Decision No. 18,318
Appeal of M.S., on behalf of her child, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.
Decision No. 18,318
(August 3, 2023)
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 leading to this appeal, petitioner and the student resided at an address within the district (the “in-district address”). In January 2023, petitioner and the student moved to a new location (the “out-of-district address”). Respondent’s registrar subsequently informed her that the new location was outside of respondent’s district. In response, petitioner indicated that she and the student would stay at the in-district address “for the time” being. Through surveillance and other evidence, respondent eventually learned that petitioner had not, in fact, returned to the in-district address. Following a hearing, respondent excluded the student as a non-resident by letter dated March 22, 2023. This appeal ensued. Petitioner’s request for interim relief was granted on April 10, 2023.
Petitioner admits that she and the student reside at the out-of-district address. She nevertheless argues that it would be “too costly” and “time consuming” for the student to switch schools. Petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend its schools without payment of tuition.
Respondent contends that its determination is supported by the evidence before it, including petitioner’s admission that she moved to the out-of-district address.
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).
By petitioner’s own admission, she and the student no longer reside in the district; thus, she has failed to meet her burden of demonstrating a clear right to the relief requested. While petitioner would prefer that the student remain in respondent’s district, this does not provide a legal basis for overturning respondent’s residency determination (see Appeal of Y.A., 62 Ed Dept Rep, Decision No. 18,182; Appeal of Koban, 49 id., Decision No. 16,025; Appeal of Martoccia, 42 id. 76, Decision No. 14,781). Accordingly, the appeal must be dismissed.
Petitioner retains the right to reapply for admission on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
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).