Decision No. 18,192
Appeal of J.M, on behalf of her child, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.
Decision No. 18,192
(August 29, 2022)
Bernadette Gallagher-Gaffney, Esq. attorney for respondent
ROSA., Commissioner--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her child (“the student”) is not a district resident. The appeal must be dismissed.
Prior to the events giving rise to his appeal, the student attended respondent’s schools as a district resident. On December 1, 2021, respondent notified petitioner that the student was not entitled to attend the district’s schools on the basis that the student’s residence was not located within the district. Petitioner appealed this determination. Respondent thereafter convened a hearing on January 5, 2022.
At the hearing, petitioner testified that she lived at an address within the district (the “in-district address”) with her mother, stepfather, two sisters and the student. Petitioner further stated that she sometimes stayed with her boyfriend at a residence located outside of the district (the “out-of-district address”). Petitioner asserted that the student sometimes stayed with her at the out-of-district address if someone tested positive for COVID-19 at the in-district address, or if she was away on a work assignment. Petitioner submitted documentary evidence—her passport, bank accounts, credit cards, tax returns, car insurance, and the student’s birth certificate—that identified her home address the in-district address.
At the hearing, an investigator engaged by the district testified concerning a residency investigation his company conducted regarding petitioner and the student. The investigation, which included photographic evidence, revealed the following:
- On October 20, 2021, the investigator observed no activity at the in-district address in the morning despite the student being present and on time for school.
- On November 17, 18, 19, 22, 23, and 24, 2021, the investigator observed petitioner and the student exiting the out-of-district address in the morning.
After the hearing, a hearing officer determined, by letter dated February 17, 2022, that the student was not a district resident. The hearing officer largely based her determination on the fact that petitioner and the student were observed at the out-of-district address on six separate occasions, but never at the in-district address. The hearing officer further found that petitioner’s explanation for her presence outside of the district—that she and the student did so whenever a family member tested positive for COVID—was not credible. This appeal ensued. Petitioner’s request for interim relief was denied on March 14, 2022.
Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools.
Respondent contends that its residency determination was rational and supported by the record.
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).
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 meet her burden of demonstrating that the student may attend respondent’s schools as a district resident. On appeal, petitioner submits several utility bills and income tax returns from 2015 and 2020 bearing her name and the in-district address. She also submits a deed demonstrating that her mother owns the in-district address. This documentary proof, however, is insufficient to overcome respondent’s surveillance evidence, which exclusively portrayed the student departing from the out-of-district address on school-day mornings (see Appeal of Rahimi, 61 Ed Dept Rep, Decision No. 18,044; Appeal of R.V., 60 id., Decision No. 17,911). Petitioner offers no explanation for the surveillance evidence in the petition and did not submit a reply. Accordingly, I find that petitioner has failed to meet her burden of proof, and the appeal must be dismissed.
THE APPEAL IS DISMISSED.
END OF FILE
 While not required by 8 NYCRR 100.2 (y), it appears that respondent’s practice is to conduct a formal hearing presided over by a hearing officer when a parent appeals a district-level residency decision (e.g., Appeal of Jones, 60 Ed Dept Rep, Decision No. 17,981; Appeal of Kumar, 58 id., Decision No. 17,573).
 Petitioner testified that she took two such trips during the preceding year.
 Respondent also argues that the appeal should be dismissed because the notice of petition does not contain the language required for a petition containing a stay request. I do not find that this is a basis to dismiss the appeal (see Appeal of B.D., 61 Ed Dept Rep, Decision No. 18,016 [finding that a defect in the copy of a verification served on respondent was insufficient to bar filing of the pleading]; Appeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949). The only potential remedy for such deficiency would be refusing to consider petitioner’s request for interim relief.
 Petitioner also failed to appeal respondent’s adverse credibility determination. With respect to credibility determinations, the Commissioner will not substitute her judgment for that of local school officials unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).