Appeal of MARILYN WALWYN, on behalf of her children LAMARR and SHARI COUNCIL, from action of the Board of Education of the South Colonie Central School District regarding residency.

 

Decision No. 14,924

 

(August 12, 2003)

 

Tabner, Ryan and Keniry, attorneys for respondent, William F. Ryan, Esq., of counsel

 

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the South Colonie Central School District ("respondent") that her children, Lamarr and Shari, are not district residents.  The appeal must be dismissed.

Petitioner alleges that she and her children reside on Altamont Avenue in Colonie, within respondent"s school district.  Lamarr and Shari attended Colonie Central High School during the fall of 2002.  Respondent alleges that in late October 2002, Shari told the school nurse that she and her family no longer lived at Altamont Avenue, but had moved to Cleveland Street in Albany, outside the district.  When the nurse telephoned the Altamont Avenue phone number, the person who answered the telephone informed her that petitioner and her children no longer lived there and had moved to Cleveland Street in Albany.  The nurse then telephoned the Cleveland Street residence and spoke to petitioner.  A few days later, when Lamarr was ill, the nurse again telephoned the Cleveland Street residence and spoke with petitioner.

Consequently, respondent"s superintendent arranged for surveillance to be conducted at the Cleveland Street residence.  Between November 1 and November 12, 2002, on four different mornings, an investigator witnessed Shari and Lamarr leave the Cleveland Street residence with petitioner"s husband and travel to school.  At other times, the investigator observed the husband"s vehicle at the Cleveland Street residence.  On one occasion, the investigator witnessed a taxicab pick up Lamarr from the Cleveland Street residence and drop him off at school.

Based upon this investigation, the superintendent determined that petitioner and her children likely were not district residents.  By letter dated November 12, 2002, the superintendent notified petitioner that he would conduct a residency hearing on November 14, 2002. This letter was sent to petitioner at the Cleveland Street residence by regular and certified mail.  No one signed for the certified letter.  However, the regular mail letter was not returned to the district.  In addition, petitioner was personally served with the letter at the Cleveland Street residence.  At the time of service, the process server noticed petitioner"s name on the mailbox outside the residence.

Petitioner did not attend the residency hearing on November 14, 2002.  The superintendent determined that petitioner and her children were not district residents and that Lamarr and Shari would be excluded from school on November 15, 2002.  The superintendent"s determination was sent to petitioner by regular and certified mail.  In addition, a process server affixed the superintendent"s letter to the door of the Cleveland Street residence after petitioner refused to accept personal service.  Upon receiving the determination, petitioner commenced this appeal.  Petitioner"s request for interim relief was denied on December 5, 2002.

Petitioner asserts that she and her children are district residents.  Petitioner further alleges that respondent did not notify her of its decision to exclude the children until her husband visited the school on another matter. To support her claim, petitioner submits several postmarked envelopes addressed to her family at Altamont Avenue and a series of coupons from a tax preparation service listing the Altamont Avenue address. 

Respondent contends its residency determination was not arbitrary or capricious but was based on substantial evidence demonstrating that petitioner resides at the Cleveland Street address.  Further, respondent asserts that petitioner failed to submit any proof of residency.

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 guardians reside within the district (Appeal of Burnett, 42 Ed Dept Rep ___, Decision No. 14,825).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district, and an intent to reside in the district (Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Gimenez, 42 Ed Dept Rep ___, Decision No. 14,812). 

In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which she seeks relief and a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Crosier, 42 Ed Dept Rep ___, Decision No. 14,835).  Here, petitioner fails to demonstrate that her family resides within respondent"s school district.  The submission of postmarked envelopes and a mass mailer document do not substantiate petitioner"s claim of residency at Altamont Avenue. Additionally, I note that many of the submitted envelopes are dated prior to the fall of 2002, when Shari allegedly told the nurse that she and her family were no longer living at that address.

Respondent, on the other hand, has produced evidence showing that petitioner and her children reside outside the district. First, Shari told respondent"s nurse in the fall of 2002 that she and her family moved to Cleveland Street and petitioner answered the telephone at that address on at least two occasions.  In addition, surveillance between November 1 and November 12, 2002 showed Lamarr and Shari being driven to school from the Cleveland Street address on four occasions. Regular mail directed to petitioner at the Cleveland Street address was not returned as undeliverable.  Finally, respondent"s process server delivered a notice to petitioner at the Cleveland Street residence and observed petitioner"s name on the mailbox there. Accordingly, based on the record before me, I cannot conclude that respondent"s determination was arbitrary or capricious.

 

THE APPEAL IS DISMISSED.

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