Appeal of GARY BOOTHE, on behalf of his children JOSHUA and JADA, from action of the Board of Education of the City School District of the City of Mount Vernon regarding attendance zones.

Decision No. 17,210

(October 10, 2017)

Law Office of Christina T. Hall & Associates, PLLC, attorneys for petitioner, Christina T. Hall, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Alessandro Bianchi, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the City School District of the City of Mount Vernon (“respondent”) that his children (“the students”) reside outside the attendance zone of the district’s Lincoln Elementary School (“Lincoln Elementary”).  The appeal must be dismissed.

Petitioner is a resident of respondent’s district.  Prior to the events described in this appeal, the students were registered at an address which is located within the attendance zone for Lincoln Elementary.  According to the record, petitioner and the students’ mother separated sometime in “the latter part of 2015.”

By letter dated December 2, 2015, the Lincoln Elementary School principal (“principal”) informed petitioner of her determination that the students may not reside within the attendance zone for Lincoln Elementary, and that the students would be discharged from school on Monday, December 7, 2015 unless petitioner or the students’ mother submitted proof that they resided within the Lincoln Elementary attendance zone.

On December 4, 2015, petitioner submitted documents in support of the students’ residency, but the record does not reflect what documents petitioner submitted at that time.

 By letters dated January 4 and 7, 2016, respondent’s Director of Student Services (“director”) again requested that petitioner and the students’ mother submit documentation substantiating the students’ residency within the Lincoln Elementary attendance zone.

In response, petitioner submitted a “Renewal Lease Form” executed by petitioner’s father as tenant, and by petitioner as “other occupant,” for an address located within the attendance zone for Lincoln Elementary.  Petitioner also submitted a copy of a lease, which identified the students as other occupants of the residence.  Petitioner also submitted a notarized letter signed by both him and his father indicating that they resided at an address within the Lincoln Elementary attendance zone.  Petitioner also provided a utility bill in petitioner’s name reflecting an address within the Lincoln Elementary attendance zone.

By separate letters dated September 23, 2016, the director informed petitioner of her determination that the students did not reside within the Lincoln Elementary attendance zone, that they would be excluded from Lincoln Elementary after September 23, 2016, and that they were to report to another elementary school on Monday, September 26, 2016.  Petitioner appealed this determination to respondent.

By letter dated September 30, 2016, the director informed petitioner that respondent would review his appeal on October 5, 2016.  The director permitted the students to attend Lincoln Elementary during the pendency of petitioner’s appeal to respondent.

By letter dated October 19, 2016, the district clerk notified petitioner that his appeal to respondent had been denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 2, 2016.

Petitioner maintains that he resides within the Lincoln Elementary attendance zone and that his children are entitled to attend Lincoln Elementary.  Petitioner further argues that the September 23, 2016 exclusion letters from the director were defective because they did not inform him of his right to appeal.  Petitioner also maintains that the letter informing him that respondent affirmed the director’s determination was mailed to an incorrect address.

Respondent contends that petitioner has failed to meet his burden of establishing a clear legal right to the relief requested.  Respondent maintains that its determination was rational and supported by surveillance evidence.

First, petitioner’s arguments regarding notification of his right to appeal the director’s determination to respondent are without merit. The director’s September 23, 2016 exclusion letters informed petitioner and the students’ mother of their right to appeal her determination to respondent, and the record indicates that petitioner, in fact, appealed to respondent on October 4, 2016.[1]  Therefore, I decline to dismiss the appeal based upon petitioner’s claim that respondent failed to provide petitioner with notice of his right to appeal.

Because respondent’s assignment of students to its schools is based on residency, the students’ entitlement to attend Lincoln Elementary rests upon the usual residency requirements of Education Law §3202 (see Appeals of A.S., 57 Ed Dept Rep, Decision No. 17,133).  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.

he 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).

The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

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 support of his claim of residency within the Lincoln Elementary attendance zone, petitioner provides the Renewal Lease Form and lease described above, as well as a notarized letter from petitioner and his father which indicates that petitioner resides within the Lincoln attendance zone.[2]

To support its position, respondent relies on surveillance conducted on May 4, 5, 6, 10 and 17, 2016.  On each of these dates, a man alleged to be petitioner, as well as the students, were observed in the early morning hours at a residence outside of the Lincoln Elementary attendance zone and within the attendance zone of another elementary school.  On those dates, the students were observed being driven by the man toward Lincoln Elementary.  Further, in the early morning hours on May 4 and 5, 2016, an investigator observed no activity at the residence within the Lincoln Elementary attendance zone which petitioner claims to be the location where he and the students reside.  Petitioner submits no reply or other evidence to refute respondent’s surveillance evidence. 

Weighing petitioner’s evidence against respondent’s unrebutted surveillance evidence, I find that petitioner’s evidence does not establish that he or the students reside within the Lincoln Elementary attendance zone.  The lease renewal document and lease submitted by petitioner do not establish his or the students’ physical presence in the district (Appeal of Mays, 55 Ed Dept Rep Rep, Decision 16,822).  Moreover, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).  While respondent’s surveillance evidence is far from overwhelming, petitioner has failed to rebut this evidence in a reply or elsewhere in the record.  Accordingly, I cannot find respondent’s determination arbitrary or capricious. 

 Finally, petitioner contends that the director spoke “unprofessionally” to him during the events described in this appeal.  The director denies these allegations, and there is no evidence in the record supporting petitioner’s allegations.  Therefore, this claim must be rejected.

While the appeal must be dismissed, I note that petitioner may reapply to the district for admission to Lincoln Elementary on his children’s behalf at any time, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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