Appeal of KERRI CARTER, on behalf of her daughter KAYLEE, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,112

(June 28, 2017)

Bond, Schoeneck & King, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel

ELIA, Commissioner.-- Petitioner appeals the decision of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her daughter (“the student”) is not a resident of the district and is, therefore, not entitled to attend its schools.  The appeal must be dismissed.

According to the petition, the student has attended the district’s schools for approximately 10 years.[1]  In November 2016, the district received an anonymous phone call that the student no longer resided in the district, and now lived out-of-State in Connecticut.  In December 2016, one of the district’s attendance teachers visited the in-district address that was listed in the student’s records and reported that the residence was vacant.  The attendance teacher then contacted the United States Postal Service (“USPS”), which confirmed that at that time (March 2, 2017), petitioner’s address had been changed to an address in Connecticut.  The attendance teacher was further able to ascertain from a search of public records that the in-district address listed in the student’s records was sold on November 16, 2016. 

By letter dated March 13, 2017, respondent’s director of pupil personnel services (“director”) informed petitioner that she had received information that the student was no longer a resident of the district, and requested that petitioner submit evidence to confirm her residency in the district by March 27, 2017.    Petitioner submitted documents to the director on March 22, 2017, which bore a different address within the district, which is a residence belonging to petitioner’s father.  In this appeal, petitioner asserts that she and her daughter currently reside at this new address (“the in-district address”).  The documents submitted to the director included a medical bill, a utilities bill (addressed to petitioner’s father and stepmother), car insurance identification cards, car registration cards, a bank statement, and a copy of petitioner’s driver’s license, which had recently expired.  Each of those documents bear the in-district address.  The copies of petitioner’s driver’s license and car registration submitted with the petition indicate that those documents were issued shortly before the March 13, 2017 letter was sent. 

Petitioner met with the director on March 22, 2017, and explained that the address reflected on her license was her father’s house and that she and the student lived there.  The district provided petitioner with “host family” forms that are used by the district when a family moves in with friends or relatives who live in the district.  Petitioner attempted to turn the completed forms in to the district on April 6, 2017, but the district did not accept them because the deadline for turning the forms in had elapsed.[2]  The district also received corroboration from the student’s grandfather and a district employee who knows the family, that petitioner lived in Connecticut. 

By letter dated March 31, 2017, the director informed petitioner that it was the district’s determination that the student was not a resident of the district and that the student would be excluded from the district’s schools as of April 21, 2017. 

Despite this letter, the district continued to try to verify petitioner’s claim that she lived in the district with her father.  The attendance officer observed petitioner’s father’s address on two mornings in April 2017 and did not observe the student leave the premises on either day, although the student attended school on both days and arrived at school during the time that the attendance officer was conducting surveillance of the in-district address.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 25, 2017. 

Petitioner alleges that she and the student live within the district and intend to reside there “indefinitely.”  Petitioner further contends that the documentation she provided to the district on March 22, 2017, proves the student’s “continued residency” in the district, and that the host family forms given to petitioner did not have a specified due date.

Respondent asserts that petitioner has not met her burden of proof, nor has she rebutted the district’s evidence that she does not reside in the district.  Respondent contends that petitioner’s statement in the host family forms that she lives with her father because she is separated from her husband, is inconsistent with other evidence she has presented, including her submission of her husband’s car insurance identification forms bearing her father’s in-district address, effective April 13, 2017. 

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).

In this case, the record contains very little information regarding the circumstances surrounding the family’s move from the in-district address listed in the student’s records.  The petition does not explain any of the circumstances regarding the move or reasons for it, nor does it rebut the district’s evidence, including the surveillance report, the information obtained from the USPS, or the corroboration by two individuals, including the student’s grandfather, that the student resides in Connecticut.  Petitioner is correct that the host family forms contained no due date and the district should have accepted those forms.  However, those forms, which are attached to the petition, do not sufficiently rebut respondent’s allegations.  Although petitioner claims in her host family forms that she lives with her father because she separated from her husband, there is no other evidence of this in the record, nor does she mention this fact in the petition.  Moreover, this allegation, in and of itself, is not enough to explain the surveillance evidence, during which petitioner and the student were not observed at the in-district address, and the other evidence obtained by the district that petitioner lives in Connecticut.  While respondent’s surveillance evidence is not compelling, it is corroborated by statements of two individuals and the evidence from the USPS that petitioner’s address had changed from her former address within the district to the Connecticut address.  On appeal, petitioner has not submitted a reply and does not even address the district’s allegation that she lives in Connecticut.  Based on this record, in which petitioner has failed to provide any evidence to explain respondent’s evidence that she resides in Connecticut, I cannot find that petitioner has met her burden of proof or that the district’s decision to exclude the student was arbitrary and capricious (see e.g., Appeal of T.R., 56 Ed Dept Rep, Decision No. 16,981; Appeal of a Student with a Disability, 53 id., Decision No. 16,552).

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the student 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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