Appeal of J.S.G, on behalf of his child, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 18,473

(August 19, 2024)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

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

In the beginning of the 2023-2024 school year, 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”). 

On March 5, 2024, the student had a medical emergency and was taken to the hospital by the associate principal of the high school (“associate principal”).  While in the hospital, the student purportedly told the associate principal that petitioner resides outside the United States[1] and that her mother resides in New York City.  Thereafter, respondent’s director of attendance and registration surveilled the in-district address three times.[2]  She did not observe petitioner or his vehicle at the in-district address on any of those occasions.[3] 

In a letter dated March 13, 2024, the respondent informed petitioner that it had determined the student was not a district resident and would be excluded as of March 22, 2024.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 1, 2024.  

Petitioner asserts that both he and the student have resided with his mother (the student’s grandmother) 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 the petition should be dismissed for failure to exhaust administrative remedies.  Respondent contends that the residency determination excluding the student was neither arbitrary nor capricious, and petitioner has failed to set forth any evidence demonstrating that the decision to exclude was inappropriate. 

First, I must address two procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also contends that the appeal must be dismissed for failure to exhaust administrative remedies.  As a prerequisite to an appeal commenced pursuant to Education Law § 310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (Appeal of A.L., 58 Ed Dept Rep, Decision No. 17,506; Appeal of A.B., 57 id., Decision No. 17,316).  Section 100.2 (y) of the Commissioner’s regulations establishes procedures for determinations by a board of education or its designee of residency for purposes of eligibility to attend the district's public schools without the payment of tuition, and the Commissioner has previously held that, in light of section 100.2 (y), petitioners must avail themselves of the procedures established by the board of education, including procedures for review of a decision within the school district (see Appeal of A.L., 58 Ed Dept Rep, Decision No. 17,506; Appeal of A.F., 57 id., Decision No. 17,151).  Here, respondent’s March 13, 2024, letter advised petitioner that “[i]f you wish to dispute these findings, you may send a letter of appeal to the Deer Park School Board of Education” by March 22, 2024, and that the “decision of the Board may be appealed to the commissioner of [e]ducation.”  The record contains no evidence that petitioner filed such an appeal to respondent prior to commencing the instant appeal.  Therefore, the appeal must be dismissed for failure to exhaust administrative remedies.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on 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 not met his burden of proving that the student resides within respondent’s district.  Petitioner submits a credit card account summary, a mortgage statement, and the first page of a final order on petition for custody concerning the student dated July 7, 2023.  However, none of this evidence includes an address or otherwise indicates that petitioner or the student actually reside at the in-district address (see Appeal of Greene, 63 Ed Dept Rep, Decision No. 18,307).  Therefore, petitioner has failed to demonstrate that respondent’s determination was arbitrary and capricious.

Finally, the record reflects that petitioner recently filed a petition for the appointment of a guardian naming the student’s grandmother as the student’s guardian.  If the student’s circumstances change, petitioner may reapply to respondent’s district for admission.

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

THE APPEAL IS DISMISSED.

END OF FILE