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Decision No. 18,424

Appeal of SHANTONE JENNINGS, on behalf of her child, from action of the Board of Education of the Marlboro Central School District regarding residency.

Decision No. 18,424

(July 1, 2024)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Marlboro Central School District (“respondent”) that her child (the “student”) is not a district resident.[1]  The appeal must be dismissed.

The student has attended respondent’s district since September 2020.  She was enrolled based upon petitioner’s representation that she resided at a location within the district (the “in-district address”).  In December 2022, petitioner emailed documents concerning her daughter to the district.  The student’s address was partially obscured on the form.  Respondent was nevertheless able to decipher the text, which was a location in Middletown, New York (the “out-of-district address”).

On April 18, 2023, the district’s social worker and school counselor visited the in-district address.  The student was absent from school that day.  The two employees observed “that the residence appeared to be vacant and the blinds were drawn.”  The two employees also spoke to “neighbors who indicated that they had not seen either the [s]tudent [] or the [p]etitioner for some time.”

On April 19, 2023, the superintendent spoke with petitioner and expressed his “opinion that [she and the student] were not residing in the district.”  Petitioner indicated that she had previously submitted a letter from her landlord attesting to her residency.

The superintendent spoke with the landlord later that day.  The landlord indicated that he “would see the [p]etitioner with her two children from time to time at the apartment.”  In a letter dated April 20, 2023, the superintendent informed petitioner of his determination that the student did not reside within the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on August 21, 2023.[2]

Petitioner asserts that she and the student reside at the in-district address.  She seeks a determination that the student is a district resident entitled to attend its schools tuition-free.

Respondent argues that its determination is supported by the evidence in the record.

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 (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 her burden of proving that she and the student are district residents.  Petitioner presents no evidence relevant to her residency.  Moreover, based on the evidence gathered by respondent as detailed above, I cannot find that its determination that the student is not a district resident was arbitrary and capricious.  Accordingly, the appeal must be dismissed (Appeal of O’Hare, 59 Ed Dept Rep, Decision No. 17,719; Appeal of Macchia, 51 id., Decision No. 16,299). 

Petitioner may reapply for admission to respondent’s schools on the student’s behalf if her living situation changes.




[1] It appears that respondent also sought to exclude another of petitioner’s children who attends the district.  I decline to impliedly include this child in this appeal as there is no information about the student.


[2] A stay order was not issued until that time as respondent voluntarily allowed the student to complete the 2022-2023 school year.