Appeal of ANTOINETTE HAYES, on behalf of her children, from action of the Board of Education of the Kings Park Central School District regarding residency.

Decision No. 18,482

(August 21, 2024)

Ingerman Smith, LLP, attorneys for respondent, Matthew Guerra and Mary Anne Sadowski, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Kings Park Central School District (“respondent”) that her four children (the “students”) are not district residents.  The appeal must be dismissed.

Prior to the events described herein, petitioner and the students resided within respondent’s district.  At the beginning of the 2023-2024 school year, mail sent by the district to petitioner was returned by the postal service with the notation “return to sender.”  This mail provided a forwarding address for a post office box, the time for which had expired.  District staff were also unable to reach petitioner by telephone. 

By letter dated January 8, 2024, respondent’s assistant superintendent for pupil personnel services (“assistant superintendent”) determined that the students were not district residents.

On January 9, 2023, a district employee visited petitioner’s home.  The individual who answered the door indicated that petitioner’s family had sold the home and moved out in September 2023.  After this visit, the assistant superintendent reached petitioner by telephone, who confirmed that she and the students no longer lived within the district. 

In an email dated January 11, 2024, petitioner asserted that her “current lease” outside of the district “expire[d] ... [on] February 28” and that she was “in current negotiations” to obtain a rental property within respondent’s district.  Respondent’s superintendent replied on January 16, 2024, informing petitioner that the students would be excluded after the current semester “unless [she could] show that [her] negotiations for a rental here in Kings Part [were] successful.”  This appeal ensued.  Petitioner’s request for interim relief was denied on January 23, 2024.

Petitioner contends that the students’ absence from the district is temporary because the family intends to rent a residence within the district.  She seeks a determination that her children are district residents entitled to attend respondent’s schools without payment of tuition.

Respondent contends that petitioner has not demonstrated a concrete plan to return to the district sufficient to establish her residency therein.

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).

Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Where a petitioner asserts that an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  An avowed intent to return to a district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective and a concrete plan thereto (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of J.V., 44 id. 421, Decision No. 15,218; Appeal of Collins, 44 id. 74, Decision No. 15,103). 

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 failed to meet her burden of proving that the students are temporarily absent from the district.  Petitioner claims that she intends to return to the district “within six months.”  As proof, she submits an email showing that she submitted a rental application for a property within respondent’s district on January 10, 2024.  This falls short of demonstrating a “concrete plan” to return to respondent’s district, let alone “substantial progress” thereto (Appeal of Orena, 62 Ed Dept Rep, Decision No. 18,168; Appeal of Kerley, 60 id., Decision No. 17,915; compare Appeal of S.M., 63 Ed Dept Rep, Decision No. 18,327).  Petitioner also generally asserts, without supporting evidence, that the students “are involved in numerous sports programs within Kings Park.”  This does not establish the family’s continuing ties to the community or intent to return (Appeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022).  Therefore, petitioner has not met her burden of proof.

THE APPEAL IS DISMISSED.

END OF FILE