Appeal of NATASHA GAY, on behalf of KANE GAY and CHASE LEWIS, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,636

(August 5, 2014)

Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her children, Kane Gay and Chase Lewis, are not district residents.  The appeal must be dismissed.

The record indicates that petitioner completed registration questionnaires for each of her children on January 8, 2013, claiming residence in Baldwin, New York, within respondent’s district.  Also included were affidavits of residency dated January 4, 2013 by petitioner and by petitioner’s mother, as the homeowner, attesting that petitioner and her children resided in the district at the home of petitioner’s mother.  The record further indicates that the children began attending school within the district on January 10, 2013. 

In February 2014, the district began a residency investigation after one of the children told his teacher that he lived in Lynbrook, outside the district.  Surveillance was conducted at both the Baldwin and Lynbrook residences on the same six mornings between February 27, 2014 and March 7, 2014.  During one week, petitioner and her children were seen exiting the Lynbrook address on three mornings – and the Baldwin location on one morning – before driving to school.  

By letter dated March 7, 2014, respondent’s Director of Pupil Services (“director”) advised petitioner of the determination that she and her children were not district residents and that the children would be excluded from respondent’s schools effective March 20, 2014.  The letter also offered petitioner the opportunity to meet and discuss this determination and to submit evidence relating to her and the children’s residency.  Respondent alleges that during a telephone conference with petitioner on March 11, 2014, petitioner stated that she contacted the Lynbrook Union Free School District (“Lynbrook”) for the purpose of obtaining transportation for her children to their school in respondent’s district, and further stated that “she wanted the students to remain at the [elementary school]” in respondent’s district. Respondent further provides an affidavit from the District Registrar (“registrar”) asserting that after the telephone conference with petitioner, the registrar contacted Lynbrook and received confirmation that petitioner had called them stating that “she resided in Lynbrook and would like the students to start school in Lynbrook Public Schools in September [2014], but preferred that the students finish the year in [the elementary school] in Baldwin.”  In addition, the registrar’s affidavit states that she received an email from the principal’s secretary at the children’s school in the district indicating that petitioner had called the school and inquired into how the students may receive transportation from Lynbrook to Baldwin, “due to the fact that [p]etitioner and the students moved to Lynbrook.” The affidavit claims that when petitioner was informed that there was no such transportation arrangement available if the students lived in Lynbrook, petitioner stated that “the family did not yet move to Lynbrook.” 

By letter dated March 11, 2014, respondent issued a final determination that petitioner’s children would be excluded effective March 20, 2014.  Petitioner submits a letter with her petition, dated March 14, 2014, to respondent’s Superintendent of Schools (“superintendent”) in which she states that she is “in the process of moving to Lynbrook” where she has “owned a condominium for 9 years, which is an investment property” but still resides at her mother’s house in respondent’s district until she is “fully moved to Lynbrook.”  In the letter, petitioner requests permission to allow her children to remain at their school in respondent’s district until “June [2014] and then [she] will register them into the Lynbrook district.”  No response to petitioner’s letter is included in the record.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 25, 2014. 

Petitioner seeks a determination that Kane Gay and Chase Lewis are residents of respondent’s district and are entitled to attend school without payment of tuition.    

Respondent argues that the petition fails to state a claim upon which relief may be granted and that petitioner has not established that her children permanently resided within the district during the 2013-2014 school year. 

 

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  I hereby take administrative notice of respondent’s 2013-2014 school calendar which indicates that June 26, 2014 was the last day of school.[1]  I also note that petitioner, in her March 14, 2014 letter, requested permission from the superintendent for her children to stay in the district until “June [2014] and then [she] will register them into the Lynbrook district.”  Petitioner also states in the petition that the children will be moving to Lynbrook in August 2014.  Because the school year has ended and petitioner has stated that she and her children will reside in Lynbrook as of August 2014, no meaningful relief can be granted and the appeal must be dismissed as moot. 
  Even if the appeal was not dismissed as moot, it 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).  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).

On the record before me, I find the evidence presented by petitioner insufficient to meet her burden of proving that she and her children reside in respondent’s district, particularly in light of the surveillance evidence presented by respondent and other facts in the record, including petitioner’s own statements.  In support of her petition, aside from the March 14, 2014 letter to the superintendent, petitioner merely submits a copy of her New York State driver’s license listing her mother’s in-district address.  Petitioner’s use of her mother’s address on her driver’s license is not dispositive and does not establish petitioner’s physical presence in the district (see e.g., Appeal of Thomas, 50 Ed Dept Rep, Decision No. 16,236).  Moreover, while petitioner’s March 14, 2014 letter does attempt to refute respondent’s surveillance evidence by stating that “on occasions I do go to Lynbrook because I am doing renovations, so this is why after investigations I am seen at the location in Lynbrook,” on the whole, petitioner’s evidence is insufficient to meet her burden of proof.  Therefore, I cannot find that respondent’s determination was arbitrary or capricious.   

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s behalf at any time, should circumstances change, and to present any information bearing on her children’s residency for respondent’s consideration.

THE APPEAL IS DISMISSED.           

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