R. be admitted to respondent’s district. 

Respondent contends that petitioner did not meet his burden to show that its residency determination was arbitrary and capricious.  Specifically, respondent asserts that petitioner has not refuted the surveillance evidence which showed that neither petitioner nor L.R. reside within the district.  Additionally, respondent maintains that petitioner’s explanations regarding why L.R. was not seen at the in-district address are not persuasive because they are contradicted by the surveillance evidence.

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).

In this case, the record does not support petitioner’s contention that respondent’s residency decision was arbitrary and capricious.  As documentary evidence to support his claim, petitioner submits only a letter from Long Island Power Authority dated November 19, 2013 confirming that electric and gas accounts would be established in petitioner’s name at the in-district address as of November 20, 2013.  I note that this letter post-dates respondent’s November 13 letter informing petitioner of its residency concerns.

As detailed above, the surveillance conducted by respondent does not show that petitioner and L.R. reside at the in-district address, despite petitioner’s claims to the contrary.  L.R. was not observed at the in-district address on any of the five days of surveillance.  By contrast, she was observed leaving the Freeport address on seven of ten days of surveillance.  Petitioner has submitted no reply or other evidence to refute this surveillance evidence (cf. Appeal of J.A., 54 Ed Dept Rep, Decision No. 16,655).  Specifically, his claim that L.R. spends two to three nights per week at the Freeport address while he is working at night, or out of town, does not explain the surveillance evidence described above.  Petitioner also fails to explain why, on four surveillance days, a car bearing Georgia license plates was seen at the Freeport address, which suggests petitioner and/or L.R. were present at the Freeport address on these dates.  I further note that petitioner represented that L.R. would permanently reside with him as of November 25, 2013, suggesting that she had not done so prior to that date.  In response to this contention, the district conducted surveillance of the in-district residence on November 26 and 27 and neither petitioner nor the student were observed at the in-district address. 

Based on the above, I do not find that the district’s residency determination was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of L.R. at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (see Appeal of Williams, 50 Ed Dept Rep, Decision No. 16,302; Appeal of Braxton-Strohman, 50 id., Decision No. 16,183).