Appeal of MICHAEL WYCHE, on behalf of his children MICAH, MEKHI, and CHRISTIAN, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 17,136

(July 31, 2017)

Ingerman Smith, LLP, attorneys for respondent, Michael G. McAlvin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District (“respondent”) that his children (“the students”) are not district residents.  The appeal must be dismissed.

Petitioner states that his children reside with him and their grandfather within the district.  Respondent asserts that the district had become aware that petitioner and his children did not reside at the address of record within the district (“Freeport address”), but rather, at a residence in Hempstead (“Hempstead address”), outside the district.  Respondent hired a private investigative firm to conduct surveillance at both addresses.  The surveillance was conducted on various days in January and February 2017.  The investigators who conducted the surveillance did not observe petitioner’s children at the Freeport address during the surveillance, but did observe them exit the residence at the Hempstead address on two school-day mornings and enter a vehicle registered to petitioner’s father.  The investigators observed the vehicle registered to petitioner’s father at the Hempstead address on multiple occasions.  In addition, one of the investigators researched records maintained by the New York State Department of Motor Vehicles.  In his affidavit, he states that upon review of such records he determined that the “mother of petitioner’s children has a driver’s license listing the Hempstead residence as her address,” and, in his report, he indicates that he confirmed that she resided at that address.

By letter dated January 19, 2017, the district’s director of grants, funded programs and student achievement (“director”) advised petitioner that he had reason to believe, based on home visits and surveillance, that petitioner’s family did not reside within the district, and therefore, petitioner’s children were not legally entitled to attend the district’s public schools.  Petitioner was offered the opportunity to submit documentation to support his claim that his family resided within the district.  On January 30, 2017, the director met with petitioner and informed him that the district would review the situation further.  In a February 14, 2017 telephone conversation, the director advised petitioner that the district would uphold its initial determination that petitioner’s family did not reside within the district and that his children would be excluded from attendance at the district’s public schools.  Petitioner indicated the he intended to appeal the district’s determination.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 5, 2017.

Petitioner claims that he and his children reside within respondent’s district.

Respondent asserts that petitioner has failed to state a claim upon which relief may be granted.  Respondent further asserts that petitioner offers no evidence of his residency at the Freeport address and has failed to demonstrate that he and his children are residents of the district through their physical presence and intent to permanently reside in the district.  In addition, respondent asserts that petitioner does not set forth a clear and concise statement of his claim and that his papers do not meet the pleading requirements set forth in the Commissioner’s regulations.

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).

On this record, petitioner has failed to meet his burden of proving that he and his children reside at the Freeport address.  The petition consists of only conclusory allegations regarding petitioner and his children’s current living arrangements.  Petitioner has produced no documentary evidence, such as a driver’s license, voter registration, a lease or statement from a landlord, or bills bearing the Freeport address that would indicate that petitioner and the students actually reside there (see Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807).  In addition, the petition is completely silent about the students’ mother or mothers and provides no explanation of the custodial arrangement and no allegation the petitioner is the parent exercising parental custody and control over the students.

Moreover, petitioner’s allegations do not overcome respondent’s surveillance.  While the surveillance evidence is not overwhelming, petitioner’s children were observed exiting the residence at the Hempstead address on two school-day mornings and entering a vehicle registered to petitioner’s father.  Additionally, on one occasion, other adults and children were observed leaving the Freeport address.  I also note that respondent alleges in its answer that the students reside at the Hempstead address with the mother of one of the students.  Petitioner has not submitted a reply and has submitted no evidence to rebut or otherwise explain respondent’s evidence (see Appeal of Morgan, 55 Ed Dept Rep, Decision No. 16,869). 

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on behalf of his children at any time, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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