Appeal of D.B., on behalf of a child, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.

Decision No. 18,488

(August 28, 2024)

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas and Gabrielle P. Heffernan, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that a participant in an exchange program (the “student”) is not a district resident.  The appeal must be dismissed.

In September 2023, petitioner attempted to register the student, who is a citizen of another country, in respondent’s district.  In connection therewith, petitioner submitted documents reflecting the student’s participation in a private foreign exchange program for the 2023-2024 school year.  This included an affidavit executed by the student’s parents purportedly transferring custody of the student to petitioner for “[o]ne academic year, until the end of June 2024.”

By letter dated September 6, 2023, respondent denied the student admission to the district on a tuition-free basis given the time-limited nature of the transfer of custody. 

On September 12, 2023, respondent’s assistant superintendent for business operations (“assistant superintendent”) met with petitioner to discuss the student’s residency.  At this meeting, petitioner offered a written statement from the student’s parents alleging that the student had been “bullied and harassed” based on a protected status.  The statement further indicated that petitioner and his spouse were part of the parents’ “chosen family [] going back decades” and that they intended “this arrangement to continue permanently.”  When asked about the duration of the student’s visit, petitioner confirmed that the student would only reside with him through the end of the 2023-2024 school year.

On  September 14, 2023, respondent concluded that the student was not a district resident entitled to attend its school without payment of tuition.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 19, 2023.

Petitioner asserts that the evidence submitted to respondent demonstrates that he is the student’s legal guardian.  He further indicates that, following commencement of this appeal, he filed a petition for guardianship of the student in Westchester County Family Court.  He seeks a determination that the student is entitled to attend respondent’s schools without payment of tuition.

Respondent contends that petitioner has not demonstrated a total transfer of custody.  Respondent further indicates that the student is ineligible to attend its schools tuition-free based upon the prior receipt of a high school diploma.

Initially, the record reflects that the student already completed four years of secondary education and obtained a high school diploma in Spain.  Petitioner did not submit a reply or otherwise respond to this assertion.  The right to attend a public school on a tuition-free basis only extends to those who have “not received a high school diploma” (Education Law § 3202 [1]).  As such, the student’s receipt of a high school diploma following the completion of a course of study comparable to that of the United States justified denial of admission on a tuition-free basis (Appeal of Visconti, 57 Ed Dept Rep, Decision No. 17,366).

While the appeal must be dismissed on this basis, I further note that petitioner has not proven a total transfer of custody.  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).

The presumption that a child resides with his or her parent or legal guardian can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

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 not met his burden of proof.  All the evidence presented to respondent indicated that the transfer of custody would expire in less than a year.  Indeed, even after the student’s parents asserted that the arrangement was “permanent [],” petitioner verbally informed the assistant superintendent that the student would only reside with him for a single year.  The Commissioner has long held that such time-limited efforts do not constitute a total transfer of custody (e.g., Appeal of Jackson, 62 Ed Dept Rep, Decision No. 18,276; Appeal of Menzer, 59 id., Decision No. 17,768; Appeal of Burova, 56 id., Decision No. 16,979).

The temporary nature of this transfer is reinforced by the student’s entry into the United States with a J-1 Visa.  This classification is issued to foreign citizens who wish to enter the United States “to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.”[1]  The student’s J-1 Visa was issued on July 18, 2023 and expired less than a year later on June 15, 2024.  This reflects a temporary intention to reside with petitioner in the United States (see Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764; Appeal of Esposito, 57 id., Decision No. 17,415).

Further, respondent permissibly declined to accept petitioner’s claim that the student is living with him due to unlawful discrimination.  Petitioner did not raise this assertion until respondent declined to enroll the student on a tuition-free basis.  Moreover, the student’s parents entered into an agreement with the private foreign exchange program in January 2023, approximately seven months prior to the student’s arrival in the United States.  As respondent indicates, “[i]t is, at the very least, questionable as to why [the student’s] [p]arents ... would wait more than seven months” to address what petitioner characterizes as “unspeakable harassment and threats.”  Without further proof or explanation, I cannot find that petitioner has rebutted the presumption of parental residence (compare Appeal of L.L., 62 Ed Dept Rep, Decision No. 18,191; Appeal of Ramirez, 40 id. 163, Decision No. 14,449).

Finally, even if Family Court granted petitioner’s application for guardianship of the student, the student would continue to be ineligible to attend respondent’s district on a tuition-free basis due to receipt of a high school diploma (Appeal of Visconti, 57 Ed Dept Rep, Decision No. 17,366).

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

THE APPEAL IS DISMISSED.

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