Appeal of J.A, on behalf of her children M.C., C.C., and A.M., from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 16,655

(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 children, M.C., C.C., and A.M. (“the students”), are not district residents.  The appeal must be sustained.

Petitioner’s children attended school in respondent’s district during the 2013-2014 school year.  According to the record, M.C. and C.C. had been attending respondent’s school since 2007. 

In January 2014, the Assistant Superintendent for Instruction and Personnel (“assistant superintendent”) directed the security department to conduct surveillance of petitioner and her children.  Surveillance was conducted during January and February 2014.  According to the assistant superintendent, the surveillance did not observe petitioner and her children at the in-district address (“Lincoln Avenue address”) claimed by petitioner as her residence but, instead, observed them at an address in Islip (“Islip address”) outside of the district.  According to respondent, the residency investigation further revealed that petitioner has two vehicles registered to the out-of-district address. 

By letter dated March 6, 2014, respondent’s assistant superintendent notified petitioner that the district had become aware that her children were not residing at the in-district address listed on their records.[1]  The letter stated that, if petitioner had documentary evidence to dispute these findings, she should contact the assistant superintendent by March 19, 2014.  The letter stated that, if petitioner did not contact the assistant superintendent by that date, petitioner’s youngest child, A.M, would be excluded from school as of March 28, 2014.  The letter clarified that, pursuant to district policy, because C.C. and M.C. were in their exit years at their schools, they would be permitted to complete the 2013-2014 school year.  The letter also notified petitioner of her appeal rights. 

On or about March 26, 2014, petitioner met with respondent’s registrar.  Petitioner advised the registrar that she intended to rent a house within the district and provided an executed lease agreement that commenced April 1, 2014.  Petitioner also provided a letter indicating that a gas utility account had been established in her name at the rental address.  On March 27, 2014, petitioner filed a change of address form with the district. 

By letter dated April 1, 2014, respondent’s assistant superintendent informed petitioner that, while the district was reviewing the documentation supplied at the March 26 meeting, A.M. would not be excluded from school until April 11, 2014.  The letter reiterated that C.C. and M.C. could complete the 2013-2014 school year in respondent’s schools.

However, by letter dated March 31, 2014 (and apparently received by respondent after it had sent its April 1 letter), petitioner notified respondent not to change her address to the rental property address as previously directed.  No explanation was given for this change.  A.M.’s last date of attendance was April 11, 2014.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 15, 2014.

Petitioner contends that she and her children live with her fiancé at the Lincoln Avenue address within the district.  She asserts that they intend to live there indefinitely and that they do not reside at any other location.  To support her claim, petitioner submitted a property tax statement (in petitioner’s fiancé’s name), A.M.’s birth certificate, a gas bill (also in petitioner’s fiancé’s name), petitioner’s and her fiancé’s driver’s licenses, as well as their voter registration information.  Also attached to the petition is an unsworn statement from petitioner’s fiancé stating that he owns the Lincoln Avenue home where he lives with petitioner and her children.  He further states that they have lived together since June 2007.

Respondent contends that the surveillance conducted of petitioner and her children in January and February 2014 revealed that she and her children do not reside in the school district but, instead, reside in Islip.  Respondent further asserts that petitioner has not met her burden of proving that her children reside within the district and asserts that its decision that her children are not district residents is not arbitrary and capricious.

I will first address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material set forth in the answer.

I note that petitioner’s reply includes allegations and exhibits responding to respondent’s surveillance and investigation.  I will consider that information as responsive to new material in the answer.  There is no indication in the record that petitioner was presented with or aware of the surveillance or investigatory information prior to receipt of respondent’s answer.  Indeed, respondent’s March 6, 2014 letter does not mention it, only stating that it “had been confirmed” that petitioner’s family did not reside in the district.  There is also no mention in the record that, at the March 26, 2014 meeting, respondent revealed the surveillance or other information it had obtained.  Finally, respondent apparently relies on its April 1, 2014 letter extending A.M.’s exclusion date as its final determination letter.  At no point was the surveillance mentioned in that letter.  I also note that respondent does not object to petitioner’s reply.  Therefore, I have considered petitioner’s explanatory information regarding the surveillance contained in her reply.

Turning to the merits of the case, 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, petitioner has met her burden.  According to the unsworn surveillance report, surveillance was conducted on January 13, 14, 15, 16, and 17, 2014, and again on February 24 and 26, 2014.  All surveillance was conducted on school days, with times ranging between 7:00 a.m. and 4:00 p.m.  All of the surveillance, save one day (January 16, 2014), was conducted at the Islip address outside of the district.  On four days the children were observed being picked up at school and taken to the out-of-district address.  On three mornings, one or more of the children were observed leaving the Islip address and being driven to school in respondent’s district.  On the one day that surveillance was conducted at petitioner’s fiancé’s residence within the district, the children were not seen entering or exiting that residence between 7:00 a.m. and 3:00 p.m., but were in school that day. 

Petitioner admits that her children were picked up at or taken to the Islip address on the noted dates.  Petitioner explains that she owns the house in Islip and rents part of it out as income property.  She further explains that her parents live upstairs in the house and that both are ill, requiring her care on a near-daily basis.  She states that her children are often with her at her parents home.  Petitioner explains that on January 13, 2014, the first day of surveillance, she brought the children to the Islip address in the morning to stay with her father because she took her mother to the hospital for a medical procedure.  She states that her fiancé works nights so he was not able to care for the children that morning.  She explains that one of the children, C.C., was picked up by a friend’s mother at the Islip address and transported to school.  When she was finished at the hospital, petitioner picked up her two other children at the Islip address and transported them to school.  Petitioner submits medical records confirming her mother’s surgery on that date and explains that her and her children’s presence at the Islip address during that week was to assist her parents as a result of her mother’s surgery.  Petitioner submits information indicating that, thereafter, on January 28, 2014, her mother had knee replacement surgery.  She explains that the February 24 and 26 surveillance showing the children exiting the Islip address to go to school was similarly due to the fact that she was assisting her mother.

In addition to the surveillance, respondent submits that two of petitioner’s vehicles are registered to the out-of-district address.  However, it appears that only one license plate was registered at that address and that a new car replaced an old one.  In any event, petitioner admits that she registered her car at that address in order to access insurance discounts. 

As noted above, at the March 26, 2014 meeting with the registrar, petitioner indicated that she would be renting a house in the district and filed a change of address form.  Although respondent maintains that this is evidence that petitioner did not previously reside at the Lincoln Avenue address as she claims, petitioner explains that, at that time, she and her fiancé had broken up.  Petitioner further explains that she her fiancé decided to reconcile on March 29, 2014; therefore, she canceled the lease for the rental property.  I note that respondent’s assistant superintendent alludes to this situation in her affidavit submitted by respondent.

In addition to providing reasonable explanations for respondent’s surveillance and her car registration, petitioner submits her driver’s license, voter registration, and numerous other documents that pre-date respondent’s questioning her residency and reflect the Lincoln Avenue address as petitioner and her children’s address.  Petitioner also provides a statement from her fiancé, A.M.’s father, that, although not sworn, asserts that petitioner and the children live with him in the district, consistent with petitioner’s claim.

After careful review of the totality of the record before me, I conclude that petitioner has met her burden of proof regarding her residency in respondent’s district.  Accordingly, the appeal must be sustained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent East Islip Union Free School District admit petitioner’s children to its schools without the payment of tuition.

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