Appeal of SAJADA TOWNSEND, on behalf of her children, from action of the Board of Education of the Niskayuna Central School District regarding residency.

Decision No. 18,598

(July 21, 2025)

Guercio & Guercio, LLP, attorneys for respondent, Erin M. O’Grady-Parent, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Niskayuna Central School District (“respondent”) that her two children (the “students”) are not district residents.  The appeal must be dismissed.

Petitioner registered her younger child in respondent’s district in September 2024.  At that time, she indicated that they resided at an address owned by her father (the “in-district address”). 

Based on statements made by petitioner, respondent investigated the student’s residency in February and March 2025.  Respondent learned that the student’s father owned three vehicles registered to an address in a neighboring district (the “out-of-district address”).  Respondent proceeded to conduct surveillance of the in- and out-of-district addresses on ten school day mornings.  One or more of the students were observed leaving from the out-of-district address on four of these occasions.  Neither petitioner nor the students were observed at the in-district address.

By letter dated March 7, 2025, respondent informed petitioner that it had reason to believe the students did not reside within the district.  In response, petitioner submitted documentary evidence as well as a lease and affidavit concerning the in-district address.

On March 26, 2025, respondent informed petitioner of its determination that the students did not reside within the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 22, 2025.

Petitioner asserts that she and the students reside at the in-district address.  She indicates that the students spend time with their father at the out-of-district address “3 days a week” until she “gets out of work” at 9:00 p.m.  She seeks a determination that the students are district residents.

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 her burden of proving that the students reside within respondent’s district.  As evidence, petitioner submits a copy of her driver’s license bearing the in-district address and an affidavit of her grandfather asserting that the students have resided therein since September 2024.

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 and one or more of the students departing from the out-of-district address on four out of ten school mornings.  The investigator did not observe petitioner or the students at the in-district address.[1]  While petitioner asserts that the students only visit the out-of-district address three afternoons per week, the surveillance suggests a much greater degree of physical presence.  As such, respondent’s determination cannot be considered arbitrary or capricious.

THE APPEAL IS DISMISSED.

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