Appeal of DAVID KERR, on behalf of his child, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 18,231

(January 30, 2023)

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

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District (“respondent”) that his child (the “student”) is not a district resident.  The appeal must be dismissed.

In 2022, respondent enrolled the student in its schools based upon petitioner’s representation that he and the student resided at an address within respondent’s district (the “in-district address”).  At all times relevant to this appeal, petitioner owned and resided at a location in Hempstead, New York (the “out-of-district address”). 

In fall 2022, the district conducted a residency investigation.  An investigator conducted surveillance of both the in-district and the out-of-district addresses on six days in September 2022, beginning at 5:00 or 5:15 a.m.[1]  On each day of surveillance, the investigator observed the student exit the out-of-district address, enter a vehicle or board a bicycle, and depart therefrom.  The investigator did not observe the student, petitioner, or petitioner’s vehicle at the in-district address.

In a letter dated October 3, 2022, respondent’s director of pupil services informed petitioner that the district had reason to believe that the student did not reside within the district.  The director offered to meet with petitioner to discuss the basis for the district’s conclusion.  Such a meeting occurred on October 12, 2022.  During this meeting, petitioner asserted that the surveillance was “wrong” but failed to provide any explanation for the student’s presence at the out-of-district address.

On October 12, 2022, the director of pupil services notified petitioner of the district’s final determination that the student was not a district resident and would be excluded as of October 18, 2022.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 25, 2022. 

Petitioner asserts that both he and the student have resided with petitioner’s mother (the student’s grandmother) at the in-district address since March 15, 2022.  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that, as demonstrated by its surveillance evidence, petitioner resides at the out-of-district address.  As such, respondent argues that its determination to exclude the student from its schools cannot be considered arbitrary or 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 not met his burden of proving that the student resides within respondent’s district.  As evidence, petitioner submits, among other things, copies of his New York State driver’s license, correspondence from the United States Department of State and the Nassau County Board of Elections, a bank account statement in the student’s name, and a phone bill, each bearing his name and the in-district address.  While this evidence generally suggests that petitioner resides at the in-district address, it is insufficient to establish that the student resides with him at the in-district address rather than with the student’s mother at the out-of-district address, particularly where contrary surveillance evidence exists (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).  As indicated above, an investigator observed the student exiting the out-of-district address on each of the six days of surveillance.  Additionally, the record contains a custody petition that petitioner filed in Family Court in which he avers that, as of March 14, 2022, he resided at the out-of-district address.  Thus, respondent’s determination is supported by the evidence in the record and cannot be considered arbitrary or capricious (see Appeal of T.M., 58 Ed Dept Rep, Decision No. 17,496).

In light of this determination, I need not address the parties’ remaining contentions.  Petitioner retains the right to reapply for the student’s admission to respondent’s schools in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration. 

THE APPEAL IS DISMISSED. 

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