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Decision No. 18,278

Appeal of K.V.T., on behalf of her children, from action of the Board of Education of the Bay Shore Union Free School District School District regarding residency.

Decision No. 18,278

(May 23, 2023)

Ingerman Smith LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Bayshore Union Free School District (“respondent”) that her children (the “students”) are not district residents and therefore, not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

Petitioner and the students previously attended respondent’s schools based upon petitioner’s representation that they resided at a location within the district (the “in-district address”).  In June 2022, respondent surveilled the in-district address based upon its suspicion that the students did not reside therein.  Respondent did not observe petitioner or the students at the in-district address over a period of five days.  Additionally, during multiple dates in September 2022, the investigator observed two vehicles registered to petitioner’s spouse at an address located outside of the district (the “out-of-district address”).

By letter dated September 20, 2022, respondent advised petitioner that the students were not district residents and would no longer be permitted to attend respondent’s schools after September 29, 2022.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 7, 2022.

Petitioner admits that she and the students reside at the out-of-district address.  She explains that family friends permitted her to use their in-district address for the purpose of enrolling the students in respondent’s schools.  Despite this admission, petitioner requests that the students be allowed to attend respondent’s schools tuition free.

Respondent contends that the petition must be dismissed for improper service, improper notice, and for failure to state a claim or establish a clear legal right to the relief requested. 

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).

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).

Petitioner admits that she, the student’s father, and the students do not reside at the in-district address.  Petitioner further indicates that she and her spouse used a friend’s address for the purpose of enrolling the students in respondent’s schools.  Petitioner’s spouse indicates that the family friend “suggested that [they] ... use his address so that we could enroll both of [his] daughters in the ... same school” that the family friend’s children attended.  As such, petitioner’s evidence submitted in support of her residency at the in-district address—including her vehicle registration, driver’s license, and a bank statement—is unpersuasive.  Petitioner has also failed to demonstrate, other than through a bare allegation, that her absence from respondent’s district is temporary or that she is attempting to obtain housing within respondent’s district.[1]

Utilizing another person’s address solely for the purpose of gaining entry to a desired school district is not a lawful basis for establishing residency.  Because the students are not physically present in respondent’s district, and petitioner admits that she and the students are presently living at the out-of-district address, I cannot find respondent’s determination that the students are not district residents to be arbitrary or capricious (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of Griffin, 58 id., Decision No. 17,447; Appeal of L.T., 56 id., Decision No. 17,047).  Accordingly, the petition must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.




[1] While petitioner has not met her burden of proof in this respect, I note that a student who temporarily relocates outside of her or his district of residence remains entitled to attend “when relocation to such temporary residence is a consequence of [a student’s] parent or person in parental relationship being called to active military duty, other than training” (Education Law § 3202 [1]).  Here, petitioner has not proven that the students ever resided within respondent’s district, let alone temporarily relocated elsewhere as a “consequence” of her spouse’s military service (see Appeal of Auguste, 56 Ed Dept Rep, Decision No. 16,940).