Appeal of F.D.D., on behalf of her child, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 18,602

(July 22, 2025)

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

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

Petitioner first enrolled the student in respondent’s district during the 2021-2022 school year.  In so doing, she indicated that she resided at a location within the district (the “in-district address”).  After the owner of the in-district address reported that petitioner did not reside therein, respondent conducted five days of surveillance in December 2024 and January 2025.  The student was not seen at the in-district address on any of these days but was nevertheless present in school.  Based on this information, respondent informed petitioner, by letter dated February 4, 2025, that the student would be excluded from school on February 14, 2025. 

Petitioner contacted respondent and indicated that she and the student had moved to another address within the district (the “second in-district address”).  Based on this representation, respondent allowed the student to remain enrolled in its schools.

Respondent surveilled the second in-district address on February 12 and 13, 2025.  Neither petitioner nor the student were present at this address, which appeared vacant.

On February 26, 2025, respondent sent petitioner a second exclusion letter.  In a meeting with respondent’s Assistant Superintendent for Educational & Administrative Services on March 10, 2025, petitioner continued to claim that she resided at the second in-district address.  Following this meeting, respondent excluded the student from its schools on March 14, 2025.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 21, 2025.

Petitioner contends that the student resides at the second in-district address. Petitioner requests a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent contends, among other arguments, that its determination cannot be considered arbitrary or capricious as the second in-district address is vacant.

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).

While petitioner continues to assert that she resides at the second in-district address, she submits no proof in support thereof.  By contrast, respondent’s surveillance established that petitioner and the student were never seen at the second in-district address, which was vacant and uninhabited.  Petitioner did not submit a reply or otherwise respond to this evidence.  Accordingly, petitioner has failed to meet her burden of proof and the appeal must be dismissed (Appeal of Silva, 63 Ed Dept Rep, Decision No. 18,411; Appeal of Acree, 56 id., Decision No. 16,934).

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

THE APPEAL IS DISMISSED. 

END OF FILE