Decision No. 17,742
Appeal of VIET NGUYEN on behalf of his children MINH and HA, from action of the Board of Education of the Brewster Central School District regarding residency.
Decision No. 17,742
(August 27, 2019)
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel
ELIA., Commissioner--Petitioner appeals the determination of the Board of Education of the Brewster Central School District (“respondent”) that his children, Minh and Ha (“the students”), are not district residents. The appeal must be dismissed.
The record indicates that Minh first enrolled in respondent’s schools in February 2017 as a fourth grade student, and Ha enrolled in kindergarten in September 2017. The students were enrolled based upon a representation that they resided at an address located within respondent’s geographical boundaries (“the in-district address”).
In early May 2018, the district received information suggesting that the students resided at their grandfather’s home outside of respondent’s district (“the out-of-district address”). By letter dated May 9, 2018, respondent requested that petitioner submit additional documents to support his claim of residency within the district. In response, petitioner submitted a mortgage statement and cable bill addressed to the students’ uncle, the owner of the in-district address. Petitioner also submitted a copy of his driver’s license, which identified his address as the in-district address. Respondent proceeded to conduct a residency investigation, which included surveillance of the in-district address. An investigator surveilled the in-district address on June 15, 18, 21 and 22, 2018. According to respondent, the investigator “was unable to conclusively say that Petitioner lived outside of the District.”
Respondent conducted a residency hearing on June 21, 2018 to discuss the students’ residency. Petitioner, the students’ uncle and the district’s residency officer attended. At the meeting, petitioner asserted that he and the students occasionally visit the student’s grandfather at the out-of-district address. The district determined that it did not have enough evidence to exclude the students as non-residents and permitted the students to remain enrolled in the district.
On July 11, 2018, petitioner submitted residency verification paperwork to respondent. This document included a third-party statement from the students’ uncle indicating that the family resided with him at the in-district address, a mortgage statement addressed to the uncle at the in-district address, a copy of petitioner’s driver’s license bearing the in-district address, and a piece of mail addressed to the students’ mother bearing the in-district address.
On or about September 12, 2018, the district received an email from a community member claiming that the students did not reside in the district. In response, the district conducted additional investigation into the students’ residency. An investigator surveilled the in-district address on February 8, 14 and March 7, 2019. The investigator did not observe the students on any of these dates. The district also surveilled the out-of-district address on six dates in April 2019. The students were consistently observed being driven from the out-of-district address to school.
By letter dated May 3, 2019, respondent questioned petitioner’s residency and scheduled a residency hearing for May 15, 2019. Petitioner was invited to submit additional documentary evidence in support of his claim of residency within the district.
The residency meeting took place on May 15, 2019; the district’s residency officer, registrar, petitioner and the students’ uncle attended. According to respondent, the students’ uncle translated for petitioner, who is not fluent in English. As translated by the students’ uncle, petitioner admitted that he and the students lived at the out-of-district address. The uncle further stated “that it was the Petitioner’s intention to move back to the District in the summer.”
By letter dated May 23, 2019, the district’s residency officer notified petitioner of the district’s determination that the students were not residents of the district and, as such, were not entitled to attend its schools on a tuition-free basis. The residency officer further indicated that the students would be excluded from respondent’s schools as of May 31, 2019. This appeal ensued. Petitioner’s request for interim relief was granted on June 4, 2019.
Petitioner asserts that he and the students have returned to the in-district address but will occasionally stay with their grandfather at the out-of-district address. Petitioner requests a determination that the students are residents of the district and, thus, entitled to attend its schools without the payment of tuition.
Respondent contends that its determination that the students are not residents of the district is neither arbitrary nor capricious. Respondent further asserts that petitioner’s statement that the students intend to move back to the in-district address does not demonstrate the requisite intent to reside in the district required to establish residency within the meaning of Education Law §3202.
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 statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320). A child’s residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); 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 petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Initially, the record supports respondent’s determination that the students reside at the out-of-district address. As indicated above, during the May 15, 2019 residency hearing, the uncle, translating for petitioner, admitted that the students reside at the out-of-district address. This is corroborated by respondent’s surveillance evidence, which consistently depicted the students at the out-of-district address. Moreover, in the petition, petitioner states that “[s]ince receive the notice stating that the children cannot attend the Brewster School[s] beyond 31 May, 2019, we have moved back into the [in-district] address” (emphasis added). Therefore, I find that respondent’s determination that the students are not district residents is supported by the record.
With respect to petitioner’s claim that he and the students have moved back into the in-district address sometime following respondent’s determination of non-residency, this claim must be dismissed as premature. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861). Petitioner alleges that, following respondent’s May 23, 2019 determination, his living circumstances have changed such that he and the students now reside within respondent’s district Commissioner’s regulation §100.2(y)(6) provides that an appeal of a student residency determination only lies from the final decision of respondent or its designee. Therefore, the instant appeal is premature. Petitioner must first seek to reapply for admission to respondent’s schools. If denied, petitioner may then seek relief in an appeal to the Commissioner pursuant to Education Law §310 (see Appeal of Barrientos, 58 Ed Dept Rep, Decision No. 17,450).
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Respondent indicates that petitioner also submitted a copy of Form 8879, entitled “IRS e-file Signature Authorization.” As respondent indicates, this document is not probative of petitioner’s residency as it does not identify petitioner’s address.
 The record reflects that respondent solicited such information via a form entitled “residency re-registration certification 2018-2019.” Although petitioner does not raise any objections or arguments with respect to this policy, I note that, in July 2018, the State Education Department (“Department”) issued guidance on the practice of mandatory “re-registration” wherein all parents and guardians are required to “re-register” their students prior to the start of school. The Department’s guidance states, in pertinent part, as follows: “While the [Commissioner’s] regulations [8 NYCRR §100.2(y)] recognize that school districts may make determinations throughout the school year that certain individual students are no longer district residents subsequent to initial enrollment or re-entry, the regulations do not contemplate the practice ... of requiring all students to ‘re-register’ with the district regardless of whether a question exists as to the residency status of each individual student (emphasis omitted).” The Department’s guidance is available at: http://www.nysed.gov/common/nysed/files/residencyguidance-memo.7-19-18.pdf. While respondent may take appropriate steps to update and/or verify student information, as needed, respondent should immediately review its policies and procedures with respect to enrollment and registration to ensure compliance with applicable laws and regulations, as well as the Department’s guidance.
 Petitioner served the instant appeal on May 29, 2019; therefore, his representation that the students “moved back” to the in-district address must have occurred on or before that date.
 In any event, I note that petitioner submitted no evidence in support of this claim with the petition.