Appeal of JUANITA McCALLUM, on behalf of her child, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 18,596

(July 21, 2025)

Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel

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

Prior to this appeal, the student attended school in respondent’s district based on his residence within its boundaries (the “previous in-district address”).  Respondent investigated the student’s residency after he informed others that he did not reside in Ossining.  Respondent conducted six days of surveillance in spring 2024 and nine days of surveillance in winter 2025.  Petitioner, the student’s father, and the student were never observed at the in-district address.  The student and his father were, however, observed on each of the nine days of surveillance in winter 2025 at an address in The Bronx, New York (the “out-of-district address”).[1]

By letter dated February 28, 2025, respondent informed petitioner that it had reason to believe the students did not reside within the district.  In response, petitioner submitted documentary evidence bearing her name and the in-district address. 

On March 7, 2025, respondent informed petitioner of its determination that the student did not reside within the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 26, 2025.

Petitioner asserts that she and the student reside at the in-district address.  She acknowledges that the student “visit[s]” his father “at his residence a few days a week,” including when her “working hours prevent [her] from taking [the student] to school.”  She seeks a determination that the student is a district resident.

Respondent argues that its determination is 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 (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 the students reside within respondent’s district.  As evidence, petitioner submits documentary evidence bearing her name and the in-district address as well as a written statement from the owner of the in-district asserting that petitioner and the student reside therein.

This documentary evidence is unpersuasive when weighed against respondent’s surveillance evidence (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).  As indicated above, an investigator observed petitioner or the student departing from the out-of-district address on 15 school mornings.  The investigator never observed petitioner or the student depart from the in-district addresses.  By contrast, respondent observed petitioner, the student, or his father depart from the out-of-district address on multiple occasions, including the nine days of surveillance in winter 2025.  This contradicts petitioner’s suggestion that the student’s presence at the out-of-district address is infrequent.  As such, respondent’s determination cannot be considered arbitrary or capricious.

THE APPEAL IS DISMISSED.

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