Appeal of DIANA C. TAPIA, on behalf of her children, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.

Appeal of CECILIA and CHARLES TAPIA, on behalf of their child, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.

Decision No. 18,582

(July 9, 2025)

Ingerman Smith, L.L.P., attorneys for respondent, Camille E. Curry, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioners appeal determinations of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that their children (the “students”) are not district residents.  Because the appeals present common issues of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed.

Although the exact relationship is unclear, the record reflects that petitioners’ families are related.  Prior to the events leading to these appeals, their children attended respondent’s schools as district residents.  Each claimed to reside at a residence therein (the “first in-district address”).  A search of public records revealed that several members of petitioners’ family were associated with an out-of-district address in Connecticut (the “out-of-district address”) and an apartment located within the district (the “second in-district address”).  The district proceeded to conduct surveillance at the out-of-district and second in-district addresses.  On each of five days of surveillance, the students and their family were observed departing from, or returning to, the out-of-district address.

In letters dated March 3 and 12, 2025, respondent notified petitioners of its determination that the students were not district residents and, therefore, would be excluded from its schools as of March 19, 2025.[1]  These appeals ensued.[2]

Petitioners assert that they reside at the second in-district address.  In both appeals, petitioners submit a third-party residency statement signed by petitioner Cecilia Tapia, affirming that she, petitioner Diana Tapia, and the students have lived therein since December 1, 2024.  Petitioners seek a determination that the students are entitled to attend respondent’s schools as district residents.

Respondent argues that its surveillance evidence, which included multiple morning and evening observations, shows that the students reside at the out-of-district address.  Respondent further asserts that petitioners lack credibility as their residency claims have changed multiple times throughout the investigation.

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).

Although petitioners claim that the students reside at the second in-district address, there is no evidence in the record to rebut respondent’s surveillance evidence, which consistently depicted the students leaving from, or returning to, the out-of-district address (Appeal of Jaikissoon, 63 Ed Dept Rep, Decision No. 18,333; Appeal of Mauro, 58 id., Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).  It appears that petitioners and their families have access to the second in-district address, as they were twice observed at that location.  However, on both of these occasions, the parents/families soon returned to the out-of-district address for the evening.  Petitioners did not submit a reply or otherwise refute these observations (8 NYCRR 100.2 [y] [6]); see Appeal of Greene, 63 Ed Dept Rep, Decision No. 18,307).[3]  As such, they have failed to meet their burden of proof, and the appeals must be dismissed.

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

THE APPEALS ARE DISMISSED.

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