Appeal of J.A. and M.A., on behalf of their child, from action of the Board of Education of the Pelham Union Free School District regarding residency.

Decision No. 18,420

(June 18, 2024)

Stewart Lee Karlin Law Group, P.C., attorneys for petitioner, Daniel Edward Dugan, Esq., of counsel

Keane & Beane P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Pelham Union Free School District (“respondent”) that their child (the “student”) is not a district resident entitled to attend respondent’s schools.  The appeal must be dismissed.

Prior to the events giving rise to this appeal, the student attended respondent’s district based on a representation that he resided at a location within the district (the “in-district address”).  By letter dated November 17, 2022, respondent informed petitioners that it believed the student no longer resided at the in-district address.  In response, petitioners provided various documents bearing one or both of their names and the in-district address.

Respondent subsequently conducted a residency investigation.  On each of six school day mornings in February and March 2023,[1] an investigator observed the student leave the out-of-district address with petitioner M.A. or an adult female, at which time he was driven to school.[2]  The investigator also visited the in-district address on March 8, 2023.  Upon arrival, he spoke with petitioner M.A.’s niece, who informed him that she and her boyfriend rented the in-district address from petitioner M.A.  The niece indicated that no one else lived at that location.

On April 18, 2024, respondent informed petitioners that it had investigated and determined that they resided at the out-of-district address.  Respondent invited petitioners “to submit any information ... regarding [their] residency status” to respondent.  In response, petitioners submitted additional documentation.

By letter dated May 9, 2023, respondent concluded that the student did not reside within the district and would be excluded after the conclusion of the 2023-24 school year.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 29, 2023. 

Petitioners argue that the student and petitioner M.A. reside at the in-district address, while petitioner J.A. resides at the out-of-district address.  Petitioners assert that the student “has slept at the [in-district address], at a minimum, Sunday evenings through Thursday evenings.”  Petitioners further admit that the student has spent time at the out-of-district address but claim that this occurred “5 or less times.”  They seek a determination that the student is a resident of respondent’s district.

Respondent argues that its residency determination was reasonable and should be upheld.

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).

The fact that a child’s parent or guardian rents or owns property in the district or pays taxes in the district does not, in and of itself, establish residency for purposes of Education Law § 3202 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863).

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).

In support of their residency claim, petitioners submit letters, mortgage documents, tax returns, utility bills, paystubs, vehicle and voter registration, and written statements attesting to their residency at the in-district address.  This documentary evidence is unpersuasive when weighed against respondent’s investigatory 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 departing from the out-of-district address on six school mornings and confirmed with the current resident of the in-district address that neither the student nor petitioner M.A. resided there.[3]

Petitioners’ remaining contentions are contradicted by the evidence in the record.  While petitioners claim that the student has spent no more than five nights at the out-of-district address, he was observed leaving the out-of-district address on six school day mornings.  Additionally, while petitioners assert that the student “has slept at the [in-district address] ... Sunday evenings through Thursday evenings,” five of the six days of the surveillance were between Monday and Thursday.

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

THE APPEAL IS DISMISSED.

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