Appeal of a STUDENT WITH A DISABILITY and his sister by their mother, from action of the Board of Education of the Jamesville-DeWitt Central School District regarding residency.

Decision No. 16,318

(November 21, 2011)

Legal Services of Central New York, attorneys for petitioner, Susan M. Young and Shelly Tsai, Esqs., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the Jamesville-DeWitt Central School District (“respondent”) that her children are not residents of the Jamesville-DeWitt Central School District (“district”).  The appeal must be sustained.

The record indicates that, for several years, petitioner’s children have been enrolled in respondent’s schools using an in-district address.  During the 2010-2011 school year, petitioner’s daughter attended 10th grade and was a member of respondent’s varsity soccer team.  Questions regarding petitioner’s residency arose after respondent received information indicating that petitioner’s daughter was ineligible to play on the district’s team because she is not a district resident.  Based on this information, respondent commenced a residency investigation, during which surveillance was conducted.  On several occasions during the surveillance, petitioner’s vehicle was observed in the early morning hours parked outside her husband’s out-of-district home.  By letter dated October 29, 2010, respondent’s superintendent informed petitioner that her residency was in question, and provided her the opportunity to submit information.  In response, petitioner provided a copy of her lease, a New York State insurance card and mail sent to the in-district residence.  By letter dated November 12, 2010, the superintendent notified petitioner of the determination that her children were not district residents.  Petitioner appealed to respondent and provided additional documentation to the board at its November 15, 2010 meeting.  By letter dated January 25, 2011, respondent denied petitioner’s appeal.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 14, 2011.

Petitioner contends that she and her children reside within the district in an apartment that she receives as part of her compensation package as an office manager for an apartment complex.  Petitioner claims that she and her husband have been separated, but not legally divorced, for many years and that her husband resides outside the district with his girlfriend.  Petitioner asserts that her children divide their time between their parents’ residences.  Petitioner states that because her son has multiple disabilities, she and the children must spend time at her husband’s home as that is where they regularly perform certain therapies and keep specialized equipment relating to his disability. 

Petitioner contends that respondent’s January 25, 2011 determination failed to comply with the requirements of the Commissioner’s regulations and seeks an order directing respondent to comply with the same in the future.  Petitioner also seeks a determination that she and her children are district residents.

Respondent contends that it has complied with the law in all respects and that petitioner has failed to meet her burden of showing that its determination was arbitrary and capricious.

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).

For purposes of Education Law §3202(1), a person can only have one legal residence (Appeals of Moore, 49 Ed Dept Rep 158, Decision No. 15,985; Appeal of Reynolds, 41 id. 32, Decision No. 14,604; Appeal of Scaffa, 40 id. 177, Decision No. 14,453). 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).

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).

Based on the record before me, I find insufficient evidence to support respondent’s determination that petitioner is not a district resident.  Between September 2010 and January 2011, respondent’s investigator observed petitioner and her children at the out-of-district residence on several occasions in the early morning hours.  Petitioner does not dispute that she was at her husband’s residence with her children on those mornings.  However, petitioner explains that she and her children go there in the morning before school to perform “patterning” therapy on her son which requires three individuals.  Petitioner also states that on the three occasions in January 2011 on which her vehicle was observed at her husband’s home prior to 5:00 a.m., petitioner was called there by her husband to help comfort their daughter who was going through a difficult time.    

I find the surveillance provided to be inconclusive given petitioner’s explanations.  For example, there was no surveillance indicating where the children went after school and the surveillance conducted at the in-district residence was limited, with one exception, to morning and afternoon hours, times where petitioner asserts she was transporting her son to and from school and/or attending her daughter’s soccer games.  In addition, the surveillance report is internally inconsistent.  For example, according to the report, a neighbor residing at the complex indicated that he believed a woman not matching petitioner’s description and her child lived in the apartment petitioner contends is hers.  However, the report subsequently states that “[a]lthough unconfirmed, it does not appear that any individuals reside in that apartment.” 

In contrast, petitioner submits numerous documents in support of her claim of residency, including tax returns, an application for a handicap parking permit, polling information from the Board of Elections, a five year lease and an electric bill from February 2009-January 2011.  Petitioner also submits affidavits from her husband and his girlfriend, and statements from two residents and the superintendent of the apartment complex indicating that petitioner and her children reside at the in-district apartment.   

Moreover, while respondent notes that the driver’s license, abstract and vehicle registration petitioner provided to respondent at its November 15, 2010 meeting as evidence of her in-district address were issued on that date, petitioner explains that her license which had the in-district residence written on the back, had expired on her birthday, October 26, 2010, and she needed to have it renewed and it appears that she made the same change to the registration at the same time.  In sum, I find that respondent’s evidence is inconclusive, particularly in light of petitioner’s evidence.  Accordingly, on the record before me, I must conclude that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.

Finally, I note that 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 Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).  While the November 12, 2010 letter from the superintendent satisfies the requirements in the regulation, the January 25, 2011 decision from respondent does not.  I remind respondent of the need to comply with such procedures in the future.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow petitioner’s children to attend school in the Jamesville-DeWitt Central School District without the payment of tuition.

END OF FILE.