Appeal of DANA SPALDING, on behalf of her child, from action of the Board of Education of the Elmont Union Free School District regarding residency.

Decision No. 18, 443

(July 15, 2024)

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

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

Prior to the events giving rise to this appeal, the student attended respondent’s district and resided within respondent’s geographical boundaries (the “in-district address”).  According to respondent, at a parent teacher conference in September 2023, petitioner stated that she resided in the Bronx, New York (the “out-of-district address”) and wished for the student to finish the 2023-2024 school year in respondent’s district.  Soon thereafter, respondent commenced a residency investigation that included surveillance of the in- and out-of-district addresses.  The investigator did not observe the student at the in-district address on six school day mornings.[1]  By contrast, the investigator observed the student leaving the out-of-district address on each of four school day mornings. 

By letter dated October 24, 2023, respondent informed petitioner of its determination that the student did not reside within the district.  After petitioner appealed this determination, respondent convened a residency hearing on November 29, 2023.[2]  At the hearing, respondent’s investigator described the results of its surveillance evidence.  Petitioner also testified, indicating that her fiancé leases the out-of-district address and that she stays there “whenever it suits her.”

In a decision dated January 17, 2024, respondent’s administrative review officer concluded that petitioner and the student did not reside within the district.  This appeal ensued.  Petitioner’s request for interim relied was granted on March 4, 2024.

Petitioner asserts that she and the student primarily reside at the in-district address.  She offers explanations as to why she and the student were not observed at the in-district address by the investigator.  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition. 

Respondent argues 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 (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 proving that the student resides within respondent’s district.  As evidence, petitioner submits documentary evidence bearing her name and the in-district address as well as affidavits attesting to her residency therein.  This documentary evidence is unpersuasive when weighed against respondent’s surveillance evidence (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 indicated above, an investigator exclusively observed petitioner and the student departing from the out-of-district address on school mornings. 

Petitioner’s explanations for these absences—a family member’s illness, birthdays, “prepar[ation] for the Thanksgiving holiday,” and her mother’s trip outside of the country—are unpersuasive.  First, petitioner did not present these explanations at the hearing.  Second, as respondent notes, these explanations are inconsistent with petitioner’s admissions at the September 2023 parent-teacher conference (see Appeal of Jaikissoon, 63 Ed Dept Rep, Decision No. 18,333).  Finally, while petitioner asserts that these events necessitated “homework and afternoon care” at the out-of-district address, the surveillance evidence depicted her and the student leaving that address early in the morning.  As such, respondent’s determination cannot be considered arbitrary or capricious.

THE APPEAL IS DISMISSED.

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