Appeal of DREW GREENE, on behalf of his child, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 18,307

(July 24, 2023)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

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

Petitioner is the child’s custodial parent.  The record reflects that he resides at a location within the district (the “in-district address”) while the child’s mother resides at a location outside of respondent’s district (the “out-of-district address”).  

Prior to the events giving rise to this appeal, the student attended respondent’s district as a resident student. In or around December 2022, respondent developed concerns that the student did not reside within the district.  As such, respondent commenced a residency investigation that included surveillance of the in- and out-of-district addresses on several days in January 2023.  This surveillance consistently depicted the student leaving the out-of-district address on school day mornings, after which he entered a vehicle and was driven to the school he attended.

In a letter dated February 9, 2023, respondent informed petitioner that it had reason to believe that petitioner and his child did not reside within the district.  District officials attempted to meet with petitioner on February 14, 2023 to discuss the student’s residency.  The student’s mother, his non-custodial parent, attended the residency conference without petitioner, asserting that she was a “co-parent” with petitioner. 

In a letter dated March 1, 2023, respondent rescheduled the residency meeting for March 3, 2023 so that petitioner, the custodial parent, could attend.  The letter informed petitioner that if he did “not appear for the scheduled meeting, [the student’s] final day ... [would] be March 3, 2023.”  Petitioner again failed to attend the residency conference on March 3, 2023; the student’s mother and grandmother appeared instead.  This appeal ensued.[1]  Petitioner’s request for interim relied was granted on March 20, 2023.

Petitioner asserts that the student resides at the in-district address.  He states that the student “has a very good relationship with both of his parents”; “sees [them] daily”; and that he and the student’s mother are “fully active in his life.”  Petitioner further describes himself as a “co-parent.”  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition. 

Respondent argues that its determination is supported by the evidence in the record.

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 (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 this burden.  The only evidence submitted with the petition is an eviction notice addressed to the student’s mother from February 2023.  To the extent this is meant to imply that the student resided with petitioner thereafter, the student was not observed at the in-district address in connection with respondent’s March 2023 surveillance.  Although petitioner claims that the student resides full-time with him at the in-district address, there is no evidence in the record to rebut respondent’s surveillance evidence, which consistently depicted the student leaving from the out-of-district address (Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).  Additionally, petitioner did not submit a reply or, indeed, attend any of the two meetings scheduled to discuss the student’s residency (8 NYCRR 100.2 [y] [6]).  As such, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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