Appeal of SYEDA F. UDDIN, on behalf of her children, from action of the Board of Education of the Herricks Union Free School District regarding residency.

Decision No. 18,469

(August 19, 2024)

John J. McGrath, Esq., attorney for petitioner

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

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

In fall 2023, petitioner enrolled the students in respondent’s district based on their residence therein (the “in-district address”).  In November 2023, one of the students told his classroom teacher that he slept outside of the district.  Respondent then contacted petitioner, who admitted that she occasionally stayed with her sister at a home outside of the district.  A building principal later met with petitioner and her brother-in-law, the latter of whom owns the in-district address.  After this meeting, respondent suspected that petitioner and the students lived at an address located outside of the district (the “out-of-district address”).  Respondent then commenced an investigation. 

On December 13, 2023, an investigator observed a van registered to petitioner at the out-of-district address.  On December 14, 2023, petitioner left the out-of-district address in her van with the two older students.  Later that morning, a driver in a different car pulled up to the out-of-district address and picked up the younger student.  The investigator observed a similar pattern on December 15, 18, 19, and 21, 2023.

By letter dated December 22, 2023, respondent informed petitioner that the students would be excluded as non-residents, effective January 5, 2024.   At a meeting on January 3, 2024, respondent informed petitioner that it conducted surveillance showing that she and the students resided outside of the district.  Petitioner did not refute the surveillance evidence but, instead, submitted additional documents bearing her name and the in-district address. 

On January 3, 2024, respondent sent petitioner a second letter stating that the exclusion determination was final and would be effective January 8, 2024.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 19, 2024.

Petitioner asserts that she and the students reside within the district, submitting various documents that associate her with the in-district address.  She seeks a determination that the students are district residents.

Respondent argues that its determination is supported by its surveillance evidence, which refutes petitioner’s explanation of the students’ living arrangements. 

Education Law § 3202 (1) provides, in pertinent part:

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).

In support of her claim that the students reside at the in-district address, petitioner submits her driver license, a current utility bill, insurance card, a bank statement, and a copy of the deed for the in-district address.[1]  Petitioner also submits affidavits from two family members who assert that she and her family “occasionally” stay at the out-of-district address.  This evidence is unpersuasive when weighed against respondent’s surveillance evidence, which exclusively portrayed petitioner or the students at the out-of-district address over multiple days of surveillance (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 such, respondent reasonably concluded that the students do not reside within the district.

THE APPEAL IS DISMISSED.

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