Appeal of C.D., on behalf of her children, from action of the Board of Education of the West Irondequoit Central School District regarding residency.

Decision No. 18,281

(May 24, 2023)

Harris Beach, PLLC, attorneys for respondent, Anne M. McGinnis, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the West Irondequoit Central School District (“respondent”) that her children (the “students”) are not district residents. The appeal must be dismissed.

Prior to the events described in this appeal, the students attended respondent’s schools as district residents.  In November 2022, petitioner and the students moved to a new residence located outside of the district.  By letter dated December 14, 2022, respondent concluded that the students were no longer district residents and would be excluded after December 23, 2022.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 19, 2023.

Petitioner admits that she and the students have moved out of the district but states she did not realize that her new residence was located outside of the district.  Petitioner seeks a determination that the students are residents of the district and are entitled to attend the district’s schools tuition-free.

Respondent asserts that the petition should be dismissed for failure to demonstrate a clear legal right to the relief requested and that the students are not district residents.

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). 

Here, petitioner concedes that she and the students live outside of the district.  Further, she has not demonstrated that she has taken, or intends to take, efforts to return therein (e.g., Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229).  Thus, petitioner has failed to meet her burden to demonstrate that the students are district residents entitled to attend respondent’s schools tuition-free (see Appeal of Y.A., 62 Ed Dept Rep, Decision No. 18,182; Appeal of R.K., 60 id., Decision No. 17,915).  Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE