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

Decision No. 18,616

(August 4, 2025)

Silverman and Taylor, attorneys for petitioner, Mark Silverman, Esq., of counsel

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

ROSA., Commissioner.--Petitioner appeals the 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’s residency was the subject of a prior appeal to the Commissioner, Appeal of D.F.P. (64 Ed Dept Rep, Decision No. 18,431).  In a decision dated July 1, 2024, I upheld respondent’s determination that petitioner did not reside at a location within the district (the “in-district address”) but, rather, at a location in Roosevelt, New York (the “out-of-district address”).[1]

In fall 2024, petitioner re-enrolled the student, claiming that she resided at the in-district address.  Respondent thereafter investigated the student’s residency.  On six occasions in January and February 2025, respondent surveilled the in-district address for several hours beginning at 5:30 a.m.  While the student was not observed on any of these occasions, he was present in school.  Respondent also observed the student leave the out-of-district address on the morning of November 25, 2024.

By letter dated February 28, 2025, respondent’s assistant superintendent for educational & administrative services (“assistant superintendent”) notified petitioner of her determination that the student was not a district resident and, therefore, would be excluded as of March 14, 2025.  The assistant superintendent offered to meet with petitioner to allow her to submit additional documentation regarding the student’s residency.  Such a meeting occurred on March 10, 2024, at which petitioner continued to assert that she resided at the in-district address.

By letter dated March 11, 2025, respondent determined that the student was not a district resident, and, therefore, would be excluded effective March 14, 2025.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 26, 2025.

Petitioner asserts that the student resides at the in-district address and submits documents associating her with the in-district address.  Petitioner seeks a determination that the student is a district resident.

Respondent contends that petitioner has not met her burden of establishing residency within the district.  Respondent argues that its surveillance evidence shows that the student resides at the out-of-district address.  

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 her claim of residency, petitioner submits a copy of her utility and cell phone bills and the student’s New York State identification card, which list the in-district address.  Petitioner also submits a lease agreement and a landlord affidavit in support of her claim to have rented an apartment space at the in-district address.  While this documentary evidence is entitled to some probative value, it is unpersuasive when weighed against respondent’s contrary surveillance evidence (Appeal of Martinez and Granja, 62 Ed Dept Rep, Decision No. 18,170; Appeal of Collado, 60 id., Decision No. 17,918; Appeal of Mauro, 58 id., Decision No. 17,494).  As indicated above, the student was not observed at the in-district address on six days despite attending school on those days; he was also observed departing the out-of-district address.  Petitioner did not submit a reply or otherwise attempt to explain these observations.  As such, petitioner has failed to meet her burden of proof and the appeal must be dismissed.

This is the second school year in which petitioner has failed to demonstrate that she and the student reside at the same in-district address.  Absent a demonstrable change in circumstances, respondent is not required to entertain a subsequent claim of residency therein (Appeal of Rahimi, 61 Ed Dept Rep, Decision No. 18,044).

THE APPEAL IS DISMISSED.

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