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

Decision No. 18,622

(August 11, 2025)

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 first registered the student in respondent’s district in October 2023.  At that time, she indicated that she resided at a location therein (the “in-district address”).  After the student reportedly indicated that she resided in Brooklyn, New York, respondent conducted a residency investigation.  Over multiple days of surveillance, the student was not observed at the in-district address.  By letter dated April 4, 2024, respondent excluded the student from the district as a non-resident.

In fall 2024, petitioner re-enrolled the student, claiming that she resided at the in-district address.  Respondent proceeded to conduct additional surveillance of the in-district address.  On five days in October 2024, an investigator surveilled the in-district address from approximately 6:15 to 9:00 a.m.  Although no activity was observed, the student was nevertheless present at school on four of these days, which begins at 8:35 a.m.

By letter dated October 18, 2024, 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 October 25, 2024.  The assistant superintendent offered to meet with petitioner on October 24, 2024 to allow her to submit additional documentation regarding the student’s residency.  The assistant superintendent attempted to contact petitioner but was unable to reach her; the student was excluded thereafter.[1]  This appeal ensued.  Petitioner’s request for interim relief was granted on December 4, 2024.

Petitioner asserts that she and the student reside at the in-district address.  She seeks a determination that the student is a district resident and is entitled to attend school without payment of tuition.

Respondent argues that its determination is supported by the evidence in the record, particularly its surveillance evidence.

First, I must address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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). 

Petitioner submits a single document as evidence with her petition:  a letter from the owners of the in-district address, her parents, indicating that petitioner and the student have continuously resided with them since 2023.  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 did not observe petitioner or the students at the in-district address on five separate school mornings.[2]  As such, respondent’s determination cannot be considered arbitrary or capricious.

THE APPEAL IS DISMISSED.

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