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Decision No. 17,216

Appeal of C.O., on behalf of her daughter I.O., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,216

(October 12, 2017)

Ingerman Smith, LLP, attorneys for respondent, Susan Gibson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter, I.O. ("the student"), is not a district resident.  The appeal must be dismissed.

On August 28, 2014, petitioner completed an enrollment questionnaire for purposes of enrolling her daughter in respondent’s district.  In the enrollment questionnaire, petitioner indicated that, as of that date, petitioner and the student resided in Baldwin, New York, within respondent's district (the “in-district address”).  Petitioner listed an address in Freeport, New York (“Freeport address” or “out-of-district address”) as her and the student's former address.  

In the fall of the 2014-2015 school year, the student was chronically late for school.  Respondent subsequently commenced a residency investigation.  During the course of the investigation, the district hired a private investigator to conduct surveillance of both the in-district and out-of- district addresses.

By letter dated October 3, respondent's director of pupil services ("director") notified petitioner that the district had questions regarding the student’s residency status. On October 9, petitioner, the director and respondent’s registrar met to discuss the student's residency.  At the October 9 meeting, when queried as to why the student had not been observed at the in-district address, petitioner stated that she and the student had stayed at the student’s grandmother’s house (i.e. the out-of-district address) from August to September because the grandmother had been out of town and did not want the house left vacant during that time. 

By letter dated October 14, the director notified petitioner of the district's determination that petitioner and the student were not district residents.  This appeal ensued.  Petitioner's request for interim relief was denied on October 30, 2014.

Petitioner seeks a determination that her daughter is a resident of respondent’s district and is entitled to attend respondent’s schools tuition-free.

Respondent contends that petitioner has failed to state a claim upon which relief can be granted.  Respondent further asserts that its determination to exclude the student was supported by surveillance evidence and that petitioner failed to prove that she and the student reside in respondent’s district.

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).

In support of her daughter’s residency within the district, petitioner submits a bank statement and a driving abstract which was printed on October 16, 2014.  In response, respondent relies upon surveillance evidence which demonstrates that, on eight weekday mornings upon which surveillance was conducted at the in-district address in September and October of that year, the student was not observed at the in-district address and petitioner was observed once.  In addition, the district surveilled the out-of-district address on 13 weekday mornings in September and October and petitioner and the student were observed at the out-of-district address together on at least five occasions.

On this record, petitioner has failed to meet her burden of proof or refute the surveillance evidence submitted by respondent.  Specifically, the bank statement and driving abstract submitted by petitioner, while entitled to some weight, are not sufficient to rebut or explain respondent’s surveillance evidence.

While petitioner initially argued at the October 9 residency meeting that she and the student stayed at the out-of-district address while the student’s grandmother was away, she does not pursue this argument on appeal.  But even assuming, arguendo, that petitioner made this argument herein, I agree with respondent that there are inconsistencies with petitioner’s account, and I would not find that it rebuts respondent’s evidence.  In addition, I note that petitioner did not submit a reply explaining respondent’s surveillance evidence.

 Therefore, based on the record before me, I find that petitioner has failed to establish actual physical presence in the district.  Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on her daughter’s behalf at any time, should circumstances change, and may present for respondent’s consideration any new information bearing on the question of residence.