Appeal of S.W., on behalf of his child, from action of the Board of Education of the North Rockland Central School District regarding residency.

Decision No. 18,579

(July 7, 2025)

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

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

In February 2024, petitioner attempted to register the student for kindergarten for the upcoming 2024-25 school year.  Respondent denied this request as petitioner’s address was located outside of the district’s geographical boundaries (the “out-of-district address”).  Petitioner made a similar registration attempt in July 2024 and was again denied.  Later that month, however, petitioner submitted a new registration application identifying his residence as a location within the district (the “in-district address”).  Respondent enrolled the student at that time.

In September and October 2024, respondent investigated petitioner’s residency.  This included the following observations and interactions: 

• September 26: respondent’s residency liaison observed petitioner and the student departing the student’s school at the end of the school day and returning to the out-of-district address.  The residency liaison visited the in-district address later that evening.  The owner’s son answered the door and did not recognize petitioner by name.  When the liaison asked about the student, the owner’s son indicated that she was “not present at the time.”
• September 27: petitioner called the residency liaison to report that he had been “spending time” at the out-of-district address.  Petitioner did not provide any further explanation, such as his assertion raised on appeal that construction was occurring at the in-district address.
• October 17: a district employee observed the in-district address in the morning of a school day.  She did not see petitioner, the student, or petitioner’s vehicle—or any evidence of ongoing construction.
• October 21: the residency liaison observed the in-district address in the morning of a school day and did not observe petitioner, the student, or petitioner’s vehicle.

On October 21, 2024, respondent informed petitioner that the student would be excluded from the district’s schools as of November 1, 2024.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on November 7, 2024.

Petitioner contends that he did not receive timely notice of respondent’s residency determination.  On the merits, petitioner alleges that the in-district address “is being renovated” and that, as a result, he and the student “occasionally and temporarily” reside at the out-of-district address.  Petitioner requests a determination that the student is a district resident entitled to attend its schools without payment of tuition.

Respondent contends that petitioner resides at the out-of-district address and that its determination was based upon multiple sources of information, including its surveillance evidence.

First, I must address a procedural matter.  Respondent’s October 21, 2024 letter did not provide petitioner with an “opportunity to submit information concerning the child’s right to attend school in the district” (8 NYCRR 100.2 [y] [6]).  This error notwithstanding, petitioner has had a full and fair opportunity in this appeal to present evidence of residency and respond to the district’s claims.  As such, I decline to sustain and remand the appeal on procedural grounds (Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; see also Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,145; Appeal of Smythe, 51 id., Decision No. 16,303; Appeal of Butler and Dunham, 50 id., Decision No. 16,103).  I admonish respondent to comply with 8 NYCRR 100.2 (y) (6) in the future (Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687).

Turning to 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 he is a district resident.  Respondent’s surveillance evidence consistently depicted petitioner and the student at the out-of-district address.  Petitioner acknowledges as much but states that he and the student “occasionally and temporarily” reside at the out-of-district address while “the kitchen is being remodeled.”  As proof, he submits signed statements from the owner of the in-district address and the owner’s son, who assert “that there has been recent ongoing construction” at the in-district address resulting in “limited … use of the kitchen.” 

In response, respondent argues that petitioner resides at the out-of-district address.  Respondent relies upon, among other evidence, its surveillance (including the fact that no one observed any evidence of construction in connection therewith), petitioner’s failure to indicate that construction was ongoing when he spoke with the residency liaison on September 27, and the fact that the owner’s son did not recognize petitioner by name.[2]

I find the evidence submitted by respondent to be more persuasive.  Petitioner did not submit detailed or compelling proof, such as photographs, to support his claim that the in-district address is uninhabitable due to a kitchen renovation.  While petitioner acknowledges that he and the student “occasionally” reside at the out-of-district address, it is “possible, but not probable” that those days coincided with respondent’s surveillance (Appeal of J.B., 63 Ed Dept Rep, Decision No. 18,323).  Respondent’s evidence, taken together, strongly suggests residency outside of the district.  Accordingly, the appeal must be dismissed.[3]

THE APPEAL IS DISMISSED. 

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