Appeal of CHARLES JENKINS, JR., on behalf of his daughter NYISHA CARRINGTON, and his son CHARLES JENKINS III, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 15,265

(August 5, 2005)

Larinzo D. Clayton, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, attorneys for respondent, Kevin G. McMorrow, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Malverne Union Free School District ("respondent") that his children, Nyisha Carrington and Charles Jenkins III, are not district residents, and are not entitled to attend the district's schools tuition-free. The appeal must be dismissed.

Petitioner alleges that he lives with his children at his mother's residence on Orlando Avenue, West Hempstead, within the Malverne district. Petitioner claims that he became, and has remained, a district resident since 1994, when his mother, Gwendolyn Carroll Smith, purchased the Orlando Avenue address. Nyisha has attended district schools for the past three years, and Charles for the past two years.

In April 2005, district officials began an investigation of petitioner's residence after receiving reports concerning his children's transportation to and from school. Surveillance indicated that the children were sleeping overnight not at Orlando Avenue, but at an address on Beach 19th Street, Far Rockaway, outside the Malverne district.

By letter dated April 11, 2005, respondent's director of pupil personnel services advised petitioner that the district had determined that he did not live within district boundaries. At petitioner's request, a hearing was held on April 19, 2005, at which petitioner was confronted with photographic evidence showing his children leaving the Beach 19th Street address early in the morning, before arriving at school. By letter dated April 21, 2005, respondent's president advised petitioner that a final determination had been made, that he did not reside within district boundaries, that his children were not eligible to attend district schools, and that they would be excluded at the end of school on Friday, April 22, 2005.

This appeal was commenced May 4, 2005, and on May 19 I issued a stay allowing petitioner's children to attend school tuition-free, pending determination of this appeal.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). 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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

In support of his claim that he lives at Orlando Avenue, petitioner presents the very brief affidavit of his mother, and a photocopy of his New York State driver's license showing the Orlando Avenue address. He also presents a bank statement for a corporation, and certain documents filed with the Secretary of State for a second corporation. While these documents show the Orlando Avenue address, they do not show petitioner's name or any connection to either corporation. Petitioner's attorney's affidavit indicates a connection between petitioner and one of these corporations, but there is nothing to connect him to the other corporation.

Respondent presents a surveillance report covering various incidents between April 1 and April 11, 2005, and numerous photographs. The surveillance report indicates that on several occasions petitioner and his children left the Beach 19^th Street address early in the morning, after which petitioner drove Nyisha to Malverne High School, and drove his son to be picked up at a school bus stop at Orlando Avenue.

At the residency hearing on April 19, 2005, petitioner denied living at the Beach 19^th Street address, but admitted that his fianc�e lived there. Petitioner further conceded that he works at night, and "sometimes" leaves his children at his fianc�e's residence overnight.

Respondent concluded that petitioner had not supported his claim that his children resided within the Malverne Union Free School District, and I agree. The scant documentary and other evidence offered by petitioner is far from convincing in light of the surveillance report and photographic evidence. Significantly, petitioner has not served a reply to the proof submitted by respondent.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). 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 (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

I find respondent's determination to be neither arbitrary nor capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of his children at any time should circumstances change (Appeal of a Student with a Disability, 43 Ed Dept Rep 153, Decision No. 14,950; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

THE APPEAL IS DISMISSED.

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