Appeal of J.L., on behalf of her child, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency.

Decision No. 18,294

(June 29, 2023)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her child (the “student”) is not a district resident entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

In August 2022, the student enrolled in respondent’s kindergarten based upon petitioner’s representation that she and the student resided with the student’s grandmother within the district (the “in-district address”).  However, after conducting a residency investigation, respondent concluded that petitioner and the student resided with the student’s aunt outside of the district (the “out-of-district address”).

By letter dated December 19, 2022, respondent informed petitioner of its determination that the student was not a district resident and would therefore be excluded from respondent’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 23, 2023.

Petitioner argues that she and the student reside at the in-district address and that the student is entitled to attend respondent’s schools tuition-free.

Respondent argues that the petition should be dismissed for failure to state a claim.  Respondent also argues that petitioner has failed to meet her burden of proof and that its determination that petitioner and the student are not district residents was not arbitrary and capricious.

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 failed to meet her burden to prove that respondent’s determination was arbitrary and capricious.  Petitioner asserts that she and the student reside at the in-district address with the student’s grandmother.  She states that the student goes to the out-of-district address only for childcare purposes or when a family member is ill, so as not to expose the grandmother to germs.  In support of the petition, she submits an unsworn letter from the grandmother explaining that she helps with childcare and getting the student on and off the bus.  Petitioner also submits mail and financial documents bearing her name and the in-district address.  While this documentary evidence is entitled to some weight, it is not dispositive in the face of contrary surveillance evidence (Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).  Respondent has submitted a report of such surveillance, which depicted petitioner driving the student from the out-of-district address to the bus stop at the in-district address on several school days from November 1, 2022 to December 7, 2022.  Additionally, a vehicle registered to petitioner at the out-of-district address was observed parked at the out-of-district address on all 12 mornings of surveillance at that location.

I am unpersuaded by petitioner’s explanation that the student, her other child, or her sister’s children were sick on each day of surveillance.  Petitioner’s documentation shows only that she was on leave from November 25 to November 28, 2022 due to COVID-19 and that some children who are not the subject of this appeal were absent from school during this timeframe.

Respondent further asserts that a review of public records revealed that petitioner’s car insurance, voter registration, and driver’s license all identify her address as the out-of-district address.  I am unpersuaded by petitioner’s explanation that she was unable to register or insure a car at the in-district address due to “restrictions” that were explained to her by an insurance agent.  Nor am I persuaded by petitioner’s explanation that her voter registration has no probative value because she has been unable to vote for unexplained reasons.  Thus, although petitioner has attempted to disprove or explain respondent’s evidence, she has not carried her burden to prove that respondent’s determination was arbitrary or capricious (Appeal of C.V., 54 Ed Dept Rep, Decision No. 16,724; Appeal of C.W., 51 id., Decision No. 16,302).

THE APPEAL IS DISMISSED.

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