Appeal of ERICA CELESTIN, on behalf of her child, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 18,325

(August 15, 2023)

Ingerman Smith, LLP, attorneys for respondent, Matthew Guerra, Esq., of counsel

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

Petitioner enrolled the student in respondent’s district in February 2022.  According to respondent, the student, who was in kindergarten at the time, indicated to school staff during the 2022-2023 school year that he “live[d] in New York City” and was “driven to his bus stop to attend school ....”  Respondent proceeded to conduct surveillance of the in-district address on 11 school mornings in February and March 2023.  On five of these occasions, the investigator observed petitioner drive the student to the in-district address in the morning, at which time he boarded the bus.  On three occasions, petitioner and the student emerged from the in-district address to catch the bus.  Respondent did not directly observe the student on the remaining three days of surveillance.

In a letter dated March 7, 2023, respondent’s director of pupil services (“director”) informed petitioner that it was “unable to substantiate [her] residency” in the district.  She invited petitioner to meet with her on March 17, 2023 to discuss the student’s residency.  Petitioner and the director met as scheduled.  When asked why she may have resided somewhere other than the in-district address, petitioner indicated that she was on vacation for a portion of the surveillance; that she sometimes takes the student out for breakfast before school; and that she sometimes spends the night at her fiancé’s house.

In a determination dated March 17, 2023, the director informed petitioner of her determination that the student was not a district resident and would be excluded on March 22, 2023.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 30, 2023.

Petitioner argues that she resides at the in-district address.  As proof, she submits her driver’s license, a pay stub, a W-2 wage and tax statement for 2022, and proof of homeowner’s insurance that identify her address as the in-district address.  She seeks a determination that the student is a district resident entitled to attend its schools tuition-free.

Respondent contends that its surveillance evidence supports its determination that petitioner does not reside within the district.

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).

Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Where a petitioner asserts that an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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 met her burden of proving that she resides within the district.  At the outset, it is undisputed that petitioner and the student reside at the in-district address at least some of the time as the investigator observed petitioner and the student leaving the home on three occasions.  Respondent, however, argues that petitioner and the student primarily reside outside the district because they were seen on five of the eleven days of surveillance arriving at the in-district address early in the morning.

While petitioner was observed at the out-of-district address a few more times than the in-district address, I do not find this fact dispositive for two reasons.  First, respondent does not advance any theory as to where petitioner and the student reside.  As a result, respondent did not conduct surveillance of any other address inside or outside of the district.  The lack of surveillance as to where respondent believes petitioner or the student reside does not support its determination (e.g., Appeal of T.E., 62 Ed Dept Rep, Decision No. 18,190).

Second, petitioner asserts that she occasionally spends the night with her fiancé, which respondent does not dispute.  There is no evidence as to where the fiancé resides, which could be within respondent’s district.  But even assuming that he resides outside of the district, the student is “not required to spend every night of the week at the in-district address” (Appeal of T.E., 62 Ed Dept Rep, Decision No. 18,190; see also Appeal of V.G., 62 Ed Dept Rep, Decision No. 18,185; Appeal of J.R., 57 id., Decision No. 17,184).

Finally, to the extent respondent relies upon the student’s statements to district employees, these statements are attenuated hearsay entitled to limited probative value (see generally Appeal of J.R., 61 Ed Dept Rep, Decision No. 18,091; Appeal of S.S. and G.S., 59 id., Decision No. 17,779).  Moreover, the student was in kindergarten at the time and respondent does not submit an affidavit from any individual with firsthand knowledge of such comments.

In sum, I find respondent’s evidence insufficient to support its determination.  Respondent’s determination was largely based upon the results of its surveillance, which, for the reasons identified above, is entitled to limited probative value.  Petitioner provides several documents as evidence of residency at the in-district address as well as a reasonable explanation for the days in which she and the student were not observed at the in-district address.  Thus, based upon the record before me, petitioner has met her burden of proving that the student resides within the district.  If respondent remains concerned that petitioner and the student do not actually reside within its district, it may collect evidence through surveillance, home visits, or other means (see, e.g., Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).  Until that time, however, respondent must admit the child to its schools.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of the district without the payment of tuition.

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