Appeal of L.B., on behalf of her daughter L.M., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,277

(August 8, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter is not a district resident.  The appeal must be dismissed.

In January 2011, respondent initiated an investigation into petitioner’s residency because its middle school attendance officer was unable to reach petitioner, L.M. was consistently late to school and a staff member saw L.M. in Hempstead.  Respondent’s investigator conducted surveillance and the report indicates that, during a three-week period in February 2011, L.M. was observed several times either leaving a Hempstead address in the early morning hours or arriving by taxi to the in-district residence prior to the start of the school day.  By letter dated February 15, 2011, respondent’s director of pupil services (“director”) informed petitioner that her family’s residency was in question, and provided her with the opportunity to meet with her to discuss and submit information regarding her residency.  By letter dated February 18, 2011, the director notified petitioner of the final determination that L.M. was not a district resident.  Petitioner appealed the determination to respondent and was informed by the district that the final determination would stand.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 10, 2011.

Petitioner contends that she and L.M. reside within respondent’s district and that L.M. is entitled to attend respondent’s school on a tuition-free basis. 

Respondent submits that petitioner and L.M. reside in Hempstead, outside respondent’s district, and that the appeal should be dismissed in its entirety.

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 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). 

In Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129, two previous appeals by petitioner challenging another residency determination by respondent were dismissed.  It was noted therein that petitioner had the right to reapply for admission on L.M.’s behalf at any time and to submit any documentary evidence for respondent’s consideration.  In the instant appeal, petitioner submitted certain documentation, including a letter indicating that she and L.M. rent a room from an individual residing in the district, rental receipts and vehicle insurance cards listing the in-district residence.  However, petitioner does not dispute respondent’s surveillance evidence indicating that she and L.M. reside in Hempstead, that she has utilities and telephone service in her name at the Hempstead address, and that her vehicle is also registered to her at that address.  Based on the record before me, I cannot conclude that respondent’s determination was arbitrary or capricious. 

THE APPEAL IS DISMISSED.

END OF FILE.