Appeal of MERCADEZ BOUYEA-WASHINGTON, on behalf of her child, from action of the Board of Education of the Onondaga Central School District regarding residency.

Decision No. 18,442

(July 15, 2024)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

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

Petitioner originally enrolled the student in respondent’s schools based on her residence therein (the “in-district address”).  After transportation staff raised concerns that the student did not reside at the in-district address, respondent commenced a residency investigation.  This investigation revealed that vehicles belonging to the student’s parents were registered to a home outside the district (the “out-of-district address”).  Respondent also conducted surveillance of both addresses.  By letter dated July 20, 2023, respondent informed petitioner of its determination that the student was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 22, 2023.

Petitioner argues, without elaboration, that the student resides at the in-district address.

Respondent contends that the petition must be dismissed because its residency determination was supported by its investigation.

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 failed to meet her burden of proving that respondent’s residency determination was arbitrary or capricious.  Respondent’s surveillance report indicates that license plates were issued to two vehicles belonging to the student’s parents at the out-of-district address in 2023.  One of the vehicles was observed at the in-district address on three school day mornings, after which the student was observed boarding the bus.  On one of these days, the vehicle departed the in-district address shortly after the bus picked up the student.  Both vehicles were observed later in the day at the out-of-district address.  Respondent’s determination is further supported by the reports from transportation staff that served as the impetus for the investigation.  Petitioner submits no evidence to explain or rebut this evidence.  Accordingly, I find that petitioner has not met her burden of proof and the appeal must be dismissed (Appeal of M.K., 62 Ed Dept Rep, Decision No. 18,178; Appeal of J.K., 59 id., Decision No. 17,750).

THE APPEAL IS DISMISSED.

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