Appeal of D.R., on behalf of her children L.R. and L.R., from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 17,444

(July 16, 2018)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

Elia, Commissioner.--Petitioner challenges the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that her children (the “students”), are not district residents.  The appeal must be dismissed.

Petitioner enrolled the students in respondent’s district in or about September 2011, identifying an address located within the district’s geographical boundaries as her residence (the “in-district address”).  As part of the registration process, petitioner submitted an affidavit from the landlord of the in-district address in which the landlord attested that petitioner had resided there since July 15, 2011.

In the fall of 2015, petitioner informed the principal of Robert Frost Middle School that the students would not be utilizing district transportation due to childcare needs; instead, petitioner asserted that the students would be walking to petitioner’s older daughter’s residence, which is located outside of respondent’s district (the “out-of-district address”).

On October 7, 2015, respondent’s attendance teacher and manager of the office of central registration (“attendance teacher”) spoke with petitioner by telephone.  Petitioner told the attendance teacher that she brought the students to the out-of-district address every morning because she had to leave early for work.  Petitioner claimed that she left the in-district address with the students between 6:00 a.m. and 6:30 a.m. each day.  Petitioner further indicated that she picked the students up from the out-of-district address after work.  Based upon these representations, respondent allowed the students to continue attending its schools as district residents.

In May 2016, the attendance teacher received an anonymous tip that the students did not reside at the in-district address.  The attendance teacher proceeded to conduct surveillance of the in-district address on four consecutive school mornings in May 2016 between 5:45 and 6:45 a.m.  Petitioner and the students were not seen during this surveillance.  School security and a bus aide subsequently reported to the attendance teacher that the students “were seen walking to school from the direction of the Wyandanch side of Robert Frost Middle School” on those dates.[1]

In September 2016, petitioner again notified the district that the students would not be taking the bus, and that they would walk to the out-of-district address after school for childcare.  The attendance teacher called petitioner in September 2016 to inquire if her living situation had changed.  Petitioner indicated that it had not.  The attendance teacher asked if he could conduct a home visit at the in-district address, and petitioner stated that she was not willing to permit such a visit.  Petitioner also represented “that she now has to leave at 5:30 a.m.” for work.

The attendance teacher conducted surveillance at the in-district address from September 28 through September 30, 2016 from 5:00 a.m. to 6:30 a.m.; on October 27, 2016 from 5:00 a.m. to 6:30 a.m.; and on December 7 and 8, 2016 from 5:00 a.m. to 6:00 a.m.  On each date, the attendance teacher did not observe petitioner or the students at the in-district address at any time during the surveillance, and the students were present at school.

On December 8, 2016, the attendance teacher called petitioner and asked if her living circumstances had changed.  Petitioner indicated that they had not, asserting that she continued to drive the students from the in-district address to the out-of-district address at 5:30 a.m. each day.

The attendance teacher proceeded to conduct 15 additional dates of surveillance of the in-district address on February 7 and 8, April 4 and 5, 2017 between 5:00 a.m. and 6:15 a.m.; on May 31, June 1, 2, 5, and 6, 2017 between 5:00 a.m. and 7:00 a.m.; and on September 6, 7, 8, 11, 12, and 14, 2017 between 5:00 a.m. and 6:45 a.m.  The attendance teacher did not observe petitioner or the students at the in-district address at any time during the surveillance.  On all of these dates, the record reflects that the students were present at school.  The attendance teacher further observed the students arriving by foot “from the [out-of-district] side” of the school on each date.

On or about September 11, 2017, the attendance teacher received an anonymous tip that petitioner now resided at a different out-of-district location in Amityville, New York. 

In a letter dated September 25, 2017, the attendance teacher informed petitioner of the district’s determination that her children did not reside within the district.  This letter indicated that the students would be excluded from respondent’s schools as of October 6, 2017 unless petitioner appealed the attendance teacher’s determination to respondent.

The attendance teacher spoke with petitioner by telephone on September 27, 2017.  Petitioner again asserted that she leaves the in-district house early in the morning.  Additionally, while petitioner initially denied that she knew anyone who lived in Amityville, petitioner eventually acknowledged during the phone call that she stays with her parents, who live in Amityville.

In a letter dated October 3, 2017, petitioner appealed the district’s residency determination to respondent.  At a meeting on October 10, 2017, respondent reviewed petitioner’s appeal.  By letter dated October 11, 2017, respondent denied petitioner’s appeal and notified petitioner that the students would be excluded from its schools on October 20, 2017.[2]  This appeal ensued.  Petitioner’s request for interim relief was denied on November 1, 2017.

Petitioner asserts that she and the students have resided at the in-district address since September 2010.  Petitioner asserts that she works two jobs and admits that, due to childcare needs, her children “stay out [of] the home 3 to 5 nights out of the week.”  Petitioner seeks a declaration that the students are district residents.

Respondent contends that its decision was rational, that petitioner’s explanations were not credible, and that petitioner has failed to meet her burden of proving that she resides within respondent’s district.

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).

Here, petitioner has failed to meet her burden of proving that the students reside within respondent’s district.  Petitioner submits documentary evidence in support of her claim of residency which bears the in-district address and is addressed to her or one of the students.  This evidence consists of: (1) a letter from the Social Security Administration dated October 11, 2017 regarding benefits for one of the students; (2) a letter from a credit card company dated October 2, 2017; (3) a wage statement from the State of New York for the pay period starting September 14, 2017 and ending September 27, 2017; (4) a photograph of a UPS package; (5) a mailed advertisement; (6) a medical bill; and (7) a payment receipt for self-storage paid on October 14, 2017.[3]  While these documents are entitled to some weight, they do not overcome respondent’s surveillance evidence which directly contradicts petitioner’s contention that she and the students depart from the in-district address between 5:30 a.m. and 6:30 a.m. each day due to her early morning schedule (Appeal of Guo, 51 Ed Dept Rep, Decision No. 16,312; Appeal of Stewart, 47 id. 92, Decision No. 15,637).  Other than asserting that she works “two jobs,” petitioner has not refuted or explained respondent’s surveillance evidence on appeal.

The record also contains other evidence which impugns petitioner’s credibility.  Specifically, petitioner refused to permit the attendance teacher to conduct a home visit of the in-district address on at least three occasions.  Also, petitioner told the attendance teacher that she did not “know anybody in Amityville” when, in fact, petitioner’s parents lived in Amityville.  Respondent further submits correspondence from the New York State Office of Temporary and Disability Assistance dated August 19, 2015 addressed to one of the students at the out-of-district address.  This raises the question of why petitioner identified the in-district address for one of the students for government benefits purposes but identified the out-of-district residence for another student to receive government benefits.

Although the petition must be dismissed, I note that petitioner has the right to reapply for admission to respondent’s schools on behalf of her children at any time, particularly if her living situation has changed, and to submit any documentary evidence for respondent’s consideration pursuant to 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

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