Appeal of PATRISHAH MORGAN, on behalf of her son SA’RON MORGAN-SCOTT, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,869

(February 4, 2016)

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

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her son is not a district resident.  The appeal must be dismissed.

Petitioner states that she and her son reside within the district with her son’s aunts and his three cousins.  In January 2015, respondent received information that petitioner and her son may be residing outside the district.  As a result, respondent conducted surveillance at the in-district residence on four separate dates between January and May 2015.  The district investigator who conducted the surveillance did not observe the student exit the in-district residence during the surveillance.

In June 2015, respondent also conducted an address verification for the out-of-district premises.  The owner of the out-of-district premises indicated that petitioner’s name was on a lease for the premises, that petitioner’s son was listed on the lease, that petitioner moved into the premises on February 1, 2014, and that the lease would expire on January 31, 2016.

By letter dated July 17, 2015, respondent advised petitioner that it had determined that her son was not a district resident and that her son would not be allowed to attend school in the district for the 2015-2016 school year.  A residency review hearing was held on August 18, 2015.  According to respondent’s administrative assistant for central registration, petitioner explained at the hearing that she maintained many addresses with her son, that she and her son have a room at the in-district residence where she stays when she wants, and that she also sometimes stays with her mother outside the district.  By letter dated August 20, 2015, respondent advised petitioner that the additional information she provided regarding her residence had been reviewed during the residency review hearing and that it had been determined that her son was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 9, 2015.

Petitioner claims that she and her son reside within respondent’s district.  She seeks a determination that her son is a district resident and is entitled to attend the district’s schools tuition-free.

Respondent asserts that the appeal is untimely and that petitioner has failed to demonstrate that she and her son are district residents.  It maintains that its determination was proper and requests that the appeal be dismissed in its entirety.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

The record indicates that respondent’s determination was issued on August 20, 2015.  Affording the usual five days for mailing, since it is unclear from the record when petitioner received the determination, petitioner had until September 24, 2015 to commence this appeal.  The affidavit of service submitted with the petition indicates that petitioner did not commence this appeal until October 1, 2015, more than 30 days after petitioner’s receipt of the determination she is challenging, and she offers no explanation for the delay.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, as follows:

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).

Petitioner submits several documents in support of her claim that she and her son reside in the district, including their library cards and medical and financial information, all of which reflect the in-district address.  She also submits statements from three individuals indicating that she and her son live at the in-district address, although it is not clear who these individuals are and how they know that petitioner and her son reside there.  In addition, petitioner submits a letter addressed to the school district in which she explained her living arrangements and indicated that she goes to her mother’s out-of-district residence “a few nights out [of] the week” to prepare dinner for and provide assistance to her mother, who has a medical condition.  She also submits documentation of her mother’s medical condition. However, none of the documents submitted by petitioner establish her actual physical presence and intent to remain at the in-district address.

Respondent’s surveillance evidence shows that during the mornings of January 14 and 22, 2015 neither petitioner nor her son were observed exiting the in-district address.  Respondent’s investigator confirmed that on January 22, 2015, petitioner’s son had reported to school and was in his assigned class.  During the morning of February 23, 2015, the district’s investigator observed petitioner travel to and from the out-of-district premises, but did not observe petitioner’s son exit the Uniondale address.  Respondent’s investigator confirmed that on February 23, 2015, petitioner’s son had reported to school and was in his assigned class.  On May 27, 2015, the investigator observed petitioner and her son arrive at the Uniondale address at approximately 9:24 a.m. and thereafter observed petitioner’s son being dropped off at school.

While the surveillance evidence is not overwhelming, petitioner’s son was observed only once at the Uniondale address, arriving at approximately 9:30 a.m., after which he was dropped off at school.  Petitioner has failed to refute such evidence.  In addition, petitioner does not refute respondent’s address verification evidence which provides that her name is on the lease for the out-of-district premises and that she moved into the premises on February 1, 2014.  Nor does she dispute respondent’s assertions about the statements she made at the residency review hearing regarding her living arrangements.

Based on the record before me, I am unable to determine petitioner’s actual physical presence and intention to reside at the Uniondale address.  I find, therefore, that petitioner has failed to meet her burden of proving that she and her son reside in respondent’s district.  Accordingly, I cannot conclude that respondent’s determination that petitioner and her son were not district residents was arbitrary and capricious.

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

THE APPEAL IS DISMISSED.

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