Appeal of T.E., on behalf of her children, from action of the Board of Education of the North Babylon Union Free School District regarding residency.

Decision No. 18,190

(August 24, 2022)

Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the North Babylon Union Free School District (“respondent”) that her children (the “students”) are not district residents entitled to attend the district’s schools tuition-free.  The appeal must be sustained.

Prior to the events leading to this appeal, the students were enrolled in respondent’s schools as district residents.  In December 2021, respondent initiated an investigation into the student’s residency based on “information that caused [respondent] to believe” that the students did not reside in the district (the “in-district address”).  Respondent subsequently conducted eight days of surveillance of the in-district address throughout December 2021 and January 2022.

On January 24, 2022, respondent met with petitioner to discuss her residency.  During the meeting, petitioner asserted that she and the students live at the in-district address with petitioner’s mother (the “grandmother”), sister, and nephew.  Petitioner stated that the grandmother rents the in-district address from a landlord.  Petitioner also stated that the student’s father (the “father”) lives outside of the district and sometimes drives the students to school, although she claimed that the students do not spend the night at the father’s residence.  Petitioner asserted that she had no formal custody agreement with the father.

By letter dated January 24, 2022, respondent determined that the students were not district residents entitled to attend its schools tuition-free, citing its surveillance in support of its determination.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 2, 2022. 

Petitioner asserts that the students are district residents and seeks a determination that the students are entitled to attend its schools without payment of tuition. 

Respondent argues that petitioner has failed to meet her burden of proving that the students are district residents because surveillance demonstrates that the students do not live at the in-district address.

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 her at the in-district address (see Appeal of V.G., 62 Ed Dept Rep, Decision No. 18,185; Appeal of Murphy, 61 id., Decision No. 18,018).  These documents include tax forms from the 2021 tax year; a banking statement dated January 9, 2022; car loan documents; and a piece of personal mail.

In response, respondent relies on its surveillance evidence to demonstrate that the students do not reside at the in-district address.  Respondent conducted eight mornings of surveillance throughout December 2021 and January 2022 at the in-district address.  As explained below, this evidence is insufficient to rebut petitioner’s showing.

First, the fact that the students were not observed leaving the in-district address on mornings when they were either late or absent from school on December 10, 16, and 22, 2021 and January 18, 2022 has minimal probative value.  All this evidence shows is that the students did not leave the in-district address for school on time.  While respondent suggests that this proves that the students were outside of the district, it is equally plausible that they were at the in-district address and left after the investigator did, if at all.  

Second, other surveillance reports are so vague that no meaningful conclusions may be drawn therefrom.  On December 21, 2021, the investigator reported that a vehicle was located in front of the in-district address and that, sometime thereafter, a bus “picked up students.”  Similarly, on January 4, 2022, the investigator recorded that a “young girl exit[ed] [a] car and board[ed] [a] bus.”  The investigator did not identify or describe the father or the students in these reports, nor did he explain the significance of the vehicle portrayed therein.  As such, these generic descriptions do not support respondent’s conclusion that the father drove the students to the in-district address to board the bus on these days. 

Third, respondent did not conduct surveillance of the out-of-district address to support its claim that the students reside with the father.  Even assuming that the students occasionally stayed with the father, they are not required to spend every night of the week at the in-district address (Appeal of V.G., 62 Ed Dept Rep, Decision No. 18,185; Appeal of J.R., 57 id., Decision No. 17,184).  In light of the foregoing, respondent’s surveillance is insufficient to establish that the students do not reside at the in-district address.

Finally, although petitioner represented to respondent that she and the students stayed at the in-district address every night, she admitted that the students’ father sometimes drove them to school and helped her with the students when she was unwell.  These statements, taken as a whole, are not inconsistent with the surveillance conducted by the investigator.  As such, I find that petitioner has sufficiently demonstrated her residence within the district (see Appeal of Students with Disabilities, 58 Ed Dept Rep, Decision No. 17,467 [district’s four days of surveillance found to be “limited and inconclusive” under the circumstances]).

I find, therefore, that respondent’s determination was arbitrary and capricious, and that the students are entitled to attend respondent’s schools tuition-free.  Nothing in this decision shall preclude respondent from further investigating petitioner’s residency.

I have reviewed respondent’s remaining contentions 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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