Decision No. 17,941
Appeal of ROSANA READE, on behalf of EUNSOO YANG and ERIC MUTHOKA; JON ALLEN and MAYA ALLEN, on behalf of JONATAN CACKOWSKI; LINDA DEBOLT, on behalf of KEUNHO PARK; ANITA MONTANA, on behalf of SHUKAI YANG; WILLIAM TORRES, on behalf of DANIL VOSKOBONIKOV; TIM WELTY, on behalf of LUOJIA GE; and ROBERT WELTY, on behalf of TINGZHUO CAO, from action of the Board of Education of the Middle Country Central School District regarding residency.
Decision No. 17,941
(November 23, 2020)
Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel
ROSA., Interim Commissioner.--Petitioners appeal determinations of the Middle Country Central School District (“respondent”) to deny Eunsoo Yang (“Eunsoo”), Eric Muthoka (“Eric”), Jonatan Cackowski (“Jonatan”), Keunho Park (“Keunho”), Shukai Yang (“Shukai”), Danil Voskobonikov (“Danil”), Luojia Ge (“Luojia”) and Tingzhuo Cao (“Tingzhuo”) (collectively, “the students”) transportation to a nonpublic school during the 2019-2020 school year. The appeal must be dismissed.
Petitioners state that they are the respective “guardians” of the students, who are foreign nationals living in the United States pursuant to individual Class F-1 Visas (“F-1 Visa”). An F-1 Visa is issued to citizens of foreign countries who wish to enter the United States to attend certain schools — in this case, Our Savior New American School, a nonpublic school located in Centereach, New York (the “nonpublic school”).
In summer and fall 2019, petitioners sought to enroll the students as district residents. In support of their requests, petitioners submitted copies of the students’ F-1 Visas. Respondent enrolled each student as a district resident and provided transportation to and from the nonpublic school.
After respondent enrolled the students, respondent commissioned a transportation efficiency study and realized that it might have been improperly providing transportation to certain nonresidents.
By separate letters dated October 1, 2019, respondent’s superintendent informed petitioners that the students may not be eligible for transportation because they were not residents of the district. The superintendent further indicated that she had scheduled individual meetings on October 7 and 8, 2019 to permit petitioners to present any written and verbal information concerning the students’ residency status. Petitioner Reade’s husband and petitioners Jon and Maya Allen submitted additional information; no other petitioners responded to the letters or attended the meetings on October 7 and 8.
By letters dated October 18, 2019, respondent informed petitioners of its determination that the students were not district residents and, thus, not entitled to transportation to the nonpublic school. The letters further informed petitioners that the students’ transportation to the nonpublic school would terminate as of November 27, 2019. This appeal ensued. Petitioners’ request for interim relief was denied on November 27, 2019.
Petitioners assert that the students are district residents entitled to transportation to the nonpublic school – and that, regardless, residency considerations do not apply to students seeking transportation to non-public schools. Petitioners argue that they received insufficient notice or due process in connection with respondent’s determinations that the students were not district residents entitled to transportation to the nonpublic school. Petitioners further argue that respondent’s determinations constitute a “denial of equal protection” as defined by the federal and New York State constitutions. Petitioners seek a determination that the students are entitled to receive transportation.
Respondent argues that petitioners Anita Montana, William Torres and Tim Welty lack standing to maintain this appeal. With respect to the remaining petitioners, respondent argues that its determination was reasonable and that it acted properly at all times.
First, I must address whether several petitioners have standing to bring this appeal. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).
Respondent argues that Shukai Yang reached the age of majority prior to the commencement of this appeal, and, therefore, Anita Montana, the alleged guardian, does not have standing to bring this appeal on Shukai’s behalf. The Commissioner has held, however, that although a person over the age of 18 is legally competent to maintain an appeal, a parent may petition on behalf of his or her school-aged child (see e.g. Appeal of T.F., 60 Ed Dept Rep, Decision No. 17,916; Appeal of White, 52 id., Decision No. 16,442; Appeal of John W. and Lorraine W., 37 id. 713, Decision No. 13,965). Petitioners’ guardianship status is the ultimate issue to be resolved in this appeal. Thus, I decline to dismiss the appeal on the threshold issue of standing and will address the guardianship status of petitioner Montana and several other petitioners below.
Respondent further argues that Xavier Torres and Jessica Torres lack standing because the guardianship agreement identifies “William Torres” as the sole guardian of Danil Voskobonikov, who is not a petitioner. Similarly, respondent argues that Tim Welty lacks standing because one “Karla Welty,” who is not a petitioner, is listed as the sole guardian for Luojia Ge. Petitioners did not submit a reply or otherwise respond to this defense. While the evidence of guardianship or lack thereof is not overwhelming, I am nevertheless constrained to dismiss the claims brought by Xavier Torres, Jessica Torres, and Tim Welty for lack of standing (see Appeal of the Board of Education of the East Ramapo Central School District, 58 Ed Dept Rep, Decision No. 17,456).
With respect to the remaining petitioners, 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320).
The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).
Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 ; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).
Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). In an appeal to the Commissioner, the Petitioners has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which Petitioners seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
At the outset, I reject petitioners’ argument that “the issue of ‘residency’ is entirely inapplicable to the transportation of ‘students’ or ‘pupils’ attending non-public schools ....” Petitioner contends that Education Law §3635 provides that “any pupil at a non-public school is entitled to transportation” within the distance limitations identified in the statute. The right to receive transportation to a nonpublic school is derived from one’s residency within a school district (see e.g. Education Law §3635; Appeal of Menzer, 59 Ed Dept Rep, Decision No. 17,768; Appeal of Fuller, 41 id. 86; Decision No. 14,623). Indeed, Education Law §3635(2), which requires that a parent or guardian make a written request for transportation to a nonpublic school prior to April 1, requires that such request be submitted to the student’s district of residence. While petitioners are correct that the first sentence of Education Law §3635(2) adverts to residence in “any school district,” the remainder of the subdivision uses the singular phrase “the district”; in context, this refers to the district of residence. Therefore, petitioners’ argument is without merit.
Further, petitioners’ claim that they did not receive adequate notice or due process of respondent’s determination is without merit. Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district. It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178; Appeal of Clark, 46 id. 143, Decision No. 15,468). As indicated above, the record reflects that petitioners were afforded such an opportunity. Although petitioners claim that they were not afforded “guidance as to what documentation [respondent] wanted” or “any option to pay for such busing,” petitioners identify no law, regulation or policy requiring respondent to take such actions.
On the merits, the remaining petitioners have not carried their burden of establishing that there has been a total and permanent transfer of custody and control over the students from their legal guardians to petitioners. Although petitioners have submitted documents which purport to transfer custody of the students to petitioners, the documents are titled “Natural Parents Temporary Guardianship Authorization” and include the following language: “[t]his responsibility automatically terminates at the close of the school year or termination of student status at Our Savior New American School,” and “[i]f student does not reside with the temporary guardians listed below, all guardianship responsibilities for the ... student’s welfare cease.” Thus, on their face, the documents are temporary, which precludes them from constituting a total transfer of custody and control (Appeal of Romero, 58 Ed Dept Rep, Decision No. 17,599; Appeal of Burova, 56 id., Decision No. 16,979; Appeal of Polynice, 48 id. 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). Therefore, petitioners have not met their burden of proving that the students’ legal guardians effected a complete transfer of custody and control of the students to petitioners.
Additionally, the students’ possession of F-1 Visas, does not, ipso facto, render them district residents. Pursuant to 8 USC §1101(a)(15)(F)(i), the students’ receipt of an F-1 Visa means that each student is “[a]n alien having a residence in a foreign country which he has no intention of abandoning” who is residing in the United States “temporarily and solely for the purpose of pursuing ... a course of study ....” Although the Commissioner has held that a school district may not impose an irrebuttable presumption of residency based on a student’s visa status, such status is nevertheless relevant to a student’s intent to remain in the United States (see e.g. Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764, Appeal of Esposito, 57 id., Decision No. 17,415; Appeal of Plata, 40 id. 552, Decision No. 14,555). As indicated above, an F-1 Visa is intended for one who “seeks to enter the United States temporarily and solely for the purpose of pursuing ... a course of study.” Petitioners have presented no evidence to the contrary. Thus, the student’s visa status does not support a finding that the student intends to remain within respondent’s district (Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764).
While respondent initially provided the students with transportation to which they were not legally entitled, prior decisions of a district do not bind or estop the district from making a different determination (see e.g. Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779). It is well-settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Wertman, 58 Ed Dept Rep, Decision No. 17,614, judgment granted dismissing petition, Wertman v. NYS Education Department, Sup. Ct., Albany Co., Special Term [Cholakis, J.], December 30, 2019). Therefore, respondent’s prior provision of transportation does not entitle petitioners to continued transportation.
Petitioners’ claim that they were denied equal protection of the laws within the meaning of the federal and State constitutions is without merit. The Court of Appeals has held that, consistent with Education Law §3202, “every school district must provide tuition-free education only to students whose parents or legal guardians reside within the district” (Longwood Cent. Sch. Dist. v. Springs Union Free Sch. Dist., 1 NY3d 385 [internal quotations omitted]; see also Wertman v. NYS Education Department, Sup. Ct., Albany Co., Special Term [Cholakis, J.], December 30, 2019 [so holding and citing Longwood]). There is no evidence that respondent applies this requirement in an unequal manner. Plyler v. Doe (457 U.S. 202), cited by petitioner, does not dictate a contrary conclusion. Plyer merely held that a Texas law requiring non-citizens to pay tuition as a condition of attending public school violated the equal protection clause. Indeed, in a concurring opinion, Justice Powell confirmed the validity of a residency requirement for public school attendance, observing that “a school district may require that illegal alien children, like any other children, actually reside in the school district before admitting them to the schools. A requirement of de facto residency, uniformly applied, would not violate any principle of equal protection” (Plyler v. Doe, 457 U.S. 202, 236, n.4 [Powell, JJ., concurring] [emphasis in original]).
Therefore, the presumption that the students reside with their parents has not been rebutted. As such, I cannot find respondent’s determination that the students are not district residents and, therefore, not entitled to transportation to the nonpublic school to be arbitrary or capricious (see Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764, Appeal of Botsakos, 56 id., Decision No. 17,093). Although petitioners allege that transportation of the students would not impose additional costs upon respondent, respondent is only obligated to transport a student between his or her residence in the school district and the school which he or she legally attends (Education Law §3635[a]).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The petition lists Shukai’s surname as “Yan;” however, it appears from the record that Shukai’s correct surname is “Yang.”
 As further addressed below, respondent asserts that, for varying reasons, Anita Montana, Xavier Torres, Jessica Torres, and Tim Welty are not the guardians of the children they purportedly represent in this appeal.