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Decision No. 18,413

Appeal of M.M., on behalf of her child, from action of the Board of Education of the Onondaga Central School District regarding residency.

Decision No. 18,413

(May 21, 2024)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Sara M. Richmond and Kate I. Reid, Esqs., of counsel

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

The student attended respondent’s schools as a district resident beginning in 2016.  During the 2022-2023 school year, petitioner asserted to respondent that she moved outside of the district while the student remained living with a relative within the district.  Respondent allowed the student to continue to attend its schools based on this representation.

In winter 2023, respondent conducted a residency investigation.  This demonstrated, through surveillance evidence, that the student resided with petitioner outside of the district (the “out-of-district address”).  The superintendent spoke with petitioner in spring 2023, informing her that the district required current proof of the student’s residency for her to remain enrolled.

In a letter dated July 20, 2023, respondent excluded the student from its schools effective August 18, 2023.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 22, 2023.

Petitioner admits that she and the student reside outside of the district but argues that the student is entitled to attend respondent’s schools tuition-free for the 2023-24 school year, the student’s senior year, based on the language of respondent’s policy 7131.  Petitioner maintains that the student resided in the district with the family member throughout the 2022-23 school year and, thus, only became a nonresident at the beginning of the 2023-24 school year.  As such, petitioner argues that policy 7131 allows the student to remain enrolled for her senior year in the district.

Respondent argues that the student became a nonresident when petitioner moved to the out-of-district address in June 2022.  Respondent further asserts that the district policy is inapplicable to the student’s residency for the 2023-24 school year.

Respondent’s policy 7131, “Non-Resident Students,” provides that

Resident students who become non-residents prior to the expiration of the school year may remain, with permission from the Superintendent, until the end of the semester.  If the student is eligible to graduate at the end of the current school year, he or she may remain, with permission from the Superintendent, until the end of the school year without a tuition charge.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner admits that the student does not currently reside in respondent’s district and has failed to prove the applicability of policy 7131 to her circumstances.  First, application of the policy is entirely within the discretion of the superintendent.  As such, petitioner lacks the ability to “compel such an exercise of discretion” (Appeal of V.B., 62 Ed Dept Rep, Decision No. 18,214). 

Second, respondent reasonably determined that policy 7131 did not apply because the student became a non-resident of respondent’s district prior to the commencement of her senior year.  An investigator engaged by respondent observed the out-of-district address on five separate days in February 2023.  On four of those days, the investigator observed the student leave the out-of-district address and travel to school.  Petitioner presents no evidence to the contrary.  Thus, respondent reasonably determined that petitioner moved out of the district sometime in early 2023.[1]

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




[1] It is true that respondent excluded the student after the 2023-2024 school year and that a residency determination cannot have “retroactive effect” (Appeal of A.L. and E.A.-L., 61 Ed Dept Rep, Decision No. 18,041; see Education Law § 2 [15] [school year begins on July 1]).  However, school districts have greater discretion to interpret and apply local policies, such as policy 7131, that exceed the right of tuition-free attendance in Education Law § 3202 (1).