Decision No. 18,333
Appeal of JEET JAIKISSOON, on behalf of his children, from action of the Board of Education of the Eastchester Union School District regarding residency.
Decision No. 18,333
(August 22, 2023)
Keane & Beane, P.C., attorneys for respondent, Susan E. Fine, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination by the Board of Education of the Eastchester Union School District (“respondent”) that his children (the “students”) are not district residents. The appeal must be dismissed.
Petitioner is the students’ father and resides within respondent’s school district (the “in-district address”). Petitioner asserts that although there is no formal custody agreement, he has “sole custody” of the students, who have attended respondent’s schools as district residents since the 2017-18 school year. Petitioner further asserts that the students reside with him at the in-district address but occasionally visit the students’ mother, who resides outside of the district (the “out-of-district address”) on some weekends, holidays, and summers.
In or around November 2021, respondent commenced an investigation of the students’ residency. By letter dated November 16, 2021, respondent notified petitioner that it had reason to believe that the students were not district residents based on surveillance conducted at the out-of-district address. Respondent explained that the surveillance consistently depicted the students leaving from and returning to the out-of-district address on “several days.”
In a letter dated November 29, 2021, petitioner asserted that the students moved in with their mother at the out-of-district address in response to the COVID-19 pandemic when the school moved to online learning. Petitioner further indicated that, in September 2021, the students continued to stay with their mother at the out-of-district address “on a regular basis” because petitioner was returning to work, and the students could not stay at the in-district address unsupervised. Petitioner also indicated that the students stayed at the out-of-district address in connection with sports activities. Additionally, petitioner indicated that after the students received COVID-19 vaccinations in the next few days, the students’ mother would stay at the in-district address with the students. By letter dated December 3, 2021, respondent notified petitioner of its determination that the students could continue to attend respondent’s school district based on his representation that the students would soon resume residing with petitioner at the in-district address.
Respondent thereafter commenced further investigation into the students’ residency. An investigator conducted six days of surveillance at both the in-district and out-of-district addresses on six dates in March 2022. The investigator observed one or both of the students exiting the out-of-district address on five of these mornings. Based upon the results of the investigation, the district concluded that the students resided at the out-of-district address and, therefore, were not district residents. In an email to respondent dated May 12, 2022, petitioner indicated that there were “very good reasons” that the students were seen exiting their mother’s house at the out-of-district address, including activities that were held outside of the district.
The investigator then conducted surveillance at both the in-district and out-of-district addresses on six dates in May 2022; again, he observed one or both of the students exiting the out-of-district address on five out of six mornings. On June 24, 2022, respondent informed petitioner of its determination that the students were not district residents and, therefore, would be excluded from respondent’s schools effective September 2022. This appeal ensued. Petitioner’s request for interim relief was granted on August 19, 2022.
Petitioner argues that the students live with him at the in-district address and that the students were observed departing from the out-of-district address in connection with “activities and sports.” He seeks a determination that the students are residents of respondent’s district and entitled to attend its schools tuition-free.
Respondent contends, relying primarily on its surveillance evidence, that the students physically reside at 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).
Petitioner does not dispute respondent’s surveillance evidence but asserts that the students frequently left for school from the out-of-district address due to sports activities. However, petitioner has not explained, through a calendar or schedule, why sports or after school activities necessitated the students’ presence at the out-district address. Additionally, contrary to petitioner’s suggestion that the students almost always “return home to Eastchester,” the students were never observed leaving for school from, or returning from school to, the in-district address on school day mornings (see Appeal of Fisher, 57 Ed Dept Rep, Decision No. 17,349; Appeal of a Student Suspected of Having a Disability, 51 id., Decision No. 16,292). Thus, even if petitioner is correct that the surveillance aligned with sports-related events or other circumstances—including a child’s twenty-first birthday party that was allegedly celebrated over two consecutive nights in March 2022—respondent’s surveillance nevertheless depicted the students departing from the out-of-district address on 10 out of 12 days. As such, it was eminently reasonable for respondent to conclude that the students spend the majority of their time at the out-of-district address—particularly in light of its previous investigation into the students’ residency.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The investigator observed no activity on the sixth day, March 18, 2022.
 In a letter dated July 26, 2022, the Office of Counsel returned a copy of the petition served on July 21, 2022 because it was not properly verified. In this letter, the Office of Counsel indicated to petitioner that, if a corrected petition was served and filed within two weeks of the July 26, 2022 letter, the appeal would be deemed to be initiated on the day the petition was originally served on respondent. Petitioner complied with these instructions.
 While the surveillance also appears to have depicted petitioner, I have assumed without deciding that petitioner resides at the in-district address. As such, petitioner was obligated to prove that the students’ time is essentially divided between the in- and out-of-district addresses (see Appeal of Passaro, 63 Ed Dept Rep, Decision No. 18,322).