Appeal of WEIJUAN CHEN, on behalf of her son CODEY YANG, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 17,907

(August 10, 2020)

Frazer & Feldman, LLP, attorneys for respondent, Jonathan Heidelberger and Abigail A. Hoglund-Shen, Esqs., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her son, Codey Yang (“the student”), is not a district resident.  The appeal must be dismissed.

Petitioner and the student reside at a property in New Hyde Park, New York.  Since petitioner and her husband purchased their property in 2008, respondent has admitted petitioner’s children to its schools as district residents.

Sometime in fall 2019, respondent’s district registrar (“registrar”) conducted an audit of “all properties on or near the borders of the [d]istrict” and discovered that “the entirety of [p]etitioner’s property” is located outside of the district’s geographical boundaries.

By letter dated October 25, 2019, the registrar informed petitioner and her husband of the audit and respondent’s discovery that their property was “zoned exclusively for [a neighboring] [s]chool [d]istrict.”  The registrar indicated that she “would like to meet or speak with [petitioner and her husband] to discuss [the student’s] enrollment” and invited them to schedule an appointment.

In a letter dated November 11, 2019, entitled “[p]etition to [m]aintain [the] [s]tatus [q]uo,” petitioner and her husband asserted that “the district’s abrupt and unreasonable decision [might] cause tremendous emotional detriment to the [student] and [their] family.”  Petitioner and her husband asserted that the district had twice “[a]ssured” them that their property was located within its district — first in 2008, before they purchased the property, and again in 2010, before they “rebuilt the house.”  Further, they argued that a “decades-long precedent established” that residents of their home attended district schools, stating that the previous owners’ three children had all attended district schools, as had, they believed, “numerous generations of people” who had lived at their property over the “past ... 70 ... years.”  Petitioner and her husband further expressed concern that the student would be unable to adjust to a new school “in the middle of the year” and that their property value would drop by “$100,000” given the alleged undesirability of the neighboring school district.  Petitioner and her husband proposed that the district:  (1) allow the student to remain in its schools for another year to give them time to find a new home in “an equally good school district” and (2) “keep [the] status quo” for five years to allow them time to sell their property while still “zoned” for respondent’s district.

By letter dated January 10, 2020, the registrar informed petitioner and her husband that she had reviewed their submission but, based upon the Nassau County tax map, their “property is located entirely within [a neighboring school district] and no portion of it is in [respondent’s district].”  “Accordingly,” she wrote, “the admission of the [student] and his older sister to [respondent’s] schools was in error.”  The registrar advised petitioner and her husband that the student would be “allowed to stay in [k]indergarten” through the end of the 2019-2020 school year.  The registrar stated that, thereafter, petitioner and her husband would need to register the student in the neighboring school district.  Petitioner and her husband appealed this determination to respondent.  By letter dated February 11, 2020, respondent informed petitioner and her husband that it had denied their appeal.  This appeal ensued.  Petitioners’ request for interim relief permitting the student to continue attending respondent’s schools pending a decision on the merits was determined to be unnecessary by letter dated April 14, 2020, insofar as respondent had indicated that it would permit the student to attend its schools through June 30, 2020.

Petitioner contends that respondent’s determination is arbitrary and capricious and violates the “70-year tradition” by which her property has been zoned for respondent’s schools.  She argues that, if not overturned, the determination will cause “physical, emotional, and financial impact” on the student and her family.  Further, petitioner contends that respondent violated her constitutional right to due process by not holding a hearing; failed to address “many important issues” raised in her appeal; did not adequately explain where to send appeal documents when commencing an appeal to the Commissioner; and did not alert her that she might “need legal assistance” for her appeal.  Petitioner seeks a determination that the student is a resident of respondent’s district and entitled to attend its schools without the payment of tuition.

Respondent contends that its determination was neither arbitrary nor capricious.  Respondent explains that district policy does not permit the enrollment of nonresident students.  In support of its determination, respondent submits a copy of a Nassau County tax map indicating that petitioner’s property is located outside respondent’s district.  Respondent additionally denies that its previous admission of the student and his sister to its schools entitles the student or any other resident of the property to attend its school on a tuition-free basis going forward.

I will first address petitioner’s procedural challenges to respondent’s determination.  Section 100.2(y) of the Commissioner's regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that, prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child, or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner of Education (8 NYCRR §100.2[y]; Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178; Appeal of Clark, 46 id. 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (see Appeal of Ulloa, 58 Ed Dept Rep, Decision No. 17,479; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).

Although petitioner alleges that respondent’s process of notifying her of its decision was deficient in numerous respects – including its failure to explain the appeal process or advise her that she could consult an attorney –respondent complied with this requirement and petitioner, in fact, commenced a timely appeal.  Thus, I must reject any such alleged error.

Petitioner further alleges that respondent failed to address “many important issues” raised in her appeal.  Other than her conclusory statements, however, there is no basis to conclude that respondent failed to consider the issues raised by petitioner and her husband.  Respondent indicated in its February 11, 2020 letter that it had reviewed petitioner and her husband’s appeal.  This letter also explained the basis for respondent’s reasoning; namely, that petitioner’s property was not, in fact, located within respondent’s district.  Therefore, I find that respondent complied with its obligation to provide the basis for its determination as required by 8 NYCRR §100.2(y).  The mere fact that respondent disagreed with petitioner is insufficient to prove that respondent failed to consider her arguments (see Appeal of T.A., 58 Ed Dept Rep, Decision No. 17,566).

With respect to petitioner’s claim that respondent’s failure to provide her with a hearing violated her due process rights under the U.S. Constitution, a formal hearing is not required prior to a residency determination under the Commissioner’s regulations, as noted above (8 NYCRR §100.2[y][6]).  To the extent that petitioner seeks to challenge the regulation itself, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  A novel claim of constitutional dimension or facial challenge to the constitutionality of a law, policy or regulation should be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319).

Turning to the merits, 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). 

On this record, I find that petitioner has failed to meet her burden of proof.  Respondent has submitted a Nassau County tax map portraying petitioner’s property as located wholly outside of respondent’s district.  Petitioner does not dispute the validity of this map or the information portrayed therein and has failed to provide any evidence in support of her position.  Moreover, the record reflects that all of the taxes levied against the property are paid exclusively to the neighboring school district.  Therefore, since petitioner admits that she resides at the property with the student, I cannot find respondent’s determination that the student is not a district resident to be arbitrary, capricious or unreasonable (see e.g. Appeal of Tunison, 58 Ed Dept Rep, Decision No. 17,472; Appeal of Auguste, 56 id., Decision No. 16,940).

Petitioner’s argument that the district is bound by “tradition and ‘precedent’” to deem her property to be within its boundaries and permit the student to attend its schools is without merit.  It has long been settled that, in the context of making residency determinations pursuant to Education Law §3202, a school district’s mistake as to the actual school district in which a residence is located does not bind the district from later refusing to admit a child as a nonresident student.  Except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  A mistake by a school district representing that a certain property is located within the district does not vest any legal right in the residents of such property to attend the district’s schools on a tuition-free basis (Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487; Appeal of Prospero, 37 id. 62, Decision No. 13,804).  Thus, while I am sympathetic to petitioner’s situation, respondent was not estopped from correcting its prior mistake and determining that the student is not a district resident (see e.g. Appeal of M.F., 58 Ed Dept Rep, Decision No. 17,613; Appeal of Tunison, 58 id., Decision No. 17,472; Appeal of Gutierrez, 46 id. 222, Decision No. 15,487; Appeal of Perez, 42 id. 71, Decision No. 14,779; Appeal of Prospero, 37 id. 62, Decision No. 13,804).

Petitioner further argues that respondent’s determination will adversely impact the student.  Petitioner avers that the student “loves [his] teachers and his friends at [respondent’s] school and he does not want to leave.”  While regrettable, the fact that the student does not want to leave the school he has been attending and may have difficulty adjusting to a new school is not a sufficient basis for overturning respondent’s determination (see Appeal of M.M., 58 Ed Dept Rep, Decision No. 17,645; Appeal of A.V. and N.V., 56 id., Decision No. 16,928; Appeal of H.D., 52 id., Decision No. 16,525).

Petitioner also claims that respondent’s determination, if not overturned, will cause her property to drop in value by $100,000.  In support, petitioner attaches copies of real estate listings from an online real estate database, indicating that her property has an estimated market value of $893,340 and that her “immediate neighbor’s house” has an estimated market value of $690,202.  Petitioner argues that the difference between the market values for the two properties can be attributed to the fact that her property has been zoned for respondent’s district for “the past 12 years,” while her neighbor’s property is zoned for a neighboring school district. 

The question of whether petitioner’s property is located within respondent’s district is purely geographical in nature.  Any effect on the value of petitioner’s property stemming from this determination is incidental and does not influence whether the property is, in fact, within the district for purposes of residency.  Therefore, petitioner’s claim that her property will decrease in value as a result of respondent’s determination is not relevant to the relief she requests in this appeal:  that the student be deemed “a resident of [respondent’s] school district ... entitled to attend ... without the payment of tuition.”[1]

Therefore, on the record before me, I find that petitioner has failed to meet her burden of proving that respondent’s residency determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE