Appeal of MICAEL SILVA, on behalf of his child, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 18,411

(May 21, 2024)

Guercio & Guercio LLP, attorneys for respondent, Margaret Goodman, Esq., of counsel

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

In 2023, respondent enrolled the student in its schools based upon petitioner’s representation that he and the student resided at an address within respondent’s district (the “in-district address”).  However, based on the student’s registration paperwork, respondent suspected that the student actually resided at a home outside of the district (the “out-of-district address”).

In fall/winter 2023, the district conducted a residency investigation.  An investigator conducted six days of surveillance of the in-district and the out-of-district addresses between 5:30 and 8:30 a.m.  On two of these days, the investigator surveilled the in-district address but observed no activity.  On the other four days, the investigator observed an adult female depart the out-of-district address with the student, after which time the adult drove the student to school.

In a letter dated December 7, 2023, respondent’s superintendent informed petitioner that the district had reason to believe that the student did not reside therein.  The investigator hand-delivered this letter to petitioner’s brother-in-law at the in-district address on December 11, 2023.  The parties present divergent accounts of what transpired next.  Petitioner alleges that his brother-in-law answered the door and explained his relationship to petitioner.  Respondent alleges that the brother-in-law stated that petitioner and his spouse “did not live there.” 

On December 21, 2023, petitioner met with the district’s residency officer and registrar to discuss the student’s residency.  During this meeting, petitioner asserted that he split his time between the in-district and out-of-district addresses, with approximately 40 percent of the time spent within the district.  He further asserted that the student slept at the in-district address “100% of the time.”

On January 24, 2024, respondent’s residency officer notified petitioner of the district’s final determination that the student was not a district resident and would be excluded as of February 16, 2024.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 20, 2024.

Petitioner asserts that both he and the student have resided with his spouse and other family members at the in-district address since August 2023.  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that, as demonstrated by its surveillance evidence, petitioner resides at the out-of-district address.  As such, respondent argues that its determination to exclude the student from its schools cannot be considered arbitrary or capricious.

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 affidavits executed by him and the owner of the in-district address attesting to his and the student’s residency therein.  He also submits an insurance declaration, a bank statement, and a telecommunications bill bearing his name and the in-district address. 

This documentary evidence is unpersuasive when weighed against 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).  As indicated above, an investigator observed the student exiting the out-of-district address with an adult female on four of the six days of surveillance.  On the two other days, neither petitioner nor the student were observed at the in-district address. 

Petitioner presents two arguments in response.  First, he suggests that the student was observed at the out-of-district address because he and the student are “often ... there in the morning.”  According to contemporaneous notes of the December 21, 2023 meeting, petitioner asserted that “he drives back to [the out-of-district address] each day and arrived at 6:30 a.m.”  However, this assertion is contradicted by the observations of the investigator, who did not observe any vehicles arriving at the out-of-district address after he began surveillance at 5:30 a.m. on all four days of surveillance.  Petitioner did not submit a reply or otherwise respond to this assertion.  Therefore, I find respondent’s evidence more persuasive.

Second, petitioner denies that his brother-in-law stated that petitioner “did not live” at the in-district address.  Even assuming petitioner’s version of these events, it would not affect the outcome of this appeal as respondent has produced surveillance evidence that petitioner has failed to rebut or explain.  Thus, I find that respondent’s residency determination is supported by the evidence in the record (see Appeal of T.M., 58 Ed Dept Rep, Decision No. 17,496).

THE APPEAL IS DISMISSED.

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