Appeal of RASHAD SALEH, on behalf of his children, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 18,188

(August 23, 2022)

Ingerman, Smith, LLP, attorneys for respondent, Stephanie Bellantoni, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that his two children (the “students”) are not district residents entitled to attend the district’s schools tuition-free.  The appeal must be sustained.

Petitioner enrolled the students in respondents’ schools for the 2021-2022 school year based on a representation that he and the students resided at a location within the district (the “in-district address”).  In December 2021, respondent received a doctor’s note from one of the student’s physicians that identified petitioner’s address as a location outside of the district (the “out-of-district address”).  By letter dated December 9, 2021, respondent’s director of pupil personnel services (“PPS director”) notified petitioner that it had received information suggesting that he the students did not reside within the district.  The PPS director offered petitioner an opportunity to submit further proof of residency by December 23, 2021.  Thereafter, petitioner submitted copies of utility bills and bank statements addressed to him and his spouse at the in-district address.

By letter dated January 5, 2022, the PPS director wrote to petitioner, encouraging him to submit a lease, mortgage agreement, or current bills “received by mail” before January 19, 2022.  In response, petitioner submitted a copy of a cellphone bill addressed to him at the in-district address.

By letter dated January 26, 2022, the PPS director advised petitioner of respondent’s final determination that he was not a district resident; she further indicated that the students would be excluded from the district as of February 9, 2022.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 2, 2022.

Petitioner argues that he and the students reside at the in-district address.  Petitioner states that he works at the out-of-district address, a delicatessen, and chooses to “receive most of [his] mail at this address.”  Petitioner seeks a determination that the students are residents of respondent’s district entitled to attend its schools without payment of tuition.

Respondent asserts that its determination was not arbitrary and capricious.  

First, I must address a preliminary matter.  On appeal, respondent submits documents that petitioner provided to respondent following its residency determination.  While the Commissioner has the discretion to consider additional evidence that was not submitted at the local level (e.g., Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; Appeal of Leach, Jr., 58 id., Decision No. 17,653), I decline to do so here.  Petitioner submitted these documents to respondent in support of his claim of residency but elected not to submit them on appeal.  Additionally, although respondent included them with its answer, it argues that these documents “have no bearing on the propriety of ... [its] final determination ... dated January 26, 2022.”  Petitioner did not submit a reply or otherwise respondent to this contention.  Under the circumstances, I decline to accept the additional evidence submitted by respondent.

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 made a prima facie showing of residency within the district by submitting numerous documents addressed to him and his spouse at the in-district address.  This includes copies of bank statements, utility bills, and insurance identification (see Appeal of Murphy, 61 Ed Dept Rep, Decision No. 18,018).  Indeed, respondent concedes that “[p]etitioner has some involvement with the ... In District address [] on the basis of the documentation provided.”

Respondent’s two attempts to rebut this showing are unpersuasive.  First, contrary to respondent’s suggestion,[1] there is no evidence that petitioner’s documentary evidence is unreliable or fabricated.  The Commissioner has previously held that “generalized suspicion concerning an individual’s residency cannot serve as a basis for an adverse residency determination” (Appeal of Prescod and Cumberbatch, 60 Ed Dept Rep, Decision No. 17,924; see also Appeal of Crawford, 59 id., Decision No. 17,785; Appeal of the Bd. of Educ. of the East Ramapo Cent. Sch. Dist., 58 id., Decision No. 17,456).  Moreover, petitioner has offered a reasonable explanation as to why mail was addressed to him and/or his family at the in-district address that respondent has failed to rebut.

Second, the fact that no one was home at the in-district address during a single, unannounced home visit on December 1, 2021 at 2:00 p.m. has little to no probative value (see Appeal of Mirza, 57 Ed Dept Rep, Decision No. 17,128; Appeal of Sims-Edwards, 48 id. 67, Decision No. 15,795).  This was respondent’s sole attempt to ascertain the students’ physical presence; respondent conducted no additional surveillance of the in-district or out-of-district addresses.  The appeals cited by respondent in support of its argument are distinguishable as they involved numerous days of surveillance (Appeal of Booth, 57 Ed Dept Rep, Decision No. 17,210 [“respondent relies on surveillance conducted on [five separate dates].  On each of these dates, a man alleged to be petitioner, as well as the students, were observed in the early morning hours at a residence outside of the ... attendance zone” where petitioner claimed to reside]; Appeal of Picton, 57 id., Decision No. 17,126 [“Petitioner’s claims [of residency] are contradicted by respondent’s surveillance evidence from 12 observations, showing that [the student] was never observed at the in-district address on five separate mornings in January 2017, and was regularly observed exiting the out-of-district address in advance of the school day on seven separate mornings in January and February 2017”]).[2]

I find, therefore, that respondent’s determination was arbitrary and capricious, and petitioner has met his burden of establishing that the students are district residents and, thus, entitled to attend respondent’s schools’ tuition-free.  Nothing in this decision shall preclude respondent from further investigating petitioner’s residency.

I have considered respondent’s remaining arguments and find them to be without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the students to the schools of the district without the payment of tuition.

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