Appeal of ABDOUL K. SAIBOU, on behalf of his children ABDUL W. ABUBAKAR and LABRAN S. ABUBAKAR, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,715

(July 31, 2019)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the New Rochelle City School District (“Respondent”) that his two children, Abdul W. Abubakar (“A.A.”) and Labran Abubakar (“L.A.”)(collectively “the students”), are not district residents.  The appeal must be dismissed.

On or about July 5, 2018, respondent received a document captioned “Registration Questionnaire for Host Family” from petitioner by which petitioner sought to enroll the students in respondent’s district.  In this document, petitioner identified himself and his three[1] children as the occupants of the in-district address; although the record reflects that petitioner’s fiancée lives at this location, she was not identified in the document.[2]  According to respondent, petitioner submitted the following information in support of his claim of residency within the district:  a copy of an expired automobile registration, a copy of his expired automobile insurance card, a copy of his 2014 tax return and a copy of his New York State driver’s license.  Respondent admitted the students to its schools based on this information.  Shortly thereafter, respondent initiated an investigation into the students’ residency.

An attendance teacher employed by respondent conducted surveillance of the in-district address as well as an address located outside of respondent’s district (“the out-of-district address”).  For approximately six weeks from August 14, 2018 through September 26, 2018, the attendance teacher conducted surveillance on 26 different days.  The attendance teacher conducted surveillance during the early morning at the in-district address, and during the evening at the out-of-district address.  On each date, the attendance teacher observed petitioner’s vehicle[3] at the out-of-district address and did not observe the vehicle at the in-district address.

In a letter dated October 18, 2018, respondent afforded petitioner an opportunity to present evidence of his residency within the district.  In response, petitioner provided a copy of his 2017 tax return, a copy of his New York State driver’s license, and a copy of three bank statements, all of which bore petitioner’s name and the in-district address.

In January 2019, the attendance teacher conducted additional surveillance of the in-district and out-of-district addresses during the early morning hours.  Specifically, on each day, the attendance teacher arrived at the in-district address at approximately 7:00 a.m. and then proceeded to the out-of-district address at approximately 7:20 a.m.  On January 10, 11, 14, and 15, 2019, the attendance teacher observed petitioner and the students leaving the out-of-district address, enter petitioner’s vehicle, and drive to respondent’s high school, where the students were then dropped off.  The attendance teacher took photos of petitioner and the students entering petitioner’s automobile at the out-of-district address.

Although somewhat unclear from the record, it appears that an individual attempted to register a student who is not the subject of this appeal in respondent’s district using the in-district address in or around January 2019.

On January 14, 2019, the attendance teacher visited the in-district address and spoke to the “homeowner.”  The homeowner indicated that she “was unsure” if petitioner lived there and refused to permit the attendance teacher to enter the home in order to conduct an inspection.

In a letter dated January 23, 2019, respondent notified petitioner of its determination that the students did not reside within its school district and would be excluded as of February 6, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 20, 2019.

Petitioner contends that he and the students reside at the in-district address.  Petitioner asserts that he has resided at the in-district address for several years, and that “there was [a] school district visit and [r]esident inspection ... every year since 2015 before the school year start[ed].”  Petitioner also states that he has “always provide[d] the district” with “any documentation” it has requested.

Respondent contends that its determination must be upheld because the evidence in the record, particularly its surveillance evidence, demonstrates that petitioner and the students reside at the out-of-district address.

Education Law §3202(1) provides, in pertinent part:

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; Appeal of Cross, 44 id. 58, Decision No. 15,098).  “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; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109).  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; Appeals of St. Villien, 44 id. 69, Decision No. 15,101).  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 (8 NYCRR §275.10; (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeals of St. Villien, 44 id. 69, Decision No. 15,101).

Petitioner has failed to meet his burden of proving that the students reside at the in-district address.  Together with his appeal, petitioner submits a 2018 W-2 form issued to him at the in-district address, a 2017 federal income tax return (Internal Revenue Service Form 1040A), and a current driver’s license.  While this documentary evidence bearing petitioner’s name and the in-district address is entitled to some weight, it is not dispositive where, as here, contrary surveillance evidence exists (Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,346; Appeal of Stewart, 47 id. 92, Decision No. 15,637).[4]

By contrast, respondent has submitted extensive surveillance evidence consistently showing petitioner and the students and/or petitioner’s vehicle at the out-of-district address.  Additionally, the record shows that the “homeowner” of the in-district address indicated to the attendance teacher on January 14, 2019 that she was “unsure” whether petitioner lived there and refused to let the attendance teacher view the in-district address.  Petitioner does not address this evidence on appeal and did not submit a reply in this matter.  Therefore, based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that the students are not district residents.

Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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