Appeal of CHIQUETTA FISHER, on behalf of her daughter NYLAH BENJAMIN, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 17,349

(March 13, 2018)

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

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

The student was first enrolled in respondent’s district for the 2013-2014 school year.  In February 2017, the district received information from an anonymous source indicating that petitioner and the student did not reside at the address of record within respondent’s district and, instead, resided at an address in Roosevelt, New York (the “out-of-district address”).  Thereafter, the district conducted an investigation which included surveillance of the out-of-district address.  An investigator observed the student exiting the out-of-district residence on three weekday mornings during February and March 2017. 

By letter dated March 1, 2017, respondent’s director of grants, funded programs, and student achievement (“director”) informed petitioner that the district had reason to believe that she and the student did not reside within respondent’s district.

On March 6, 2017, the director, petitioner, and a district employee within respondent’s central registry office met to discuss the student’s residency.  Petitioner represented that her mother resided at the out-of-district address and that her mother served as a daycare provider for the student.  Petitioner admitted that she stayed overnight at the out-of-district address on the three dates on which the district conducted surveillance.  Petitioner further explained that she did so to access the internet at the out-of-district address in order to submit job applications.  Petitioner provided a bank statement as proof of her physical presence at the in-district address.

Shortly after the March 6, 2017 meeting, petitioner executed “notarized affidavits” whereby she swore that she resided within the district.  Respondent thereafter permitted the student to attend its schools.

The district continued its residency investigation and conducted additional surveillance on three weekday mornings in April 2017.  On April 3, April 6, and April 20, 2017 at approximately 8:50 a.m., an investigator observed petitioner and the student exiting the out-of-district address.  On the morning of April 3, an investigator also surveilled the in-district address, but did not observe anyone entering or exiting that residence.

By letter dated April 21, 2017, the director indicated that surveillance evidence had confirmed that petitioner and the student resided at the out-of-district address, and that the student would be excluded from respondent’s schools as of April 28, 2017.

On April 27, 2017, petitioner spoke with the director.  The director explained the results of the additional surveillance to petitioner.  According to the record, petitioner then asked if the director could “help her out” by allowing the student to remain enrolled within the district until the end of the 2016-2017 school year.  The district acceded to this request.

By letter dated July 26, 2017, the director indicated that the student would be excluded from respondent’s schools as of August 1, 2017.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 28, 2017.

Petitioner contends that she and the student reside at the in-district address.  Petitioner asserts that her mother has been providing daycare services to the student “for the past 2 years,” and that the student goes to the out-of-district address “before or after school.”  Petitioner further submits that she presented evidence to the district demonstrating “a record of unemployment and hardship,” and that this explains why the student “received services overnight to be put on the school bus the following day.”  Petitioner requests a determination that the student is a district resident entitled to attend respondent’s schools without the payment of tuition.

Respondent contends that the appeal must be dismissed for lack of proper service and maintains that its residency determination was rational.

First, I will address respondent’s claim regarding service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Further, section 275.9(a) requires that the affidavit of service be in substantially the form set forth in that section.  The record indicates that, on August 16, 2017, petitioner initially served a copy of the notice of petition and a request to waive the filing fee associated with an appeal pursuant to Education Law §310 on respondent.  This submission did not include the petition or an affidavit of service.  The record indicates that petitioner subsequently served a copy of the petition on August 22, 2017 on respondent which, according to respondent, also lacked an affidavit of service.  The petition filed with my Office of Counsel contained an affidavit of service reflecting a service date of August 16, 2017.  However, this affidavit does not identify what, if any, documents were served on August 16, 2017.  Petitioner submits no reply or other evidence to refute respondent’s claim that service was not properly effectuated.  Therefore, as the affidavit of service submitted by petitioner, itself, is defective and the record before me does not indicate that respondent was ever served with a copy of the petition in this matter, I cannot conclude on this record that service was properly effectuated upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Consequently, the appeal must be dismissed (see e.g., Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).

Even if the appeal were not dismissed on procedural grounds, 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 has failed to meet her burden of proving that she resides at the in-district address.  The only evidence submitted by petitioner together with her petition is a copy of an email from the New York State Department of Labor dated July 16, 2017 indicating that, as of the date of the letter, petitioner had received the maximum 26 weeks of unemployment insurance benefits.  This email does not list a physical address for petitioner and therefore is not relevant to the issue of petitioner’s physical presence within respondent’s district.  The record also contains a copy of a bank statement for “January 28, 2017 through February 27, 2017” and a New York State driver’s license issued on March 30, 2017 bearing petitioner’s mother’s in-district address.  However, on this record, I do not find that these documents overcome respondent’s surveillance evidence.

Petitioner also contends that the student was present at the out-of-district address because her mother “has been providing daycare services” to the student before and after school for the past two years.  This explanation, however, does not sufficiently explain or rebut respondent’s surveillance evidence.  As noted above, an investigator observed both petitioner and the student leaving the out-of-district address at approximately 8:50 a.m. on April 3, April 6, and April 20, 2017.  On two of these dates, petitioner and the student drove to an intersection in Freeport, New York where the student subsequently boarded a school bus.  While petitioner generally alleges that the student receives care at the out-of-district address before school, this assertion does not sufficiently rebut or explain respondent’s surveillance evidence during which petitioner and the student were present at the out-of-district address on the three dates of surveillance in April 2017.  Additionally, I find it significant that, when presented with the additional surveillance evidence at the April 27, 2017 residency meeting, the record indicates that petitioner responded by asking if the director could “help her out” by allowing the student to remain enrolled within the district until the end of the 2016-2017 school year.[1]  This statement is not consistent with petitioner’s position on appeal that she and the student reside within respondent’s district.

In conclusion, although respondent’s surveillance evidence is not overwhelming, petitioner has failed to carry her burden of proving that she physically resides within respondent’s district.  I have considered the parties’ remaining contentions and find them to be without merit.

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