Decision No. 18,168
Appeal of PAUL and MARY ORENA, on behalf of their children, from action of the Board of Education of the Cold Spring Harbor Central School District regarding residency.
Decision No. 18,168
(August 2, 2022)
Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel
ROSA., Commissioner.--Petitioners challenge the determination of the Board of Education of the Cold Spring Harbor Central School District (“respondent”) that his two children (the “students”) are not district residents. The appeal must be dismissed.
Petitioners and the students previously resided within respondent’s district and attended its schools. In fall 2021, petitioners were evicted from their in-district residence due to non-payment of rent. Thereafter, they relocated to a residence located outside of the district, which they own (the “out-of-district address”).
On November 22, 2021, petitioners met with respondent’s superintendent and deputy superintendent to discuss their residency. Petitioners indicated that they intended to rent a home within the district. Respondent afforded petitioners several weeks to do so.
By letter dated December 13, 2021, the superintendent excluded petitioners’ children on the basis on non-residency. The superintendent reasoned, in part, that “[a]lthough you have expressed your intention to secure a [D]istrict residence, to date, you have remained at the [out-of-district] residence.” The students were excluded from the district effective December 23, 2021. This appeal ensued. Petitioners’ request for interim relief was denied on December 30, 2021.
Petitioners contend that they are “temporarily” absent from respondent’s district. They further assert that they are “currently engaged in moving back.” Petitioners request a determination that the students are district residents.
Respondent argues that petitioners reside at the out-of-district address and have not demonstrated any efforts to return to respondent’s district.
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 ). “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 ; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).
Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827). Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827). Where a petitioner asserts than an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).
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).
Petitioners have failed to meet their burden of proving that they are temporarily absent from respondent’s district. Although petitioners assert that they “authorized the [D]eputy [S]uperintendent” to communicate with their realtor “to discuss rental negotiations currently in progress,” they submit no evidence or assertions in support thereof. Indeed, the only evidence submitted by petitioners is a copy of the December 13, 2021 exclusion letter. Thus, petitioners have failed to prove that they have engaged in efforts to return to the district and the appeal must be dismissed (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).
Petitioners retain the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to present any additional information to respondent for consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 While petitioners have a third child, the record reflects that respondent permitted this student to complete the 2021-2022 school year, his senior year.
 Pragmatically, the students would not be excluded until January 3, 2022, the day that respondent’s schools resumed instruction after winter break.
 The deputy superintendent avers that he spoke with the realtor, but that she failed to offer any information suggesting that petitioners were moving to the district.