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Decision No. 18,327

Appeal of S.M., on behalf of her children, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 18327

(August 17, 2023)

Blodnick, Fazio & Clark, attorneys for petitioner, Edward K. Blodnick, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Matthew Guerra, Esq., of counsel

ROSA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her three children (the “students”) are not district residents.  The appeal must be sustained in part.

Petitioner enrolled the students in respondent’s district in February 2013, January 2018, and January 2019 based on the representation that they resided within the district (the “in-district address”).  In or around February 2023, respondent commenced a residency investigation based on its suspicion that the students resided outside of the district at their father’s residence (the “out-of-district address”).[1]  Respondent conducted surveillance of the in-district and out-of-district addresses on eight school day mornings.  On six of these days, the older student was observed at the in-district address.  Also on six occasions, the two younger students were observed at the out-of-district address.  Following notice and an opportunity to submit information concerning the students’ residency, respondent concluded that petitioner and all three students resided outside of the district and excluded them from its schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 20, 2023.

Petitioner argues that she and the two younger students temporarily left the in-district address due to family health issues while the third student remained at the in-district address.  She argues that all three students are entitled to attend respondent’s schools tuition-free.  Petitioner also seeks “[l]egal fees, cost[s], and disbursements.”

Respondent argues that its decision to exclude the students was reasonable.  It objects to petitioner’s request for monetary relief as outside the scope of an appeal to the Commissioner.

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 that 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 has sufficiently proven that she and the two younger students were temporarily absent from the district.  Petitioner asserts that she and the students temporarily relocated to the out-of-district address in September 2022, when the students’ grandmother was diagnosed with cancer and their grandfather had a heart attack.  Petitioner and the younger students thereafter left the residence to prevent the grandparents from contracting illnesses.  The older student, however, remained at the in-district address to care for the grandparents.  Respondent does not deny this explanation, which is consistent with its surveillance evidence.

Additionally, petitioner has demonstrated continued ties to the school community and efforts to return (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Collins, 44 id. 74, Decision No. 15,103).  With respect to community ties, petitioner’s parents and oldest son remained at their in-district address.  Petitioner further explains that she “regularly, routinely and frequently returned to the [in-district address] to care for [my oldest child] and my parents, and to assess when it would be reasonably safe for [petitioner and the children] to return permanently.”  With respect to her return, petitioner articulates a concrete plan to move back to the in-district address immediately after Easter 2023.  Indeed, it appears that this occurred:  petitioner has submitted an affidavit indicating that “[o]n or about April 17, 2023, the family medical emergencies subdued sufficiently enough for myself and [the two students] to safely return to the in-district home.”[2]  Accordingly, I find that petitioner has met her burden of proving that the students are district residents who were temporarily absent from their residence.

Finally, to the extent petitioner requests monetary relief, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law § 310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  As such, petitioner’s request for costs, fees and disbursements must be denied.

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


IT IS ORDERED that respondent admit the students to the schools of the district without the payment of tuition.



[1] Respondent further asserts that “it was known that another student was registered” at the in-district address.


[2] The record reflects that, after returning to the in-district address, respondent denied petitioner’s request to enroll the students given the pendency of this appeal.  Because “statuses such as residency and homelessness … may be fluid in nature,” a pending appeal to the Commissioner does not preclude a school district from enrolling students if their circumstances have changed (Appeal of G.D. and D.D., 59 Ed Dept Rep, Decision No. 17,797, appeal dismissed Matter of Dukes v Cold Springs Harbor Cent. School Dist. Bd. Of Educ. [Sup Ct, Albany County June 8, 2020, Walsh, J.]).