Appeal of PAULA HOLDER, on behalf of her child, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 18,464

(August 13, 2024)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

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

In 2022, petitioner registered the student in respondent’s schools using an address within its geographical boundaries (the “in-district address”).  By letter dated January 29, 2024, respondent notified petitioner that the student was not entitled to attend its schools because petitioner resided outside of the district.  Upon petitioner’s request, respondent conducted an administrative review of the student’s residency on February 8, 2024.[1]

At the administrative review, petitioner testified that she has lived at the in-district address, which is owned by her father (the “grandfather”), since 2012.  She explained that she also has “access” to the homes of other family members.  According to petitioner, her adult daughter lives in a home outside the district (the “out-of-district address”) where petitioner stayed “in and out, back and forth” to assist her daughter with her pregnancy and postpartum care.  Petitioner’s grandchild was born in January 2024.  Petitioner further explained that the student sometimes accompanied her to the out-of-district address because the grandfather works at night.  Petitioner also stated that she would go back and forth to the out-of-district address in the middle of the night.  Additionally, the grandfather would occasionally bring the student to the out-of-district address in the middle of the night due to his work schedule.  

Petitioner’s daughter testified that petitioner stayed at the in-district address in the afternoons and evenings and helped her with the baby in the morning.  Petitioner submitted various documents at the administrative review bearing her name and the in-district address.

Respondent presented the testimony of its investigator, who explained that he did not observe the student at the in-district address on the mornings of January 8, 9, and 29, 2024, yet he was present for class.  The investigator also testified that he observed petitioner and the student leaving the out-of-district address on the mornings of January 10, 11, 12, 16, 18, and 22 as well as February 6 and 7, 2024. 

Following the administrative review, the hearing officer determined that the student was not a district resident and would be excluded from school.  This appeal ensued.

Petitioner contends that the student is a district resident.  She asserts that she and the student were temporarily absent from the in-district address because she was caring for her adult daughter before and after she gave birth. 

Respondent argues that its residency determination was rational and supported by the evidence adduced at the administrative review.

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).

Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Where a petitioner asserts that an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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).

On this record, I find that petitioner has met her burden of proving that respondent’s determination was arbitrary and capricious.  In support of her appeal, petitioner submits an insurance document, vehicle registration, driver license, receipts, and other documents bearing her name and the in-district address.

While respondent’s surveillance evidence depicted petitioner and the student at the out-of-district address on numerous occasions, petitioner has provided a reasonable explanation for her presence at that location (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Stewart, 47 id. 92, Decision No. 15,637).  Petitioner has consistently maintained that she moved back and forth between the in- and out-of-district addresses to care for her adult daughter and newborn grandchild during the time period respondent conducted surveillance.[2]  Petitioner, her adult daughter, and the grandfather each testified at the residency review that petitioner frequently drove to the out-of-district address in the nighttime or early morning hours.  Additionally, petitioner explained that the grandfather works nights, and would drop the student off at the out-of-district address in the early morning hours when she was there helping her adult daughter. Respondent’s surveillance always commenced at 6:00 a.m. and did not include any observations in the afternoon or evening at either address (Appeal of Vinueza, 41 Ed Dept Rep 463, Decision No. 14,746).  As such, respondent’s surveillance was conducted at the time of day that petitioner and her adult daughter testified that petitioner was present at the out-of-district address.

While the hearing officer acknowledged that petitioner was entitled to “help her daughter,” she framed the issue as “where [petitioner] la[id] her head at night.”  The hearing officer then concluded that petitioner resided at the out-of-district address based upon respondent’s surveillance evidence and vehicle registration information.  I find that the hearing officer erred by failing to consider petitioner’s explanation for her presence at the out-of-district address (Appeal of S.M., 63 Ed Dept Rep, Decision No. 18,327; Appeal of S.S. and G.S., 59 id., Decision No. 17,779; Appeal of Mirza, 57 id., Decision No. 17,128).  Absent an adverse credibility finding[3] or other contradictory evidence, I am unwilling to conclude that petitioner abandoned her residence by spending a few weeks assisting her daughter with her pregnancy and newborn care.[4]

Accordingly, on this record, I find that respondent’s evidence is not dispositive in light of petitioner’s explanation and documentary evidence.  As such, petitioner has met her burden of proof and the appeal must be sustained (Appeal of Moore, 57 Ed Dept Rep, Decision No. 17,353; Appeal of a Student with a Disability, 57 id., Decision No. 17,199).  Respondent may conduct additional surveillance should questions remain regarding petitioner’s residency.

To the extent they are not addressed herein, respondent’s remaining contentions are without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of the district without the payment of tuition.

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