Appeal of ERIKA MARTINEZ and ERIC J. GRANJA, on behalf of their child, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 18,170

(August 3, 2022)

Keane & Beane P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal a determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that their child (“the student”) is not a district resident entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

Petitioner Martinez (“mother”) registered the student in respondent’s high school in May 2021 based on a landlord affidavit indicating that petitioner Granja (“father”) and the student resided at an address in respondent’s district (the “in-district address”).  When respondent discovered that a different student had registered at the same address as the student, it proceeded to investigate the student’s residency.  Investigators conducted surveillance on seven school day mornings during October and November 2021.  On six of the seven mornings, investigators observed the father and the student leave the out-of-district address and enter a vehicle registered to the mother.  Additionally, on two of these mornings, an investigator also drove ahead to respondent’s high school and observed the mother dropping the student off at school.

By letter dated November 16, 2021, respondent informed petitioners that the student may not be a resident of the district and afforded petitioners an opportunity to provide information regarding their residency.  Petitioners provided respondent with an additional landlord affidavit, a utility bill, and an insurance bill bearing the in-district-address.

Respondent proceeded to conduct additional surveillance.  Investigators surveilled the out-of-district address on six additional school day mornings during February 2022.  On each of the six mornings, the investigators observed the student and the mother leaving the out-of-district address and entering a vehicle registered to the mother.

By letter dated February 18, 2022, respondent notified petitioners of its determination that the student did not reside in the district and would be excluded from school after March 4, 2022.  This appeal ensued.  Petitioners’ request for interim relief was granted on March 7, 2022. 

Petitioners argue that the student is a district resident because she lives at the in-district address.  Petitioners state that the mother and the student stay at the out-of-district address two days a week to help care for the student’s grandmother.  Petitioners seek a determination that the student is a resident of respondent’s district entitled to attend its schools without payment of tuition. 

Respondent argues that petitioners have failed to meet their burden of proving that the student is a district resident.

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).

Petitioners have failed to meet their burden of proving that the student resides in respondent’s district.  Petitioners assert that they live with the student at the in-district address and that the mother and the student stay with the student’s grandmother at the out-of-district address two days a week to provide care.  In support of their appeal, petitioners provide a landlord affidavit, drivers licenses, an auto insurance bill, and a utility bill bearing their names and the in-district address.  While this documentary evidence is entitled to some weight, it is not dispositive when weighed against persuasive, contrary surveillance evidence (Appeal of Collado, 60 Ed Dept Rep, Decision No. 17,918; Appeal of Mauro, 58 id., Decision No. 17,494). 

Respondent submits, among other things, the investigation reports from its investigations into the student’s residency, including a third investigation conducted in March 2022 after this appeal was commenced, which amply support its determination that the student is not a district resident.  The detailed investigative reports, supported by photographs, are inconsistent with petitioners’ explanation that the mother and student stay with the student’s grandmother two days a week (see Appeal of Gomes, 53 Ed Dept Rep, Decision No. 16,534; Appeal of Delacruz, 43 id. 85, Decision No. 14,928; Appeal of K.M., 42 id. 104, Decision No. 14,788).  For example, the investigators observed the father and the student leaving the out-of-district address each morning for an entire week in February 2022.  Petitioners did not submit a reply or otherwise attempt to explain this discrepancy.  Accordingly, petitioners have failed to meet their burden of proof and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE