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Decision No. 17,221

Appeal of NOEMI RIVERA, on behalf of her son ANDREW, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 17,221

(October 18, 2017)

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

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her son, Andrew (“the student”), is not a district resident and is not entitled to attend the district’s schools tuition free.  The appeal must be dismissed.

During the 2015-2016 school year, the student attended school in respondent’s district.  Petitioner listed an address located within the respondent’s district (“in-district address”) on the registration questionnaire when enrolling the student in respondent’s district for the 2015-2016 school year.

Respondent asserts that on or around May 31, 2016, its staff received information from the student indicating that the family had moved and noticed that the student was always being dropped off and picked up from school, despite district transportation being available to the student.

As a result, the district commenced a residency investigation.  The district searched records from the Department of Motor Vehicles (“DMV”), which indicated that petitioner had several vehicles registered under her name, including a white 2006 Toyota registered to the in-district address and another vehicle registered to a Central Islip address, located out of the district.

The district also conducted surveillance on the in-district address as part of its investigation.  The surveillance was conducted by respondent’s director of student services and central registration (“director”) on the corner of the street on which the in-district address was located, which was a dead-end street with eight houses, and a nearby street, between 8:00 a.m. and 8:30 a.m. on seven different weekday mornings in June 2016.  The director did not observe petitioner, the student or the vehicle registered to the in-district address during any of those surveillance dates.  Additional surveillance was conducted by the director at approximately 7:00 p.m. on four weeknights in June 2016 during which petitioner, the student and petitioner’s vehicle registered to the in-district address were not detected by the director.

In June 2016, respondent notified petitioner that the student was no longer considered a resident of the district and that his last day of attendance would be June 24, 2016.

At the request of petitioner, a residency meeting was held on June 20, 2016, which was attended by petitioner, the director, and the district’s technology administrator.  The director avers that during the residency meeting, petitioner claimed that her mother had previously owned the property located at the in-district address and property at a Central Islip address.  However, petitioner indicated that her mother sold the property at the in-district address sometime during the 2015-2016 school year and that petitioner moved directly across the street, which was also located within the district (“across-the-street in-district address”).  Petitioner further stated that the owners of the across-the-street in-district address were finishing an apartment for her and that she had paid no utility or cable bills at the across-the-street in-district address.  She further denied owning any vehicles registered to the Central Islip address.  In addition, petitioner admitted that the student was dropped off and picked up from school on a daily basis during the 2015-2016 school year.  Lastly, petitioner admitted that she spent some time at the residence of her fiancé, which is located outside the district, but claimed that she does not live there.

Following the residency meeting, the district conducted additional surveillance at the same location as the previous surveillance.  This surveillance took place on three weekdays in June between 8:00 a.m. and 8:30 a.m.  Petitioner, the student and the vehicle registered to the in-district address were not detected during those surveillance efforts.

By letter dated July 8, 2016, respondent sent another exclusion letter to petitioner communicating it findings from the June 20, 2016 residency meeting and again indicating that the student was not a district resident.  This appeal ensued.   Petitioner’s request for interim relief was denied on August 29, 2016.

Petitioner requests a determination that the student is a resident of the district and is entitled to attend its schools without the payment of tuition.

Respondent asserts that the petition fails to state a claim and that petitioner and the student resided outside of respondent’s district during the 2015-2016 school year. 

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, I find that the petitioner has not met her burden of proving that she and her son reside in the district.  In support of the petition, petitioner submitted a bank statement, an earnings statement, a letter from the student’s pediatrician and a copy of her driver’s license, listing her address as the across-the-street in-district address.  She also provides a landlord affidavit dated July 29, 2016, which lists April 5, 2016 as the starting date for her lease at the across-the-street in-district address. However, the landlord affidavit contains no end date for the lease. 

In determining that the student is not a district resident, respondent substantially relies upon its surveillance evidence.  The surveillance evidence indicates that petitioner and the student were not physically present at the in-district address during the period in question.  While petitioner claims to have relocated to a residence directly across the street from the in-district address, the record indicates that such residence would have been observed from the surveillance location.  As noted above, the surveillance reports reveal that on 12 separate observations, no activity or subjects related to the investigation were observed at the in-district address, which was the recorded address of the student at the time of enrollment.  In addition, the district conducted surveillance on three days following the residency meeting and did not observe the petitioner, her car or the student in the vicinity of the in-district address. 

Petitioner has not submitted a reply and/or provided any evidence to explain or refute respondent’s surveillance evidence, which indicates that petitioner is not physically present at the across-the-street in-district address on weekday mornings and evenings.  Although respondent’s surveillance is not overwhelming, upon review of the totality of the evidence, including respondent’s surveillance, I cannot conclude that respondent’s determination that the student is not a district resident is arbitrary, capricious or unreasonable. 

Although I am constrained to dismiss the appeal for the reasons stated above, I note that respondent’s July 8, 2016 letter advising petitioner of the denial of residency does not comply with the requirement of 8 NYCRR §100.2(y)(6) that the written notice of residency determination state the specific basis for the determination, including any documentary or other evidence on which the determination is based.  The July 8 letter does not reference the surveillance evidence or state any reason for the residency determination, nor does the June 2016 letter it cross-references.  I admonish respondent that it must fully comply with the requirements of 8 NYCRR §100.2(y)(6).

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on the student’s behalf at any time, should circumstances change, and to present any information bearing on the student’s residence for respondent’s consideration.