Appeal of JOHN E. CONSTANTINO JR., on behalf of KUN DONG, from action of the Board of Education of the Sewanhaka Central High School District and Administrative Review Officer Karla Guerra, Esq., regarding transportation.

Decision No. 17,764

(October 10, 2019)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent Board of Education of the Sewanhaka Central High School District

Guerra Law Office, attorneys for respondent Karla Guerra, Esq., Karla A. Guerra, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Sewanhaka Central High School District (“respondent board”) and Administrative Review Officer Karla Guerra, Esq. (“respondent Guerra”), to deny Kun Dong (“the student”) transportation to a nonpublic school during the 2018-2019 school year.  The appeal must be dismissed.

The record indicates that the student, a citizen of the People’s Republic of China, moved in with petitioner and his family in August 2017 pursuant to a Class F-1 Visa (“F-1 Visa”).  An F-1 Visa is issued to citizens of foreign countries who wish to enter the United States to attend certain schools, in this case St. Mary’s High School, a private school located in Manhasset, New York (“the nonpublic school”).

On April 9, 2018, petitioner sought to register the student in respondent board’s district (“the district”) for the purpose of receiving school bus transportation, for the student to the nonpublic school, asserting that he was a person in parental relation to the student who lived with him at an address located within the district (“in-district address”).  Attached to the registration form and application for transportation, petitioner included a copy of his driver’s license bearing the in-district address, a mortgage statement, a statement of school taxes addressed to petitioner and his wife at the in-district address, and the student’s F-1 Visa.

By letter dated April 17, 2018, the administrative assistant to the superintendent denied petitioner’s request on the basis that the student was not a resident of the district.  The letter stated that the basis for the determination was “[p]arental [r]esidence [o]ut-of-[d]istrict” and “[n]o [b]ona [f]ide [r]elinquishment of [c]are, [c]ustody [and] [c]ontrol of the [s]tudent.”  The letter stated that petitioner could appeal the determination to the district’s “Administrative Review Officer.”  Petitioner appealed the determination by letter dated April 26, 2018.

By letter dated May 5, 2018, respondent Guerra wrote to petitioner and stated that she had been appointed by respondent board as the district’s administrative review officer to hear residency appeals.

A formal residency hearing presided over by respondent Guerra was held on May 14, 2018.  Petitioner testified at the hearing and submitted evidence regarding the student’s residency, including an unsworn statement from the student dated May 13, 2018.  In this statement, the student indicated that she lived at the in-district address with petitioner and his family and “will be there until such time that [she] receive[s] [her] high school diploma and perhaps beyond ....”  Petitioner also submitted a replacement debit card addressed to the student at the in-district address and a form appointing petitioner guardian of the student, effective from April 9, 2018, until April 9, 2019, which gave him the authority “to make all decisions related to the child’s custody and care.”[1]

In a written decision dated June 28, 2018, respondent Guerra concluded that the student was not a resident of the district and, therefore, not eligible for transportation services.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 6, 2018.

Petitioner asserts that the student is a resident of the district.  Petitioner also argues that respondent Guerra was not impartial, spent “over thirty minutes interrogating [him],” and issued a decision contrary to relevant legal authority.  Petitioner requests a finding that the student is a resident of the district, and, therefore, entitled to transportation.  Petitioner also seeks reimbursement for the transportation expenses that he has incurred transporting the student to the nonpublic school retroactive to the date of his original request for transportation.  Petitioner additionally requests an apology from respondent Guerra and that she “be reprimanded for ignoring the material facts and cited/disqualified for not acting impartially and/or violating the American Arbitration Association’s Code of Ethics.”

Respondent board argues that the appeal must be dismissed because its determination is rational and supported by the record.  It also argues that to the extent petitioner is seeking a monetary award or damages, the appeal must be dismissed because the Commissioner lacks jurisdiction to grant such relief.

Respondent Guerra argues that the appeal must be dismissed because her determination was supported by the record and, thus, not arbitrary, capricious or unreasonable.

I must first address several preliminary matters.  To the extent petitioner seeks reimbursement for costs incurred in transporting the student to the nonpublic school, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888; see also Appeal of R.H., 56 id., Decision No. 17,117).

To the extent petitioner seeks an order publicly sanctioning, censuring or reprimanding respondent Guerra, there is no provision of the Education Law that authorizes the censure or reprimand of a board of education, its members, district staff or individuals acting at the board’s behest (see Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003; Appeal of Formato, 55 id., Decision No. 16,855; Appeal of Coleman, et al., 42 id. 256, Decision No. 14,845).  Similarly, to the extent petitioner seeks an apology, the Commissioner lacks the authority to order the board of education, a school district employee or an individual engaged by the school district to issue an apology (see Appeal of Zwanka, 56 Ed Dept Rep., Decision No. 17,051; Appeal of L.D., 55 id., Decision No. 16,864; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773).

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Transportation to a nonpublic school must be requested on a yearly basis and no later than the first day of April preceding the next school year (Education Law §3635[2]).  Since the 2018-2019 school year has ended, the appeal is moot (see Education Law §3635[2]; Appeal of Destrat, 58 Ed Dept Rep, Decision No 17,533; Appeal of Garazha, 55 id., Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

However, even if the appeal were not dismissed as moot, it would be dismissed on the merits.  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has failed to meet his burden of establishing that the student’s parents effectuated a total and permanent transfer of custody and control over the student from her parents to petitioner.  The record supports respondent Guerra’s determination that the student’s parents only temporarily transferred guardianship to petitioner.  On its face, the temporary guardianship agreement indicates that it is temporary (i.e. effective from April 9, 2018, through April 9, 2019) and, thus, does not constitute a total or permanent transfer of custody or control to petitioner (see Appeal of Esposito, 57 Ed Dept Rep, Decision No. 17,415; Appeal of Botsakos, 56 id., Decision No. 17,093; Appeal of C.B.-M., 55 id., Decision No. 16,844).  The registration documents signed by petitioner also indicate that the student will continue to see her parents over the summer and petitioner testified at the hearing that the student went on vacation over winter break during the 2017-2018 school year to “visit her parents.”

Moreover, even assuming, arguendo, that petitioner had proven a complete transfer of custody and control to him, petitioner has not demonstrated that the student intends to remain in respondent’s district within the meaning of Education Law §3202(1).  As part of the registration application, petitioner attached a copy of the student’s F-1 Visa.  This visa was issued on November 21, 2017, and indicates a “program end date” of June 30, 2019.  Pursuant to 8 USC §1101(a)(15)(F)(i), the student’s receipt of an F-1 Visa means that she is:

an alien having a residence in a foreign country which [s]he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 1184 (l) of this title at an established college, university, seminary, conservatory, academic high school, elementary school or other academic institution or in an accredited language training program in the United States ... approved by the Attorney General after consultation with the Secretary of Education.

Although the Commissioner has held that a school district may not impose an irrebuttable presumption of residency based on a student’s visa status, such status is nevertheless relevant to a student’s intent to remain in the United States (see e.g. Appeal of Esposito, 57 Ed Dept Rep, Decision No. 17,415; Appeal of Plata, 40 id. 552, Decision No. 14,555).  As indicated above, an F-1 visa is intended for one who “seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study.”  Thus, the student’s visa status does not support a finding that the student intends to remain within respondent’s district.

I further find that the record raises a substantial question as to whether the student’s parents continue to provide her with financial support.  The residency hearing transcript indicates that petitioner refused to answer questions about whether he received compensation for the student living with him or whether the student’s parents provided financial compensation to support the student in his home.[2]  Petitioner testified that he did not know if the student’s parents provided her directly with money.[3]  Petitioner also admitted that he does not pay the student’s nonpublic school tuition and offers no evidence that he pays for the student’s day-to-day living expenses.  Moreover, the guardianship document indicates that the parents have agreed to remain financially responsible for all health care decisions.  Thus, while respondent Guerra did not make any direct findings on this issue, the record strongly suggests that the student’s parents continue to provide her with financial support.  This further supports a determination that the student’s parents have not effectuated a complete transfer of custody and control of the student to petitioner (see Appeal of Wu, 51 Ed Dept Rep, 16,300; Appeal of Cheng, 47 id. 366, Decision No. 15,726).

The appeals relied upon by petitioner for the proposition that the student’s temporary visa status alone is not dispositive of the student’s residency are distinguishable from the instant appeal, where respondent applied the two-part residency test as described above (see Appeal of Ramirez, 40 Ed Dept Rep 163, Decision No. 14,449 [petitioner adequately rebutted the presumption of parental residence where his nephews fled terrorism in their home country of Colombia; arrived with petitioner, their uncle, on B-1 “pleasure” visas; and intended to apply for asylum following expiration of the visas]; Appeal of Plata, 40 id. 552, Decision No. 14,555 [appeal remanded where district erroneously concluded that a parent’s entry into the United States on a nonimmigrant business/pleasure visa precluded a finding of residency status; district directed to apply the traditional two-part test for residency on remand]).

I must also reject petitioner’s challenges to the manner in which respondent Guerra conducted the hearing.  First, petitioner alleges that respondent Guerra was not impartial.  There is a presumption of honesty and integrity in those serving as adjudicators and petitioner has the burden of rebutting this presumption (Appeal of a Student with a Disability, 49 Ed Dept Rep 161, Decision No. 15,986; Application to Reopen the Appeal of R.S., 38 id. 419, Decision No. 14,065).  Petitioner objects to respondent Guerra’s questions about, for example, his finances and the student’s health insurance, alleging that such inquiries are irrelevant to the student’s residency.  Petitioner has not demonstrated that respondent Guerra’s questioning was improper.  The disputed issue in this appeal is whether petitioner has rebutted the presumption of parental guardianship.  Accordingly, the extent to which the student’s parents provide her with financial support is relevant to such claims, and respondent Guerra acted well within her discretion in seeking to ascertain such information (see e.g. Appeal of Wu, 51 Ed Dept Rep, 16,300; Appeal of Li, 49 id. 289, Decision No. 16,029; Appeal of Cheng, 47 id. 366, Decision No. 15,726).

Second, petitioner submits that it was improper for respondent Guerra to base her decision on petitioner’s conduct or demeanor.  However, respondent Guerra merely found in her decision that petitioner lacked credibility because “his answers were often evasive, misleading, or attempt[ed] to deflect from the fact that his guardianship of the student is temporary ....”  In matters of credibility, I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095).  Here, petitioner has not identified any evidence, let alone clear and convincing evidence, as to why respondent Guerra’s credibility determination was unfounded.  Petitioner merely disagrees with respondent Guerra’s conclusion.  Therefore, I cannot find that respondent Guerra erred in making such a credibility determination.

Thus, based on the evidence in the record before me, I cannot find that respondent board’s determination that the student is not a district resident and, therefore, not entitled to transportation to the nonpublic school to be arbitrary or capricious.  I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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