Appeal of L.O., on behalf of her child, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 18,624

(August 11, 2025)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

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

In August 2024, petitioner registered the student in respondent’s high school utilizing an in-district address.  On four occasions in September 2024, respondent attempted to visit the in-district address but there was no answer.  Thereafter, an investigator surveilled an address in Hempstead, New York (the “out-of-district address”) over the course of two weeks in September and October 2024.  On six of these days, the student and his father were observed departing the residence.   

By letter dated October 16, 2024, the administrative assistant to the superintendent advised petitioner of the district’s determination that the student was not a resident.  The letter also advised petitioner of her right to appeal the decision to an administrative review officer.  Petitioner appealed, and a hearing convened on November 8, 2024.[1]

In a decision dated January 28, 2025, an administrative review officer found that the student resided outside the district.  The review officer based her determination on respondent’s surveillance evidence as well as petitioner’s admission that she stays at the out of district residence on four or more days a week.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 5, 2025.   

Petitioner asserts that she and the student reside at the in-district address.  She seeks a determination that the student is a district resident. 

Respondent contends that the appeal must be dismissed for improper service.  On the merits, respondent argues that the administrative review officer correctly determined that the student does not reside at the in-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). 

Petitioner claims that the student lives with her at the in-district address during the week and with his father at the out-of-district address on weekends.  As evidence, she submits a photocopy of her driver’s license, a copy of a lease agreement dated September 1, 2023, and a utility bill dated February 16, 2025; each of these documents bears the in-district address.  These assertions are insufficient to overcome respondent’s surveillance evidence, which consistently depicted the student departing from the out-of-district address on weekdays (see Appeal of M.Z., 64 Ed Dept Rep, Decision No. 18,559; Appeal of J.M., 62 id., Decision No. 18,192).  These assertions are also inconsistent with petitioner’s prior testimony, in which she stated that the student only stayed at the in-district address two or three days a week.   

Additionally, I am unpersuaded by petitioner’s newly raised contention that the student was temporarily living with his father during the period of respondent’s surveillance due to petitioner’s illness.[2]  The only evidence petitioner submits in support thereof are photographs depicting an at-home COVID-19 test displaying positive results, which do not explain or justify the student’s frequent presence at the out-of-district address (see Appeal of Fisher, 57 Ed Dept Rep, Decision No. 17,349).  Accordingly, petitioner has failed to meet her burden of proof, and the appeal must be dismissed. 

In light of this determination, I need not address petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE