Appeal of RICARDO EDOUARD, on behalf of his children, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 18,459

(July 30, 2024)

Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel

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

Prior to this appeal, the students attended school in respondent’s district based on their residence within its boundaries (the “first in-district address”).  In September 2023, one of the students informed school employees that she resided in Connecticut (the “out-of-district address”) and was dropped off at her grandfather’s house on school mornings.

Respondent conducted a residency investigation that included surveillance of the first in-district and out-of-district addresses.  Over seven days, the investigator did not observe petitioner or the students at the in-district address.  On two of the days, however, the investigator observed an adult depart the out-of-district address with one of the students and drop her off at the grandfather’s house in Yonkers, New York.[1]

By letter dated January 19, 2024, respondent informed petitioner that it had reason to believe the students did not reside within the district. 

Soon after receipt of this letter, petitioner represented to respondent that he and his family had moved to another location within the district (the “second in-district address”).  Respondent proceeded to conduct additional surveillance.  Over seven days, investigators did not observe the students depart from the second in-district address.  By contrast, on three days, an adult and at least one of the students exited the out-of-district address. 

By letter dated April 24, 2024, respondent informed petitioner of its determination that the students did not reside within the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 28, 2024.

Petitioner asserts that he and the students primarily reside at the second in-district address.  He characterizes the out-of-district address as a “vacation home” that the family visits “from time to time.”  Petitioner further asserts that his father occasionally assists with childcare.  Petitioner seeks a determination that the students are district residents entitled to attend respondent’s schools without payment of tuition. 

Respondent argues that its determination is supported by the evidence in the record, particularly its surveillance 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 (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 his burden of proving that the students reside within respondent’s district.  As evidence, petitioner submits documentary evidence bearing his spouse’s name and the second in-district address as well as an affidavit from an individual suggesting that petitioner’s family resides with her.[2] 

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 observed petitioner and one or more of the students departing from the out-of-district address on several school mornings.  The investigator did not observe petitioner, his spouse, or the children depart from the in-district addresses on any of the days in which it conducted surveillance.  This is inconsistent with petitioner’s suggestion that his family only stays at the out-of-district address “from time to time.”  As such, respondent’s determination cannot be considered arbitrary or capricious.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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