Appeal of B.J., on behalf of her children, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Appeal of S.B., on behalf of his child, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 18,586

(July 9, 2025)

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

ROSA., Commissioner.--In two separate appeals, petitioners challenge determinations of the Board of Education of the Freeport Union Free School District that their children (the “students”) are not district residents.  Because the appeals arise out of similar facts and circumstances and present similar issues of law, they are consolidated for decision.  The appeals must be dismissed.

Prior to the events giving rise to this appeal, the students attended respondent’s schools as district residents.  In October 2022, petitioners submitted a change of address form, asserting that they had moved to a new location within the district (the “in-district address”).  Based on an anonymous tip, respondent investigated the students’ residency in 2022.  Respondent concluded that the students resided at a location in Baldwin, New York (the “out-of-district address”) but did not exclude them at that time. 

In 2024, mail sent to the in-district address was returned to respondent with a notation indicating that the students resided at the out-of-district address.  Respondent proceeded to conduct surveillance over six days in October and November of 2024.  Based on the results thereof, respondent concluded that the students resided at the out-of-district address.

By separate letters sent in October and November 2024, respondent advised petitioners of its determination that the students were not district residents.  These appeals ensued.  Petitioners’ requests for interim relief were denied on December 4, 2024.

Petitioners acknowledge that they reside with family at other addresses, including the out-of-district address, but assert that the students primarily reside at the in-district address.  They seek a determination that the students are district residents.

Respondent contends that its residency determinations are supported by the evidence in the record, particularly its surveillance evidence.

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).

In support of their claim of residency, petitioners submit a phone bill, bank statements, and identification cards for three of the children that associate them with the in-district address.  Petitioners also provide a signed copy of a lease agreement for the in-district address. 

Petitioners’ documentary evidence is unpersuasive when weighed against respondent’s surveillance evidence (see Appeal of Silva, 63 Ed Dept Rep, Decision No. 18,411; Appeal of Mauro, 58 id., Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).  Despite petitioners’ contention that they primarily reside at the in-district address, the students were not observed there during either period of surveillance.  By contrast, the students were observed at the out-of-district address on multiple occasions.  As such, respondent’s determination cannot be considered arbitrary or capricious (Appeal of Spalding, 64 Ed Dept Rep, Decision No. 18,443).

THE APPEALS ARE DISMISSED.

END OF FILE