Appeal of YAXING GUO, on behalf of her son XUEJIANG JIN, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,312

(November 9, 2011)

Law Office of Ming Hai, PC, attorneys for petitioner, Ming Hai, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her son, Xuejiang Jin, is not a district resident. The appeal must be dismissed.

In October 2009, petitioner enrolled Xuejiang in tenth grade in respondent’s schools and provided documentation indicating that they resided in Great Neck, within respondent’s district (“Great Neck address”).  Specifically, petitioner produced a lease agreement, mail listing the Great Neck address, and a notarized residency form.  She also presented her driver’s license, which listed an address in Flushing, outside respondent’s district.

On August 31, 2010, petitioner notified the district registrar (“registrar”) that she had relocated to another in-district residence in New Hyde Park (“New Hyde Park residence”) and provided the district with a lease agreement and utility bills for that address.  In an affidavit, the registrar states that she recognized the New Hyde Park address as that of a landlord (“landlord”) who had been previously involved in another residency investigation. 

The registrar further explains that, at that time, petitioner and Xuejiang provided inconsistent explanations for their relocation.  First, Xuejiang stated that he was moving to the New Hyde Park address because petitioner lived in New Jersey.  According to the registrar, petitioner and Xuejiang then stated that they stayed at both the Great Neck and New Hyde Park residences.  Xuejiang also stated that he and petitioner relocated because he wanted to live with his friend and that petitioner’s job required frequent out-of-state travel and he did not want to be alone.  Xuejiang also informed the registrar that the owner of the Great Neck address was selling the house and that he needed the New Hyde Park address for school mail.

Based on this information, a residency meeting was held on September 1, 2010.  At the meeting, petitioner claimed that her job as a nail technician required frequent overnight travel.  Petitioner also stated that she had slept at the New Hyde Park residence the night before, while Xuejiang slept at a friend’s house.

Thereafter, respondent commenced a residency investigation.  From September 1, 2010 to October 26, 2010, the investigator conducted surveillance of the New Hyde Park residence on four separate occasions.  On three occasions, Xuejiang was observed exiting the New Hyde Park residence in the early morning hours.  Petitioner was not observed at the New Hyde Park residence in the early morning hours, and was observed at the address on occasion when she arrived there to pick up her son and drove to the administration building for a meeting.  The investigator also visited the New Hyde Park residence on September 13 at 6:15 a.m.  At this time, the landlord’s wife invited him into the house and showed him a bedroom she claimed belonged to Xuejiang.  When asked where petitioner was, the landlord’s wife replied that she had already left. 

Additionally, on September 7, 2010, the investigator conducted a public records search and found two listings for petitioner outside the district in Flushing, including a listing for Cherry Avenue (“Cherry Avenue residence”).  Accordingly, the investigator conducted surveillance of this address.  On multiple occasions, the investigator observed petitioner’s car on the street in front of the Cherry Avenue residence in the early morning hours.  Additionally, petitioner was observed driving from the Cherry Avenue residence to the New Hyde Park residence in the morning.  From these observations, the investigator concluded that Xuejiang was residing at the New Hyde Park residence, but that the petitioner was living at the Cherry Avenue residence.

The investigation also revealed that a new vehicle was registered on November 17, 2010 to petitioner at the Cherry Avenue residence.  Based on these findings, by letter dated November 29, 2010, the registrar notified petitioner that Xuejiang was not a district resident entitled to attend its schools tuition-free and advised her that she had a right to present evidence in support of her residency.

On December 10, 2010, petitioner met with the registrar.  A translator was present. When the registrar asked petitioner about registering her new vehicle at the Cherry Avenue residence, petitioner stated that she used to live at the Cherry Avenue residence and decided to use that address for insurance purposes.     

By letter dated December 13, 2010, together with a bill for tuition for September to December 2010, the registrar notified petitioner that her son was not a district resident and advised that she could appeal the determination to respondent board.  By letter dated December 20, 2010, petitioner appealed the district’s decision. By decision dated January 25, 2011, together with a revised bill for tuition, respondent affirmed the district’s decision that petitioner’s son was not a district resident. Xuejiang was excluded from school as of January 28, 2011.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 8, 2011.

Petitioner claims that she and her son are district residents living in an apartment in New Hyde Park within the district and that her son is entitled to attend respondent’s schools tuition-free.

Respondent contends, interalia, that petitioner resides outside the district and that its residency determination was not arbitrary or capricious.

The appeal must be dismissed. 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 this case, petitioner has not established her physical presence and intent to reside in the district.  While petitioner was observed at the New Hyde Park residence for a brief period on one occasion, she was never observed at the New Hyde Park residence either at night or in the early morning hours and on multiple occasions was observed departing from an out-of-district residence in the early morning hours.  Petitioner also explained to respondent that she used to reside at the Cherry Avenue residence and continued to stay at such residence on occasion, but provided inconsistent statements regarding how often she continues to stay there, which respondent did not find credible.   

Moreover, while petitioner submits a number of documents as proof of her residency in the district, none of these documents establish her physical presence and intent to reside there.  A lease agreement is not dispositive evidence of residency.  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).  Nor is evidence of mail addressed to the New Hyde Park residence dispositive of petitioner’s residency claim, particularly in light of respondent’s surveillance indicating that she resides outside the district.  Finally, although petitioner’s son was observed at the New Hyde Park residence, as noted above, a child's residence is presumed to be that of his or her parents and petitioner has provided no evidence to rebut that presumption.  Indeed, in her petition, she asserts that Xuejiang resides with her and that she provides “all supports” for him.  Therefore, based on the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

In light of this disposition, I need not consider petitioner’s remaining contentions. While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of Xuejiang at any time and may present for respondent’s consideration any new information bearing on the question of residence. 

THE APPEAL IS DISMISSED.

END OF FILE.