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Decision No. 18,336

Appeal of S.H., on behalf of her son, from action of the Board of Education of the Amherst Central School District regarding residency.

Decision No. 18,336

(August 23, 2023)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

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

In September 2022, petitioner sought to enroll the student in respondent’s district.  In connection therewith, petitioner submitted a lease agreement for the “basement suite” of a home located within the district (the “in-district address”).  After realizing that three other students had registered using this address, respondent began an investigation into petitioner’s residency.

 As part of this investigation, the district learned that petitioner had recently purchased a property located outside the district’s boundaries (the “out-of-district address”).  In January 2023, the district hired an investigator who conducted surveillance at the in-district and out-of-district addresses.  Over six days of surveillance, the student was observed leaving the out-of-district address to attend school on four mornings.  The student was not observed at the in-district address at any time.

By letter dated February 15, 2023, the district informed petitioner it believed the student did not reside in the district.  This letter indicated that petitioner could submit additional information by February 22, 2023.  In response, petitioner submitted copies of receipts for four rent payments made to the owner of the in-district address; copies of her vehicle registration and 2022 income taxes, both of which identified her address as the in-district address; and ten photographs depicting extensive renovations of a location petitioner claimed to be the out-of-district address. 

“[S]hortly after” receiving the February 15, 2023 letter,[1] petitioner informed the district that she and the student had moved from the in-district address to live with a friend at a different location within the district (the “second in-district address”).

On or about February 24, 2023, the Amherst Town Building Inspector informed respondent that the in-district address was not approved for rental of the attic or basement.  Additionally, one owner of the in-district address stated that petitioner and the student moved out as of February 21, 2023 while the other owner indicated that petitioner and the student had never lived at the in-district address.

By letter dated February 24, 2023, respondent informed petitioner of its determination that the student was not a resident and would be excluded from the district on March 3, 2023.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 8, 2023.[2]

Petitioner asserts that the student has resided within the district during the entire 2022-23 school year, first at the in-district address and then at the second in-district address.  With respect to the out-of-district address purchased by petitioner, she asserts that she cannot live there as it is “uninhabitable.”  Petitioner seeks a determination that the student is entitled to attend respondent’s schools tuition-free.

Respondent argues that its residency determination was rational and supported by the evidence before it, including its surveillance.

First, I must address a procedural issue.  By letter dated June 16, 2023, respondent sought permission to submit additional affidavits and exhibits, including a surveillance report dated June 1, 2023 and an affidavit from its superintendent.  In these affidavits, respondent asserts that it conducted eight additional days of surveillance in April and May 2023 that further support its determination.  The Commissioner has the discretion to consider additional evidence that was not submitted at the local level (e.g., Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; Appeal of Leach, Jr., 58 id., Decision No. 17,653), particularly with respect to disputes regarding issues of residency (Appeal of V.G., 62 Ed Dept Rep, Decision No. 18,185; see generally Appeal of G.D. and D.D., 59 Ed Dept Rep, Decision No. 17,797, Matter of Dukes v Cold Springs Harbor Cent. School Dist. Bd. Of Educ.; Supreme Court, Albany County (Walsh, J.); Decision/Order/Judgment dismissed petition to review [observing that “[s]tatuses such as residency and homelessness … may be fluid in nature”]).  Petitioner did not submit a reply or otherwise object to the admission of this evidence.  Therefore, I have accepted this evidence and considered it in reaching my determination.

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 failed to prove that the student is a district resident.   Respondent conducted surveillance on 14 school day mornings in spring 2023 and:  (1) directly observed the student departing the out-of-district address on eight of these mornings; and (2) never observed the student departing the in-district address or the second in-district address.  Petitioner’s claim that she and the student spent 85 percent of their time at the in-district address is inconsistent with the surveillance evidence (see Appeal of J.B., 63 Ed Dept Rep, Decision No. 18,323; Appeal of Lajuett, 60 id., Decision No. 17,919).  Petitioner did not submit a reply or otherwise respond to respondent’s evidence.  As such, I cannot conclude that respondent’s determination was unreasonable.

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




[1] While respondent does not indicate when this conversation occurred, it appears it took place between February 15 and 24, 2023.


[2] I further directed respondent’s homeless liaison to examine petitioner’s housing status to determine if the student was homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §§ 11431 et seq., “McKinney Vento”).  Respondent investigated and determined that the student was not homeless in late March 2023.  Petitioner has not appealed this determination.