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

Decision No. 18,571

(June 16, 2025)

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

ROSA., Commissioner.--Petitioner appeals a 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. 

Prior to the events leading to this appeal, petitioner and the student resided within respondent’s district (the “in-district address”).  During the 2023-2024 school year, the district received information that petitioner and the student did not reside therein.  Respondent conducted five days of surveillance of the in-district address in February and March 2024.  On each day, an investigator knocked at the door of the in-district address but no one answered.  The investigator conducted five additional days of surveillance in May and June 2024.  The investigator observed the student and petitioner’s vehicle at an address in Hempstead, New York (the “out-of-district address”).  Respondent conducted an additional five days of surveillance in October 2024.  As before, no one responded when the investigator knocked at the in-district address on each day of surveillance.

On October 30, 2024, the district sent petitioner a letter indicating that the student would be excluded from the district as of November 15, 2024.  On November 4, 2024, petitioner contacted respondent, asserting that she “work[ed] two jobs, … was taking care of her parents,” and resided at the in-district address “on weekends only.”  This appeal ensued.  Petitioner’s request for interim relief was denied on November 14, 2024.

Petitioner contends that she and the student are temporarily residing at the out-of-district address to provide medical care to her parents.  In support thereof, she submits documents reflecting that her employer approved a request to utilize the Family Medical Leave Act (FMLA) to care for one of her parents.  Petitioner requests a determination that the student is a district resident entitled to attend its schools without payment of tuition.

Respondent contends that its determination that the student is not a district resident was not arbitrary or capricious.

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 not met her burden of proving that the student is temporarily absent from the district.[1]  Petitioner does not indicate when she began residing with her parents or how long she believes this arrangement will last.  As such, she has not demonstrated a “concrete plan” to return to respondent’s district (Appeal of Hayes, 64 Ed Dept Rep, Decision No. 18,482; Appeal of Orena, 62 id., 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).  And other than renting a property therein, petitioner has not identified her family’s continuing ties to respondent’s community or her intent to return (Appeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022).  Therefore, petitioner has not met her burden of proof and the appeal must be dismissed.

THE APPEAL IS DISMISSED. 

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