Appeal of M.Z., on behalf of her child, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 18,559

(April 28, 2025)

Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

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

Petitioner enrolled the student in the district in 2020 using an in-district address.  In March 2023, petitioner indicated that she had moved to another address within the district (the “in-district address”).  During the 2024-2025 school year, a letter sent to petitioner at the in-district address was returned as undeliverable.  This letter indicated that petitioner resided at an address outside of the district (the “out-of-district address”).

Respondent thereafter commenced a residency investigation.  It included surveillance of the in- and out-of-district addresses over the course of two weeks on random, non-consecutive days.  On October 7, 9, 11, 15, and 17, 2024, an investigator observed the in-district address from approximately 6:15 a.m. to 8:45 a.m. but did not observe petitioner or the student.  Another investigator observed the out-of-district address on the same dates.  Around 8:00 a.m. on each morning, this investigator observed the student and petitioner exiting the location, after which petitioner drove the student to the school he attended.    

By letter dated October 18, 2024, respondent informed petitioner that the student would be excluded as of October 25, 2024, because he did not reside within the district.  The letter invited petitioner to submit additional documentation in support of her residency (see 8 NYCRR 100.2 [y] [6]).  While petitioner did not submit any additional documents, she contacted a district employee on October 24, 2024 to assert that the results of the investigation were incorrect, and that she, in fact, resided at the in-district address.  Respondent excluded the student thereafter; this appeal ensued.  Petitioner’s request for interim relief was denied on November 5, 2024.

Petitioner asserts that she and the student reside at the in-district address.  She seeks a determination that the student is a district resident.

Respondent contends that the petition was never served upon the district and that its determination is supported by the evidence in the record.

The appeal must be dismissed for improper service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioner failed to personally serve the district clerk or another authorized individual.  Instead, the petition was placed in a mailbox at the district’s central registration office.  Petitioner did not submit a reply or otherwise address respondent’s contentions.  Accordingly, the appeal must be dismissed (Appeal of T.A., 63 Ed Dept Rep, Decision No. 18,367; Appeal of Lang, 62 id., Decision No. 18,164).

Even if not dismissed for this procedural error, the appeal would have been dismissed on the merits.  Education Law § 3202 (1) provides, in pertinent part:

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 submits a variety of documents that associate her family and student with the in-district address, including an affidavit of residency, assignment of a lease, a landlord/owner affidavit, the student’s birth certificate and social security card, and a bank statement.[1]  This documentary proof is insufficient to overcome respondent’s surveillance evidence, which consistently portrayed the student departing from the out-of-district address (see Appeal of J.M., 62 Ed Dept Rep, Decision No. 18,192; Appeal of Rahimi, 61 id., Decision No. 18,044; Appeal of R.V., 60 id., Decision No. 17,911).  Notably, no vehicles or people were observed entering or exiting the in-district address on each day of surveillance.  Accordingly, petitioner has failed to meet her burden of proof, and the appeal must be dismissed (see Appeal of Kerr, 62 Ed Dept, Decision No. 18,231; Appeal of Mauro, 58 id., Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).

THE APPEAL IS DISMISSED.

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