Appeal of E.G., on behalf of his children, from action of the Board of Education of the New Hyde Park-Garden City Park Union Free School District regarding residency.

Decision No. 18,311

(July 31, 2023)

Leandre M. John, Esq., attorney for petitioner

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (“respondent” or the “district”) that his children (the “students”) are not district residents.  The appeal must be dismissed.

In February 2022, petitioner purchased a home within respondent’s school district (the “in-district address”) under the name of a business entity.  After initially declining to do so, respondent enrolled the students as district residents in June 2022.  Nevertheless, suspecting that the students did not reside in the district, respondent conducted surveillance of both the in-district address and a location outside of the district (“the out-of-district address”).  Over eight days of surveillance, the students were observed entering a family car at the out-of-district residence in the morning and driven to school on two occasions.  The students were not observed at the in-district address.  The investigator also spoke to two neighbors at the in-district address, one of whom stated that “the children come by on weekends ... but not during the week.”  Another commented that she “ha[d] seen the parents but not the children.”

By letter dated November 10, 2022, the district notified petitioner that it had reason to believe that the students were not residents.  The letter invited petitioner to submit information concerning the students’ right to attend school in the district (see 8 NYCRR 100.2 [y] [6]).  Petitioner thereafter submitted additional documents, including copies of school and general tax bills for the in-district address in the name of petitioner’s business entity; a bank statement for the business entity at the in-district address; and utility bills for the in-district address.

By letter dated November 14, 2022, the district notified petitioner of its determination that the students did not reside within the district and would be excluded as of November 30, 2022.  This appeal ensued. Petitioner’s request for interim relief was denied on December 7, 2022.

Petitioner argues that he and his family reside at the in-district address.  He asserts, among other things, that the students’ grandparent occasionally cares for the students at the out-of-district address after school.  Petitioner seeks a determination that the students are entitled to attend respondent’s schools tuition-free.

Respondent argues that its residency determination was rational and supported by the evidence before it, including its surveillance.

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).

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 failed to satisfy his burden of demonstrating that the students are district residents. On appeal, petitioner submits a copy of a tax bill, copies of two months of a utilities bill, and copies of the students’ passes for the North Hempstead community park and pool.  This documentary proof, however, is insufficient to overcome respondent’s surveillance evidence, which exclusively portrayed the students departing from the out-of-district address on school-day mornings (see Appeal of J.M., 62 Ed Dept Rep, Decision No. 18,192; Appeal of Rahimi, 61 id., Decision No. 18,044; Appeal of R.V., 60 id., Decision No. 17,911).[1]  Moreover, contrary to petitioner’s argument, a neighbor’s statement that “the children come by on the weekends” does not establish that the students spend the majority of their time at the in-district address.[2]

Petitioner’s remaining explanations— that he and his spouse have full-time jobs; that his spouse works as a nurse providing at-home care, which frequently involves overnight care; and that “on most occasions” he drops the children at the out-of-district address—are unsupported by any evidence.  Such assertions are insufficient to establish that the students reside at the in-district address, particularly in the face of contrary surveillance evidence (see Appeal of Kerr, 62 Ed Dept, Decision No. 18,231; Appeal of Mauro, 58 id., Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644). Accordingly, petitioner has failed to meet his burden of proof, and the appeal must be dismissed.

To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.

THE APPEAL IS DISMISSED.

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