Appeal of XIU JUAN CHEN, on behalf of her daughter YU YAN HUANG, from action of the Board of Education of the West Hempstead Union Free School District regarding residency.

Decision No. 16,408

(September 6, 2012)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

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

On or about December 17, 2010, Yu Yan Huang enrolled in respondent’s high school based upon petitioner’s representation that they resided on Bedell Terrace (“Bedell Terrace address”) within the district with Yu Yan’s step-father, Zhao Guang Li (“Mr. Li”).  During the second half of the 2010-2011 school year, Zhao Guang Li enrolled his son, Xiang Huang Li, in the district’s elementary school.  Mr. Li represented that Xiang Huang Li is Yu Yan Huang’s brother and that they resided, along with petitioner, at the Bedell Terrace address.  On or about January 12, 2012, the district’s elementary school attempted to mail a letter to the Bedell Terrace address, but it was returned.  On or about January 30, 2012, Yu Yan Huang arrived late to school and presented the district’s attendance officer with a copy of a notification indicating that she was at an immigration hearing.  The notification form listed Yu Yan Huang’s home address as Henry Street, which is outside respondent’s district (“Henry Street address”).

By letter dated January 30, 2012, respondent’s assistant principal notified petitioner that her residency was in question and required her to submit proof by February 13, 2012 that Yu Yan Huang was a legal resident of the district.  Petitioner submitted documentation indicating that she now resided with her daughter on Hempstead Avenue within the district (“Hempstead Avenue address”).

On March 6, 7 and 8, 2012, the district’s investigator visited the Hempstead Avenue address to verify petitioner’s residency but found it was vacant.

By letter dated March 8, 2012, respondent’s assistant superintendent again advised petitioner that her residency was at issue and that her daughter may not be entitled to attend the district’s schools tuition free.  Petitioner was provided an opportunity to meet with respondent’s designee on March 15, 2012 to provide evidence regarding Yu Yan Huang’s right to attend school in the district.

A residency hearing was held on March 15, 2012.  By letter dated March 19, 2012, the superintendent notified petitioner of his determination that Yu Yan Huang was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 16, 2012.

Petitioner contends that she and Yu Yan Huang reside at the Hempstead Avenue address in the district and that, consequently, her daughter is entitled to attend respondent’s schools.

Respondent alleges that the petition was not properly served, that the affidavit of service is defective and that the appeal is now untimely.  Respondent asserts that its determination that Yu Yan Huang is not a district resident is in all respects proper.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

The affidavit of service filed with the petition stated that the petition was served on “Chen Xiu Juan” as the district clerk on April 2, 2012.  However, I note that that is the petitioner’s name herein and not that of the district clerk.  Respondent denies that service was made upon any person authorized to accept service (see 8 NYCRR §275.8[a]) and asserts that it first received a copy of the petition from my Office of Counsel on April 12, 2012.  Respondent’s district clerk also submits an affidavit stating that she has never been served with a petition in this appeal.  Petitioner has not submitted a reply to respondent’s assertions or any other proof that service was properly effected on respondent in accordance with §275.8(a).  Therefore, the appeal must be dismissed.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.  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).  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 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). 

Petitioner has not established that she or her daughter are physically present in the district.  According to the transcript of the residency hearing, when Yu Yan Huang arrived from China in November 2010, petitioner lived in the district at the Bedell Terrace address.  However, petitioner admitted that, in May 2011, she and Yu Yan Huang moved back to the Henry Street address outside respondent’s district.  Significantly, petitioner testified that, from May 2011 until the March 15, 2012 residency hearing, she and her daughter have resided at the Henry Street address and that Yu Yan Huang is driven to school each day from there.  Petitioner then testified that her daughter moved to an apartment at the Hempstead Avenue address, although petitioner herself was not living there.[1] However, this is inconsistent with the investigator’s report that the Hempstead Avenue premises are vacant.  Petitioner further testified that, at some future date, her daughter will reside at Hempstead Avenue full-time, but that she intends her primary residence to be the Henry Street address.  Future plans to establish residency in a school district do not satisfy the two-pronged test of physical presence within the district and intent to remain (seeAppeal of Yusupova, 49 Ed Dept Rep 88, Decision No. 15,966; Appeal of Sigsby, 44 id. 97, Decision No. 15,109).

I find that neither petitioner nor her daughter were physically present in the district during the period relevant to this appeal.  Therefore, on this record, I am unable to conclude that respondent’s residency determination was arbitrary, capricious or unreasonable.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her daughter’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.