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Decision No. 18,335

Appeal of K.H., on behalf of his child, from action of the Board of Education of the Brewster Central School District regarding residency.

Decision No. 18,335

(August 23, 2023)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Gregory R. Picciano, Esq., of counsel.

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Brewster Central School District (“respondent”) that his child (the “student”) is not a district resident.  The appeal must be dismissed.

Petitioner maintains that he and the student have resided within the district for two years.[1]   On June 15 and July 15, 2022, the district requested updated residency information from families whose leases for in-district properties had expired.  According to respondent, petitioner did not respond to these letters. 

On January 24, 2023, respondent’s residency officer visited the in-district address.  He spoke with the landlord, who stated that neither petitioner nor the student were home.  Thereafter, respondent conducted further investigation of petitioner’s residency, including surveillance of the in-district address.

By letter dated March 20, 2023, the district registrar notified petitioner that it suspected he did not reside within the district.  Petitioner met with district officials to discuss this determination on March 28, 2023.  Following that meeting, respondent notified petitioner that the student was not entitled to attend school in its district based upon:  (1) petitioner’s failure to respond to the registrar’s requests for updated residency documentation; (2) the January 24, 2023 home visit; (3) a statement from the bus driver that the student had never taken the bus from the in-district address; (4) petitioner’s ownership of an active utilities account at an address in Mahopac, New York (the “out-of-district address”), and (5) surveillance demonstrating that petitioner and the student were physically present at the out-of-district address.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 20, 2023.

Petitioner maintains that he and the student reside at the in-district address.  Petitioner also argues that the residency hearing lacked “judicial impartiality” and deprived him of his due process rights under the federal Constitution.  Further, petitioner maintains that respondents have utilized unlawful policies to target students they deem difficult or undesirable for expulsion in violation of Title VI of the Civil Rights Act and the Americans with Disabilities Act (ADA).  For relief, petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend school without payment of tuition. 

Respondent claims that its residency determination was reasonable and that an appeal to the Commissioner is not the proper forum to adjudicate civil rights or ADA claims.

First, I must address two preliminary matters.  An appeal to the Commissioner is not the proper forum in which to raise alleged violations of civil rights laws such as the ADA or Title VI of the Civil Rights Act (Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001, judgment dismissing petition to review, Matter of Moss v New York State Educ. Dept. et al., Sup  Ct, Albany County [Ferreira, J.]; May 16, 2022; Appeal of Zlotnik and Hartman, 53 id., Decision No. 16,589).  Therefore, I decline to consider these claims.

Additionally, petitioner’s argument that respondent did not observe due process in reaching its decision is without merit.  The State Education Department has promulgated regulations to ensure that parents or guardians receive notice and an opportunity to present evidence concerning their residency prior to exclusion (8 NYCRR 100.2 [y] [6]).  The Commissioner has long held, consistent with principles of administrative due process, that this does not require a formal hearing or the right to be represented by counsel (Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178; see generally Chrisley v. Morin, 126 AD2d 977, 978 [4th Dept 1987] [holder of women’s business enterprise certification entitled to notice and opportunity to be heard, but not a formal hearing, prior to decertification]).[2]  Here, petitioner admits that he received prior notice of respondent’s preliminary determination that he did not reside within the district and an opportunity to submit information to the district’s residency officer.  Thus, I find that petitioner received all the process he was due under 8 NYCRR 100.2 (y) (6).

Turning to 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).

Petitioner has not met his burden of proving that the student resides within respondent's district.  As evidence, petitioner submits a copy of his driver’s license reflecting the in-district address and a lease agreement for the in-district address dated March 1, 2023.  While this documentary evidence is entitled to some weight, it is not dispositive in light of respondent’s surveillance evidence (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).[3]

As indicated above, an investigator observed the out-of-district address on ten days in March 2023.[4]  He observed the student exiting the out-of-district address on five of these mornings.  While he did not see the student on the remaining five days, he confirmed that the student was absent from school on four of those days.[5]  Petitioner presents no explanation on appeal as to why the student was observed at the out-of-district address.  Without any such explanation, this surveillance constitutes persuasive evidence that petitioner and the student do not reside within the district—and the appeal must be dismissed (Appeal of Montreuil, 63 Ed Dept Rep, Decision No. 18,314; Appeal of D.K., 62 id., Decision No. 18,231; compare Appeal of V.G., 62 Ed Dept Rep, Decision No. 18,185).

I have considered petitioner’s remaining contentions and find them to be without merit.




[1] The District Residency Officer indicates that the student previously attended the district’s high school but does not indicate for how long. 


[2] To the extent petitioner contends otherwise, an appeal under Education Law § 310 is an inappropriate forum to challenge the Commissioner’s regulations (Appeal of Beran, 58 Ed Dept Rep, Decision No. 17,528).


[3] While petitioner also submits a tax and utility bill, these documents have no probative value as they are in the name of petitioner’s landlord, not petitioner.


[4] In addition, respondent submits a surveillance report dated April 10, 2023.  This report provides additional information (including photographs) concerning the 10 days of surveillance in March 2023 and details eight additional instances of surveillance conducted in February and March 2023. Given its date, respondent could not have possessed this report when it issued it March 28, 2023 residency determination.  Therefore, I have only considered this report to the extent it contains further information corroborating the investigator’s observations of the 10 dates in March 2023.


[5] The investigator indicated that the student was likely absent on the tenth day but “need[ed] to confirm” that fact.