Appeal of D.F.P., on behalf of her children, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 18,431

(July 1, 2024)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District (“respondent”) that her two children (the “students”) are not district residents.  The appeal must be dismissed.

The students were originally registered in the district in 2012 using an in-district address.  During the 2023-2024 school year, petitioner contacted respondent and requested transportation for the students from a location outside of the district (the “out-of-district address”).  Petitioner indicated that the students were residing with relatives at the “out-of-district address.

Respondent thereafter commenced a residency investigation that included surveillance of the in- and out-of-district addresses.  On January 17, 18, 22, 24, and 30, 2024, an investigator observed the in-district address from approximately 5:15 a.m. to 8:00 a.m. but did not observe petitioner or the students.  Another investigator went to the out-of-district residence on those same dates and time frames and observed one or both of the students and an adult depart the residence each day.

By letter dated January 30, 2024, respondent informed petitioner that it had reason to suspect that the student did not reside within the district.  The letter invited petitioner to submit additional documentation in support of her residency (see 8 NYCRR 100.2 [y] [6]).  Petitioner submitted additional documents on February 2, 2024, that respondent found unpersuasive in light of its surveillance evidence.  Respondent excluded the students thereafter; this appeal ensued.  Petitioner’s request for interim relief was granted on March 12, 2024.

Petitioner asserts that the students reside at the in-district address.  She claims that one of the students stayed at her adult son’s home at the out-of-district address to play video games for approximately five days.  She also asserts that the investigator mistook one of the students for a cousin who lives at the out-of-district address.   She seeks a finding that the students are district residents.

Respondent contends that its determination is supported by the evidence in the record, that it appropriately determined that the students did not reside within its district, and that petitioner has not met her burden to demonstrate a clear legal right to the relief requested.  

Education Law §3202(1) provides, in pertinent part:

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).

Petitioner submits a variety of documents that associate the students with the in-district address, including two notes from doctors; an affidavit of residency; correspondence from respondent’s committee on special education concerning one of the students; a utility bill; a landlord/owner affidavit; and her New York State Department of Motor Vehicles interim ID card.  Petitioner also submits a notarized letter from her adult son who lives at the out-of-district address in question and photographs of the students. 

This documentary proof is insufficient to overcome respondent’s surveillance evidence, which portrayed one or both of the students departing from the out-of-district address on five out of five 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).[1]  Petitioner’s explanation that one of the students was staying with the adult son at the out-of-district residence to play video games for four or five days is unpersuasive as the surveillance took place over three weeks on non-consecutive days.  Petitioner’s claim that respondent’s investigator confused one of the students with his cousin is similarly unavailing.  Respondent submitted its surveillance evidence with its answer, which included photographs depicting both students leaving the out-of-district residence.  Petitioner did not submit a reply or otherwise assert that the students were not, in fact, depicted in the photographs.  Accordingly, petitioner has failed to meet her burden of proof and the appeal must be dismissed (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).

THE APPEAL IS DISMISSED.

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