Appeal of C.M. and T.M., on behalf of their children, from action of the Board of Education of the Elmont Union Free School District regarding residency.

Decision No. 18,423

(June 26, 2024)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel

Petitioners appeal the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that their three children (the “students”) are not district residents.  The appeal must be dismissed.

The students were originally registered in the district in 2023 based upon petitioner T.M.’s representation that she and the student resided therein (the “in-district address”).  In September 2023, the respondent received an anonymous tip that the students did not reside within the district.  The district initiated a residency investigation, which included surveillance of the in-district address between 6:00 and 9:00 a.m. on 11 days in fall 2023.[1]  On each day of surveillance, an investigator did not observe the students leave the in-district address.  The investigator later confirmed that the students were present in school on each of these days.

By letter dated October 24, 2023, respondent informed petitioner of its determination that the students did not reside within the district.  Petitioners appealed this determination.  In accordance with district policy, respondent convened a residency hearing on December 1, 2023.[2]  At the hearing, the investigator described the results of the surveillance evidence.  Petitioner T.M. testified that she resides at a location outside of respondent’s district (the “out-of-district address”) but that the students sleep at, and leave from, the in-district address.  Petitioner T.M. further asserted that the students’ father, petitioner C.M., resides at the in-district address.  Petitioner C.M. did not testify.

In a written decision, respondent’s administrative review officer concluded that the students did not reside within the district.  On January 8, 2024, a final exclusion notice was sent to petitioners stating that the students would be excluded at the close of business on February 9, 2024.  This appeal ensued.  Petitioners’ request for interim relief was denied on March 5, 2024.

Petitioners assert that the students reside with petitioner C.M. at the in-district address from Sundays through Fridays.  Petitioners claim that the students live with petitioner T.M. on the weekends outside of the district.  They seek a determination that the students are district residents.

Respondent contends that the petition should be dismissed as untimely.  On the merits, respondent argues that its determination is supported by its surveillance evidence, which refutes petitioners’ explanation of the students’ living arrangements. 

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not reveal when a petitioner received notice, the date of receipt is calculated as the date of the determination or act plus five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent’s determination was dated January 8, 2024, and the record does not reflect the date petitioners received it.  Affording five days for mailing, petitioners had until February 12, 2024 to initiate this appeal.  However, the petition was not served upon respondent until March 1, 2024.  Petitioners did not submit a reply or otherwise attempt to explain the delay (8 NYCRR 275.3 and 275.14; Appeal of Kowalewski, 56 Ed Dept Rep, Decision No. 17,013; Appeal of Manfredo, 56 id., Decision No. 16,943).  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  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 Gay, 54 Ed Dept Rep, Decision No. 16,636; Appeal of White, 48 id. 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In support of their claim that the students reside at the in-district address every Sunday through Friday, petitioners submit a cell phone bill, a bank statement, a letter from a car dealership, an incomplete lease signature page, and a notarized letter from an individual stating that the students live at the in-district address.  This documentary evidence is unpersuasive when weighed against respondent’s surveillance evidence.  This surveillance did not portray the students at the in-district address on eleven, non-consecutive school day mornings (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 such, respondent reasonably declined to credit petitioners’ explanation of the student’s living arrangements.  Therefore, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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