Appeal of JACQUELINE CORTEZ, on behalf of her children HENRY and HAROLD ASENCIO, from action of the Board of Education of the East Meadow Union Free School District regarding residency.

Decision No. 16,658

(August 19, 2014)

Dawn Loughlin, Esq., attorney for petitioner

Jaspan Schlesinger LLP, attorneys for respondents, Carol A. Melnick, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the East Meadow Union Free School District ("respondent") that her children, Henry and Harold, are not district residents entitled to attend its schools tuition-free. The appeal must be sustained.

Petitioner resides at an address in Westbury, within respondent’s school district.  During the 2013 – 2014 school year, petitioner’s sons attended elementary school in the district.  According to respondent, at some point during October 2013, the district received “credible information” that petitioner’s children were not district residents.  Respondent’s superintendent stated in an affidavit that district staff reported that petitioner’s children were dropped off at petitioner’s home each morning for the purposes of attending school within respondent’s district.  By letter dated October 25, 2013, the assistant superintendent for business and finance (“assistant superintendent”) notified petitioner that a “final determination” had been made that her children were not district residents and would be excluded from school as of November 1, 2013.

Thereafter, on October 30, 2013, at 8:15 a.m., the district’s registrar and an assistant principal conducted a home visit at petitioner’s residence.  The registrar and assistant principal reported that, at the time of the visit, petitioner was not dressed, but her children were present and dressed with their backpacks.  The record indicates some disagreement over how many additional “child friendly” articles, such as toys, were seen in the home, but one of the visitation reports notes that the room observed was very dark.  There was another room in the home that respondent’s administrators did not enter.  Later in the morning, the assistant principal apparently spoke with petitioner’s children.  Respondent asserts in its answer that Henry initially stated to the assistant principal that the boys were dropped off at their mother’s home by their father in the morning, but later retracted that statement.  Although the record does not contain an affidavit by the assistant principal regarding the conversation, the assistant principal’s home visitation report recites that Henry subsequently told him that his father dropped him off the night before after getting a Halloween costume.

Petitioner was not afforded an opportunity to present information regarding her children’s residency prior to receiving respondent’s October 23, 2013 exclusion letter.  Petitioner commenced this appeal on November 21, 2013. Petitioner's request for interim relief admitting both children to school, pending a final determination on the merits, was granted on December 3, 2013.[1]

Petitioner asserts that she is her children’s sole caregiver, that they reside with her in respondent’s district and, therefore, are entitled to attend the district’s schools tuition-free.  Petitioner states that respondent failed to provide sufficient notice or an opportunity to respond to the allegations regarding her children’s residency.  Petitioner argues that respondent’s determination was arbitrary and capricious. 

Respondent does not dispute that petitioner resides in its district.  However, respondent asserts that her children actually reside with their father outside respondent’s district and are dropped off at petitioner’s home each morning for the purpose of attending respondent’s schools.  Respondent maintains that petitioner’s documentary submissions are not credible, and that the facts gathered during the home visitation are dispositive.  Respondent argues that entitlement to attend school is based solely upon residency within the school district and that its technical non-compliance with procedural requirements may be overlooked.

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).

In support of her claim that her children reside with her, petitioner submits a letter from her landlord stating that petitioner and her three children have been his tenants since November 2005.  Petitioner submits several documents listing the in-district residence, including documents from her children’s physician’s office, a cell phone bill, and a certificate of health insurance coverage for petitioner and her three children.  Petitioner also submits her income tax forms claiming “head of household” status with Henry and Harold as dependents at her in-district residence.

With respect to the home visit conducted by respondent’s staff, petitioner asserts that the home visit was brief (approximately five minutes), that the district’s registrar and assistant principal never requested that petitioner turn the lights on, and that they failed to observe all parts of the house, including a second bedroom in the house.  Petitioner also states that she was not dressed because of the unexpected nature of the district’s visit and that the children were dressed and ready because they were going to have breakfast out to celebrate Harold’s tenth birthday before going to school.

Respondent submits no direct surveillance of the children leaving from or arriving at either parent’s address.  Although respondent’s superintendent stated that district staff reported that Henry and Harold were dropped off at petitioner’s home each morning, respondent submits no affidavits from such staff or other surveillance to corroborate that assertion.  Respondent states in conclusory fashion that it based its investigation upon “credible evidence” after several years of “questions” about the children’s residency.  Moreover, after the single home visit by the registrar and assistant principal – conducted after respondent’s October 25, 2013 “final determination” - the administrators reported that the children were physically present in petitioner’s home.  They do not assert that they observed a pattern of the children being dropped off in the morning by their father or even that they observed the children entering the home that particular morning.

Respondent relies on Appeal of Khatib (36 Ed Dept Rep 100, Decision No. 13,670) in support of its decision; however, in that case petitioner’s children were actually observed leaving the out-of-district home.  Such is not the case here and Khatib, therefore, is not dispositive.  Respondent also cites to Appeal of Atkinson (51 Ed Dept Rep, Decision No. 16,309) where district investigators found minimal belongings of petitioner’s children at the in-district house.  However, unlike the instant appeal, in Atkinson significant surveillance was also conducted at both the in-district and out-of-district houses establishing student’s physical presence outside the district.  Respondent’s reliance on Atkinson, therefore, is misplaced.  Here, although respondent characterizes its evidence as credible, it consists of conclusory statements and provides no detail.  The only surveillance consisted of one visit to petitioner’s home where the children were actually observed to be present.

I note that, in its home visitation reports, respondent’s staff stated that petitioner told them the second bedroom – not visited – belonged to an older son and that Harold and Henry slept in her bedroom or on a couch.  Respondent contrasts those alleged statements – presumably to raise issues regarding her veracity – with petitioner’s statement in her verified reply that the room contained bunk beds where her children sleep.

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  On this record, I find that petitioner has met her burden.  I further find respondent's evidence insufficient to support its determination that petitioner’s children are not district residents.  The home visit upon which respondent relies to support its residency determination was conducted on October 30, 2013, which is 5 days after respondent’s final determination of residency.  Respondent has not proven that it had a sufficient basis for its October 25, 2013 determination that petitioner’s children are not residents which is the decisions under review in this appeal. 

In any case, I am not persuaded that respondent’s subsequent home visit demonstrates that petitioner’s children are not district residents.  While respondent’s evidence relating to the home visit, including petitioner’s alleged inconsistent statements regarding the second bedroom in her home, may have raised a suspicion to initiate surveillance and a thorough investigation, it does not prove that the children were not physically present at the in-district residence or that they actually reside elsewhere.  In view of petitioner’s documentary evidence, statements and explanations, contrasted with the minimal evidence presented by respondent, I conclude that respondent’s determination is not supported by the record.  Accordingly, it will be set aside.

Although not dispositive on the merits of this appeal, it is troubling that respondent failed to comply with the procedural requirements of §100.2(y) of the Commissioner’s regulations and did not afford petitioner an opportunity to provide it with information regarding her children’s residency prior to rendering its determination and excluding the children from school.  Respondent is reminded of its duty to comply with those procedures.  Presumably, in doing so, it will obtain a more comprehensive, probative record on which to base future determinations.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Henry and Harold Asencio to attend school in the East Meadow Union Free School District without the payment of tuition.

END OF FILE.