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

Decision No. 18,437

(July 1, 2024)

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

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Freeport Union Free School District (“respondent”) that her children (the “students”)[1] are not district residents.  The appeal must be dismissed.

Prior to this appeal, the students registered to attend school in respondent’s district based on their residence within its boundaries (the “in-district address”).  After one of the students stated that he had moved, respondent became suspicious of petitioner’s residency and investigated.  A record search associated petitioner’s family with an address outside of the district (the “out-of-district address”).  Respondent proceeded to surveil the in- and out-of-district addresses.  On four non-consecutive school mornings in February 2024, no activity was observed at the in-district address between 6:00 to 8:30 a.m.  By contrast, on four non-consecutive days, two or more of the students were observed exiting, and departing from, the out-of-district address.  Investigators also observed cars registered to petitioner and the students’ father in the driveway of the out-of-district address.

By letter dated March 5, 2024, respondent advised petitioner that it had reason to believe the students were not district residents.  Respondent extended an opportunity to petitioner to submit documentary evidence and meet regarding her residency.  Following such a meeting, respondent notified petitioner that the students would be excluded after the conclusion of the 2023-2024 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied as moot on March 19, 2024.

Petitioner claims that respondent’s determination was erroneous because the students are district residents.  She argues that the district may not have seen her at the in-district address because she leaves early to take three of the students to school and her building has multiple entrances.  Petitioner also asserts that she watched her brother’s home—the out-of-district address—while he was traveling for work.  She seeks a determination that the students are district residents.

Respondent argues that its determination was reasonable and supported by its investigatory evidence.

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).

Petitioner has not met her burden of proof.  Petitioner’s submission of documents bearing the in-district address is not persuasive in light of the contrary surveillance evidence (Appeal of Gomes, 53 Ed Dept Rep, Decision No. 16,534; Appeal of Stewart, 47 id. 92, Decision No. 15,637).  This evidence portrayed the students at the out-of-district address on each of four school day mornings.  Respondent also observed vehicles registered to petitioner and the students’ father at the out-of-district address.  Petitioner’s explanation for the family’s absence from the in-district address—that she was helping her brother while he traveled for work—is unpersuasive.  Based on the airline ticket records submitted, petitioner’s brother traveled from January 29 to February 13, 2024.  At most, this would explain only two of the days of surveillance.  Accordingly, petitioner has not met her burden of proving that respondent’s determination was arbitrary and capricious (Appeal of E.M., 63 Ed Dept Rep, Decision No. 18,390; Appeal of J.B., 63 id., Decision No. 18,323).

THE APPEAL IS DISMISSED.

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