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Decision No. 18,285

Appeal of C.D., on behalf of her child, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 18,285

(May 25, 2023)

Frazer & Feldman, LLP, attorneys for respondent, Bryan Georgiady, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination by the Board of Education of the Malverne Union Free School District (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be dismissed.

The student previously attended respondent’s district as a homeless student.  At the end of the 2021-2022 school year, respondent determined that the student was no longer homeless and excluded her from the district.

In September 2022, the student re-enrolled in respondent’s district as a resident based upon petitioner’s representation that she and the student resided within the district (the “in-district address”).  Respondent re-enrolled the student and subsequently investigated her residency.  This investigation concluded that the student resided at an out-of-district address (the “out-of-district address”).  Following notice and an opportunity to submit information concerning her residency, respondent excluded the student from its schools by letter dated December 9, 2022.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 23, 2023.

Petitioner argues that she and the student reside at the in-district address and that the student is entitled to attend respondent’s schools tuition-free.

Respondent argues that the petition must be dismissed on procedural grounds and on the merits.

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). 

Respondent’s surveillance evidence revealed petitioner and the student leaving the out-of-district address, where petitioner’s family members reside, on numerous occasions from October 27, 2022 through November 29, 2022.  This directly contradicts petitioner’s claim that she stays at the in-district address seven nights per week.  Additionally, while petitioner produced documentary evidence consisting of mail addressed to her at the in-district address, a non-owner/renter’s affidavit, and a lease, such evidence is not dispositive in the face of contrary surveillance (Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).  Accordingly, petitioner failed to meet her burden to prove that respondent’s residency determination was arbitrary and capricious.

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