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Decision No. 17,353

Appeal of EDWINA G. MOORE, on behalf of her children DAVID and BRIANNA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 17,353

(March 20, 2018)

The Crawford Law Firm, PC, attorneys for petitioner, Mark A. Crawford, Esq., of counsel

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her children, David and Brianna (the “students”), are not residents of the district entitled to attend its schools tuition-free.  The appeal must be sustained.

Petitioner asserts that she and the students have resided within respondent’s district for over three years.  Petitioner states that her parents, who reside outside of respondent’s district, assist her with the needs of her children and live within close proximity to the students’ school and petitioner’s house.  According to the record, the students were enrolled in respondent’s district prior to January 2015.  After a residency investigation and hearing were conducted, petitioner was informed in December 2014 that the students were not district residents and would be excluded from respondent’s schools on January 30, 2015.  Petitioner appealed this determination pursuant to Education Law §310 and the appeal was dismissed as moot (Appeal of Moore, 57 Ed Dept Rep, Decision No. 17,352).   

On February 23, 2015, petitioner re-registered the students in the district, submitting new documentation substantiating her residency within the district.  Based upon this new evidence, the students were re-admitted to the district.  The district subsequently initiated a new residency investigation, including surveillance on four weekday mornings at the in-district address and on seven weekday mornings at the out-of-district residence between September and November 2015.  Neither the students nor petitioner were observed at the in-district address on any of the dates of surveillance; however, the students were observed leaving the out-of-district residence with their uncle and/or their uncle’s vehicle on each date of surveillance.

By letter dated October 6, 2015, the administrative assistant to the superintendent informed petitioner that the students would be excluded from respondent’s schools on the basis of “[a]ctual residence elsewhere” as of October 19, 2015.  Petitioner requested an appeal of this residency determination.  Respondent thereafter commenced a residency hearing on November 10, 2015.  At the hearing, petitioner testified that construction at the in-district residence, which petitioner had previously asserted was a basis for her presence outside the district, was now complete.  She further testified that she wakes her children up between 4:30 a.m. and 4:45 a.m. and that she and the students leave the house at 5:00 a.m. so that she can drop the students off at her parents’ home, which is located outside the geographical boundaries of respondent’s district (the “out-of-district address”) as she has to be at work by 6:00 a.m.  Petitioner further testified that her brother drives to the out-of-district address every morning, picks up the students and drives them to school. 

After the hearing had concluded, but before a decision had been rendered, the district conducted additional surveillance of the in-district address on November 16, 2015 and attempted to visit the in-district address on November 17, 2015.  The district also conducted additional surveillance of the out-of-district residence on the same day as the hearing, November 10, 2015.  In an undated decision, the hearing officer concluded that the students were not residents of the district and ordered that they be excluded as of February 1, 2016.  This appeal ensued. Petitioner’s request for interim relief was granted on March 4, 2016.

Petitioner argues that the students live with her in the district and that she is a single parent with “chronic health conditions” and early morning work hours.  Petitioner claims that because of these hardships, her family assists her with childcare, which includes the children eating breakfast at her parents’ out-of-district address before school.  Petitioner further argues that the students started spending “significantly more time” with petitioner’s parents in the beginning of the school year as the in-district home petitioner lived in was undergoing construction.  Petitioner claims that because the hearing officer made a residency determination based, in part, on evidence obtained after the hearing record was closed and without providing her the opportunity to respond to the additional evidence, she was deprived of a fair hearing.  Petitioner also provides explanations to refute the dates of respondent’s surveillance and the home visit.  Petitioner further argues, for the first time on appeal, that the students spent more time with her parents at the out-of-district residence during September 2015 because her father was hospitalized during that period of time.

Respondent argues that its determination regarding the students’ residency was rational and supported by the record.  Respondent contends that petitioner did not offer the explanations which she offers on appeal to refute the district’s surveillance at the hearing; in any event, respondent argues that these explanations do not rebut its surveillance evidence.  Respondent claims that it has a right to conduct investigations of all students and that formal rules of evidence do not apply in administrative hearings.  Respondent also argues that neither the Regulations of the Commissioner nor the board’s policy prohibit the use of evidence of surveillance conducted after the hearing. 

First, I must address a procedural issue.  Petitioner submitted a reply which is captioned as a “Reply Affirmation.”  The reply includes additional documentary evidence.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  Therefore, to the extent the additional evidence submitted with the reply is responsive to new material set forth in the answer and the affirmative defenses therein, I have considered it pursuant to 8 NYCRR §276.5.

     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 met her burden of proving that she resides at the in-district address.  Respondent enrolled the students in its schools in February 2015 based upon petitioner’s submission of the following documents bearing the in-district address: (1) registration for a vehicle in petitioner’s name; (2) an interim driver’s license; (3) a car insurance card; (4) a bank statement; (4) a lease agreement identifying petitioner as the tenant of the in-district address; and (5) a property tax statement issued to petitioner’s brother, who is the owner of the in-district address.  Petitioner has submitted copies of these documents with her petition.

To rebut this evidence, respondent relies upon surveillance conducted at both the in-district residence and the grandparents’ out-of-district residence over multiple dates spanning September 2015 through November 2015.  As noted above, the district initially conducted surveillance prior to the November 10, 2015 residency hearing.  Neither the students nor petitioner were observed at the in-district address on any of the pre-hearing surveillance dates, which took place on four weekdays at 6:00 a.m.  Petitioner testified at the hearing that she was not present at the in-district address during the period of surveillance as she would have already left to drop the students off at their grandparents’ residence prior to 6:00 a.m. 

After the hearing had ended, but before the hearing officer rendered her decision, respondent surveilled the in-district address again on Monday, November 16, 2015 from 4:30 a.m. to 6:30 a.m.[1]  Respondent did not observe the students, petitioner, or her brother at the in-district address on that morning.  However, respondent did not conduct surveillance at the out-of-district address on that morning.  Petitioner explains that she was away that weekend and, therefore, the students were staying with their grandparents at the out-of-district address that day. Respondent also conducted a home visit of the in-district residence on November 17, 2015 at 6:00 p.m.  No one was home on this date.  Petitioner explains on appeal that her son was playing basketball that evening.  As noted above, respondent also conducted pre-hearing surveillance at the out-of-district address on seven weekday mornings.  Every day the students were observed leaving with their uncle and/or in his vehicle from the out-of-district residence.

The evidence from respondent’s surveillance corroborates petitioner’s explanation that the students are dropped off at their grandparents’ house early in the morning and are then taken by petitioner’s brother, the students’ uncle, to school.  On each date the out-of-district address was surveilled, petitioner’s brother’s car was observed pulling up to the grandparents’ house or already parked there, and on all dates, the students were observed leaving with petitioner’s brother in his car around the same time each morning. 

On appeal, petitioner has presented additional evidence to refute respondent’s surveillance evidence, including affidavits from her mother and father, the testimony of her brother at the residency hearing, and a patient discharge summary regarding her father’s admission to a hospital in September 2015.  Petitioner asserts on appeal that during part of the pre-hearing surveillance period, from September 18-30, 2015, her father was hospitalized, which resulted in petitioner spending time at the hospital and her children spending more time than usual with her mother at her parents’ out-of-district residence.  While petitioner did not submit all of this evidence to respondent prior to its residency determination, the Commissioner may consider evidence in a residency appeal, such as in a reply, even though it had not been previously submitted to the district (see Appeal of Mirza, 56 Ed Dept Rep, Decision No. 17,128; Appeal of a Student with a Disability, 56 id., Decision No. 17,061).  In this case, petitioner presented at the residency hearing a detailed explanation regarding her specific morning routine with her children and presented the students’ uncle’s testimony that he drives the students to school from their grandparents’ out-of-district residence, thereby refuting respondent’s surveillance evidence.  Respondent had the opportunity to cross-examine both petitioner and the students’ uncle at that hearing, as well as conduct additional surveillance to refute her explanations, which it did.  However, following the hearing, respondent only conducted one date of additional surveillance at the in-district residence, and attempted to visit the in-district address on a single occasion.  As for additional explanations presented for the first time in the petition and reply, respondent, in its answer, has had an opportunity to, and did in fact, respond to petitioner’s explanations and to submit rebuttal evidence (Appeal of Picton, 57 Ed Dept Rep, Decision No. 17,126). 

Therefore, while I agree with the district that the evidence presented by petitioner does not directly refute the surveillance conducted by the district with respect to petitioner’s lack of physical presence within the district, petitioner has presented reasonable explanations for the students’ presence at the out-of-district address on the dates of surveillance.  Moreover, the fact that petitioner and the students were not observed between approximately 6 a.m. and 8 a.m. at the in-district address during any of the pre-hearing surveillance dates is consistent with her explanation that she and the students leave the in-district address at 5 a.m.

Accordingly, on this record, petitioner has met her burden of proving that she and her children are district residents and respondent’s determination to the contrary must be set aside.  Nothing in this decision should be construed to limit respondent’s authority to conduct additional investigation by collecting further evidence, should questions remain regarding petitioner’s residency.

In light of the above disposition, I need not address the parties’ other contentions.[2]


IT IS ORDERED that respondent shall admit the students to the schools maintained by the Sewanhaka Central High School District on the grounds that they are residents of said district.



[1] Although petitioner objects to this surveillance evidence on appeal and asserts that she was not afforded an opportunity to refute it below, petitioner has had the opportunity to, and did in fact, respond to this evidence in this appeal.  Accordingly, I have considered this evidence herein.


[2] Regarding petitioner’s argument that she was deprived of a fair hearing because the hearing officer accepted respondent’s surveillance evidence conducted once the hearing had concluded, but prior to the hearing officer’s decision, I do not need to make a finding on this assertion as I have accepted petitioner’s explanations refuting such surveillance evidence and concluded that they sufficiently explain the students’ absence from the in-district address on that date.