Appeal of S.A., on behalf of his children M.A. and T.A., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,860

(June 26, 2020)

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

TAHOE., Interim Commissioner.--Petitioner appeals from the determination of the Board of Education of the Baldwin Union Free Central School District (“respondent”) that his children, M.A. and T.A. (“the students”), are not residents of respondent’s district and, therefore, not entitled to attend respondent’s schools without payment of tuition.  The appeal must be dismissed.

On or about August 29, 2019, petitioner submitted a form entitled “[r]egistration [q]uestionnaire” on behalf of each of the students, seeking to enroll them in respondent’s schools.  On the forms, petitioner indicated that the students resided with him, his fiancée, and the fiancée’s grandmother at a residence within respondent’s district (the “in-district address”).  Petitioner additionally submitted a copy of a temporary driver’s license, paystub, and bank statement, all bearing the in-district address, as well as proof that his fiancée’s grandmother owned the in-district address.

Based on petitioner’s submissions, the district enrolled the students for the 2019-2020 school year.  Subsequently, however, the district reviewed title records and discovered that petitioner owned a residence in a neighboring school district (the “out-of-district address”).[1]  The district commenced a residency investigation, which entailed two investigators simultaneously surveilling the in-district and out-of-district addresses on seven school days between September 24, 2019 and October 11, 2019, commencing at 5:15 a.m.  On five of the seven days, the students were observed exiting the out-of-district address with petitioner between 7:07 and 7:15 a.m. and departing in petitioner’s vehicle.  In addition, on three of those five days that the students were observed departing the out-of-district address, the students were subsequently observed arriving at the in-district address, whereby student M.A. walked from petitioner’s vehicle to a nearby bus stop, and student T.A. remained in the vehicle as it picked up another child from the in-district address and then departed.  On the remaining two days, the students were not observed at either address.

By letter dated October 17, 2019, the district’s director of pupil services (“director”) notified petitioner that the district had reason to believe that the students were not district residents.  The director advised petitioner that, unless petitioner presented documentary evidence establishing the students’ residence within the district, the students would be excluded from the district’s schools effective October 31, 2019.

On October 24, 2019, the district again surveilled both the in-district and the out-of-district addresses before school.  Both petitioner and the students were observed arriving at the in-district address in petitioner’s vehicle at 7:26 a.m.; prior to that time, petitioner was observed departing the out-of-district address in his vehicle at approximately 7:10 a.m.

Also, on October 24, 2019, petitioner and his fiancée met with the director to discuss the students’ residency.  According to the director’s affidavit, petitioner claimed that the students resided at the in-district address and did “not sleep anywhere else.”  Petitioner additionally indicated that, although he owned the out-of-district address, it was his parents’ residence.  The director indicates on appeal that, after she presented petitioner with the results of the district’s surveillance, petitioner asserted that he “owns a racing company and is in and out of town and that the students needed to get acclimated to living in New York,” having recently relocated from Virginia.  According to her affidavit, the director concluded after her meeting with petitioner that his “generalized reasons regarding being out of town [were] insufficient to refute the extensive surveillance.”

By letter dated October 24, 2019, the director informed petitioner of her determination that the students were not district residents and, therefore, would be excluded from the district’s schools effective October 31, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 6, 2019.

Petitioner argues that the students reside with him at the in-district address and are thus entitled to attend respondent’s schools.  Petitioner further indicates that, although the students “stayed with [his] mother” at the out-of-district address “from time to time during September 2019 through October 2019,” the “justification” for this arrangement was that he was “trying to create a comfortable living space and fully transition” to the in-district address.  For relief, petitioner seeks a determination that the students are district residents entitled to attend respondent’s schools tuition-free.

Respondent argues that its determination was neither arbitrary nor capricious and that petitioner has failed to establish that he and the students are district residents.

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).

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).

On this record, I find that petitioner has failed to satisfy his burden of proving that the students are district residents.  In his petition, petitioner claims that the students reside with him at the in-district address but “stayed” at the out-of-district address “from time to time” between September and October 2019.  The sole proof that petitioner submits in support of this contention is a notarized letter from his fiancée, asserting that petitioner and the students reside with her and her grandmother at the in-district address but “were house hopping” during September and October 2019.

According to respondent, however, petitioner previously denied that the students ever stayed at the out-of-district address.  As indicated above, respondent’s director indicates in her affidavit that, during her October 24, 2019 meeting with petitioner, petitioner asserted that the students did “not sleep anywhere else” besides the in-district address.  Moreover, although petitioner identifies the out-of-district address as his mother’s home, respondent asserts that, based on its review of title records and petitioner’s own admission to the director during the October 24 meeting, petitioner owns the deed to the out-of-district address.

Respondent also submits the results of its surveillance, which revealed that petitioner or the students exited the out-of-district address and departed in petitioner’s vehicle shortly after 7:00 a.m. on six of the eight school days that surveillance occurred between September and October 2019.  Notably, the students were not observed entering or exiting the in-district address on any of the eight days that the district conducted surveillance.  Indeed, the students were observed in the vicinity of the in-district address on only half the days of surveillance, when they were seen arriving in petitioner’s vehicle.  Although the surveillance evidence is not overwhelming, it further supports respondent’s conclusion that the students do not reside at the in-district address.

Other than his assertion in the petition that the students occasionally stayed with his mother, petitioner has not submitted a reply or any other evidence to refute respondent’s allegations and surveillance evidence (see Appeal of Brown, 54 Ed Dept Rep, Decision No. 16,644; Appeal of Gomes, 53 id., Decision No. 16,535).  Therefore, on the record before me, I cannot find that respondent’s determination that the students are not district residents was arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on the students’ 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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