Appeal of ELIA MINTEGUI, on behalf of her child, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 18,390

(March 18, 2024)

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 Bay Shore Union Free School District (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be dismissed.

The student has attended respondent’s schools since 2013.  During the 2020-2021 school year, respondent determined that the student lived at an address located outside of respondent’s district (the “out-of-district address”).  The student was thereafter excluded from the district.

In the 2022-2023 school year, petitioner re-enrolled the student, indicating that she now resided at a different address (the “in-district address”).  As proof thereof, petitioner submitted, among other things, a copy of a lease agreement and a landlord affidavit.

Respondent subsequently investigated the student’s residency.  A search of motor vehicle records revealed that: (1) petitioner had two automobiles registered in her name at the out-of-district address; and (2) petitioner’s driver’s license and the student’s learner’s permit identified the out-of-district address as their residence.  An investigator also surveilled the in-district address for five days and the out-of-district address for six days.  At the in-district address, the investigator did not observe petitioner or the student.  At the out-of-district address, the investigator observed the student departing the address on four of six days.  The investigator also observed two cars registered to petitioner “parked in the driveway of [that] residence” on each day of surveillance.

By letter dated October 17, 2023, respondent informed petitioner of its determination that the student was not a district resident and would be excluded from its schools after October 24, 2023.  In a letter dated October 23, 2023, respondent reiterated that its decision to exclude the student was “final.”  This appeal ensued.  Petitioner’s request for interim relief was denied on October 30, 2023.

Petitioner asserts that, while she owns the out-of-district address, she and the student reside at the in-district address.  She requests a determination that the student is a district resident.

Respondent contends 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 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).

In support of her claim that she and the student are district residents, petitioner submits a water bill and three months of utility bills in her name at the in-district address.  She also submits a lease amendment, effective September 1, 2023, concerning the in-district address.

This documentary proof is insufficient to overcome respondent’s surveillance evidence, which portrayed the student departing from the out-of-district address on four of six school-day mornings (see Appeal of J.M., 62 Ed Dept Rep, Decision No. 18,192; Appeal of Rahimi, 61 id., Decision No. 18,044; Appeal of R.V., 60 id., Decision No. 17,911).  Additionally, respondent observed two automobiles belonging to petitioner parked at the out-of-district residence on all six of these days.  Petitioner’s explanation that she and the student “go back home together to eat dinner and sleep” at the in-district address every day is belied by respondent’s surveillance evidence (see Appeal of Kerr, 62 Ed Dept, Decision No. 18,231; Appeal of Mauro, 58 id., Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).  Accordingly, petitioner has failed to meet her burden of proof, and the appeal must be dismissed.

THE APPEAL IS DISMISSED. 

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