Appeal of D.M., on behalf of her son, C.P, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 16,648

(August 18, 2014)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the East Islip Union Free School District ("respondent") that her son, C.P., is not a district resident. The appeal must be dismissed.

     C.P. attended respondent’s Timber Point Elementary School (the “school”) where he was a third-grade student during the 2013-2014 school year.  Petitioner and C.P. apparently resided with petitioner’s mother on Simmons Drive, East Islip, New York (the “East Islip address”), which is within respondent’s district.

In February 2014, respondent’s assistant superintendent of instruction and personnel (the “superintendent”) commenced a residency investigation after receiving information that petitioner no longer lived within the district.  By letter dated March 13, 2014 - which was mailed to the East Islip address – the superintendent notified petitioner that she was not a district resident.  This letter afforded petitioner an opportunity to discuss the matter and stated that if petitioner failed to respond, C.P. would be excluded from the school after March 28, 2014.  This letter was ultimately returned to the superintendent as “unclaimed.”

Upon learning of the impending exclusion, petitioner contacted the superintendent by telephone and stated that although at one time she planned on moving to Oakdale (which is outside the district), she never did.  In response to these claims, the superintendent initiated surveillance of petitioner which commenced on March 24, 2014. In light of the surveillance investigation, the superintendent issued a letter dated March 25, 2014 – which was again mailed to the East Islip address – advising petitioner that C.P.’s date of exclusion from the school had been extended until April 30, 2014.  This letter was also ultimately returned to the superintendent as “unclaimed.”

On March 24, 2014, the first day of the surveillance investigation, the investigator witnessed C.P. being dropped off at the school in a car that that was driven back to a house on Vanderbilt Boulevard in Oakdale (the “Oakdale address”).  Having now identified a specific address in Oakdale, the investigator began to observe this location.  He thereafter witnessed C.P. exiting the Oakdale address in the morning and then being driven to the school on March 25, March 26, March 27 and April 21. 

In addition to the surveillance, as a result of C.P.’s absence from school in April, a teacher asked another student, who lived near the East Islip address, to drop-off C.P.’s homework.  The student informed the teacher that he could not do so because C.P. moved away from the East Islip address and only C.P.’s grandmother lived there now.

Based upon the totality of the evidence set forth above, by letter dated April 28, 2014 – which this time was mailed to the Oakdale address – the superintendent notified petitioner that the decision to exclude C.P. from the school after April 30, 2014, was final.  After receiving this letter at the Oakdale address, Petitioner and her fiancée then met with the superintendent and respondent’s director of security on May 1, 2014.  According to the superintendent, petitioner conceded that she and C.P. did not live with her mother at the East Islip address anymore. 

At this meeting, petitioner was also advised that the only way C.P. could continue attending the school for the reminder of the 2013-2014 school year was to obtain interim relief in the form of an Order from the Commissioner of Education.  Consequently, later that day petitioner commenced the instant appeal and her request for interim relief was granted on May 8, 2014.  

     In her petition, petitioner simply states that she is C.P.’s mother and claims she and her son reside at the East Islip address.

     Respondent contends that that it was not properly served with the petition.  Respondent also maintains that its decision to exclude C.P. was not arbitrary and capricious because petitioner has failed to offer any evidence demonstrating that they reside at the East Islip address.

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 indicates that service was accomplished by leaving the petition with the secretary for the principal of the school.  Respondent contends that this service was not proper because the petition was not personally served on the district clerk. A school principal’s secretary is not one of the enumerated parties designated to accept service on behalf of a school district pursuant to 8 NYCRR §275.8(a), which includes members of the board of education and the superintendent of schools, as well as the district clerk.  Moreover, there is no  proof that she was a “person in the office of the superintendent of schools designated by the board of education to accept service” within the meaning of §275.8(a).  When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Willis, 50 Ed Dept Rep, Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117).  

Even if the appeal were not dismissed on procedural grounds, 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).

Here, I cannot find that petitioner has sustained her burden. Petitioner’s pleadings contain minimal information other than her conclusory statement that C.P. resides with her at the East Islip address.  She has failed to provide any documentary evidence or affidavits supporting her position.  On this record, I cannot find that respondent’s determination that C.P. is not a district resident was arbitrary, capricious or unreasonable. 

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the school district for her son’s admission at any time (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180; Appeal of Smith, 39 id. 28, Decision No. 14,163) and to present any new information for respondent's consideration.

THE APPEAL IS DISMISSED.

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