Appeal of SHADIEH RAHIMI, on behalf of her daughter, from action of the Board of Education of the Oyster Bay-East Norwich Central School District regarding residency.

Decision No. 18,044

(September 7, 2021)

Law Offices of Daniel Belano, Esq., attorneys for petitioner, Daniel Belano, Esq., of counsel

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

ROSA, Commissoner.--Petitioner challenges the determination of the Board of Education of the Oyster Bay-East Norwich Central School District (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be dismissed.

In March 2019, petitioner submitted registration documentation to the district.  The student’s address was originally identified as Sunken Orchard Lane in Oyster Bay, New York (the “Sunken Orchard Location”) but later crossed out to indicate another address within respondent’s district.  Respondent enrolled the student in its schools. 

According to respondent, in February 2020, petitioner submitted a “Registration/Residency Verification Form,” indicating that the student was residing at another address within the district (the “Harbor Road Location”).  Petitioner submitted a letter from the owner of the Harbor Road Location, which stated that petitioner and the student were residing at that location.

Thereafter, respondent alleges that it received information that petitioner and the student did not reside within the district but, instead, resided at an address located outside of the district on in Hicksville, New York (the “Hicksville Location”), which is outside of the district’s boundaries.  Respondent notes that the Hicksville Location is listed as petitioner’s address on the student’s birth certificate and is owned by petitioner’s spouse.  Respondent subsequently initiated a residency investigation, which included surveillance of the Hicksville and the Sunken Orchard Locations.  On each day of surveillance, an investigator observed petitioner and the student leave the Hicksville Location, enter a vehicle, and drive to the student’s school within the district.  The investigator also observed that the Sunken Orchard Location was vacant land.

In a letter to petitioner dated March 11, 2020, respondent determined that the student was not a resident of the district because she “ha[d] been observed leaving for school from [the Hicksville Location], not [the Harbor Road Location],” and because the district was “unable to substantiate [petitioner’s] residency ....”  According to respondent, the student was allowed to complete the 2019-2020 school year due to the COVID-19 pandemic.

On May 21, 2020, petitioner met virtually with district representatives to discuss respondent’s residency determination.  Respondent states that petitioner “did not provide a substantive reason as to why [it was] determined on multiple occasions that petitioner was leaving the [Hicksville Location] outside of the School District.” 

In a letter dated May 27, 2020, respondent informed petitioner of its final determination that the student was not a resident of the district and that the student would be excluded from respondent’s schools effective June 17, 2020.

In August 2020, petitioner contacted the district’s registrar, asserting that she and the student had moved to a location within the district.  Petitioner subsequently provided the registrar with a lease agreement for a residence located on High Ridge Lane in Oyster Bay, New York (the “High Ridge Location”).  According to petitioner, the High Ridge Location is owned by petitioner’s employer, who allowed her “to stay .... until ... renovations to [the Sunken Orchard Location] were completed ....”  Respondent investigated and determined that the High Ridge Location was located outside of its boundaries.  After respondent notified petitioner of this fact, petitioner informed respondent that she had broken her lease agreement for the High Ridge Location and signed another lease agreement, again with her employer, for a residence located on Pine Hollow Road in Oyster Bay, New York (the “Pine Hollow Location”).  The record reflects that the Pine Hollow Location is located within the district’s boundaries. 

Respondent continued to suspect that petitioner and the student did not live at the Pine Hollow Location.  As such, it conducted additional surveillance of petitioner and the student.  As during the March 2020 investigation, the student was observed leaving from the Hicksville Location on multiple occasions, and the Sunken Orchard Location continued to be uninhabitable.  A district social worker also visited the Pine Hollow Location.  Respondent notes that the person who answered the door at the Pine Hollow Location indicated to the social worker that neither petitioner nor the student had ever resided therein.[1]

As a result of this information, by letter dated October 5, 2020, respondent again informed petitioner that it had determined the student was not a resident of respondent’s district and would be excluded as of October 16, 2020.  Later that day, petitioner responded to respondent’s registrar by email and stated that she was “ready to move in” to the Sunken Orchard Location.  Upon receipt of this email, respondent again inspected the Sunken Orchard Location and determined that it “was impossible for [petitioner] to reside in the house,” as there “was only a shell of the house” at the location.  As a result, respondent sent a second letter to petitioner, dated October 6, 2020, which denied petitioner’s request to “enroll the student using [the Sunken Orchard Location].”  Respondent explained that it was “unable to substantiate” petitioner’s claim of residency at the Sunken Orchard Location because it was uninhabitable.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 26, 2020.

Petitioner argues that she and the student now reside at the Harbor Road Location, which is located within the district’s boundaries, pending completion of construction at the Sunken Orchard Location.  Petitioner states that her family, including the student, intend to reside at the Sunken Orchard Location as soon as its construction is complete, which she estimates will be “within the next few months.”  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that its determination was rational and is supported by the record.  Respondent also argues that petitioner lacks credibility given her unfounded and shifting explanations of the student’s residency.

I must first address two preliminary matters.  Petitioner submitted a reply in this matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Additionally, petitioner alleges that she was denied the right to submit evidence relevant to her residency pursuant to 8 NYCRR 100.2 (y) when respondent refused to accept certain documentary evidence in or around October 2020.  Respondent denies this allegation but asserts that the documentation offered by petitioner merely established “that the Petitioner would eventually move into her home, not that she was establishing residency in the School District.”  While these limited allegations are insufficient to conclude that petitioner was denied an opportunity to submit information concerning the student’s right to attend, I remind respondent that it should generally accept all information submitted by parents concerning their residency, notwithstanding perceptions of its relevancy or probative value (see 8 NYCRR 100.2 [y]).

Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; 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 the 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 not met her burden of proving that respondent’s determination was arbitrary or capricious.  On appeal, petitioner submits an unsworn, unsigned letter from the owner of the Harbor Road Location, stating that petitioner and the student reside therein.  Petitioner also submits an unsworn, unsigned letter from her spouse, noting that construction on the Sunken Orchard Location is ongoing and anticipated to be finished in a few months.  Petitioner indicates that she and her family, including the student, will reside at the Sunken Orchard Location upon completion of the renovations. 

Respondent asserts that this explanation is insufficient to demonstrate the student’s residency in light of its determination that petitioner lacks 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 such determination is inconsistent with the facts (see Appeal of Collado, 60 Ed Dept Rep, Decision No. 17,918; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).  Here, despite petitioner’s claim that she has resided at several different locations within the district, respondent’s surveillance exclusively portrayed the student at the Hicksville Location.  Additionally, despite petitioner’s repeated assertions that she moved (or was prepared to move) to the Sunken Orchard Location, there is no evidence that the property was habitable at any time relevant to this appeal.  Thus, there is no evidence in the record, let alone clear and convincing evidence, that contradicts respondent’s credibility determination.  As such, I find that respondent reasonably declined to accept petitioner’s claim of residency within the district.[2]

There is no evidence to support petitioner’s suggestion that respondent’s residency determination was motivated by unlawful discrimination.  As discussed above, respondent’s residency determination is supported by the evidence in the record and its credibility determination (Appeal of Visconti, 57 Ed Dept Rep, Decision No. 17,366).

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on the student’s behalf at any time, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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