Appeal of A.O., on behalf of his child, from action of the Board of Education of the Brewster Central School District regarding residency.

Decision No. 18,625

(August 11, 2025)

Thomas, Drohan Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

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

Prior to this appeal, the student attended school in respondent’s district based on his residence within its boundaries (the “first in-district address”).  In January 2025, a letter sent to the first in-district address was returned to respondent as undeliverable.  The letter further indicated that the forwarding period had expired.

Respondent thereafter initiated a residency investigation.  Following a period of surveillance, respondent sought to exclude the student in February 2025.  Upon receipt of this letter, petitioner and the student’s mother asserted that the student resided with petitioner at a new location within the district (the “second in-district address”).  The record reflects that this residence is owned by petitioner’s sister.

On March 3, 2025, respondent’s residency officer and district registrar met with petitioner to discuss his residency.  Petitioner asserted that he resided with the student at the second in-district address but did not submit any proof thereof.

By letter dated March 4, 2025, respondent’s residency officer informed petitioner and the student’s mother that the student would be excluded as a non-resident as of March 14, 2025.  This appeal ensued. 

Petitioner contends that he and the student have resided at the second in-district address since approximately May 2023.  He seeks a determination that the student is a district resident.

Respondent contends that petitioner has not met his burden of proving that he resides within its district.

Following commencement of this appeal, respondent surveilled the second in-district address for six days in March and April 2025.[1]  On three of these days, the investigator observed a woman and a baby depart the second in-district address in the morning and leave in a vehicle registered to someone other than petitioner.  On two afternoons, the investigator observed the student walk to the second in-district address around 3:00 p.m., at which time he entered the residence and remained therein until surveillance was discontinued.  And, on the sixth day of surveillance, the investigator observed petitioner and the student arrive at the second in-district address in the morning in petitioner’s vehicle.  The student entered the second in-district address, remained for about five minutes, and then departed the residence with petitioner.  Petitioner proceeded to drop the student off at school. 

In July 2025, respondent provided petitioner with an opportunity to present additional information concerning his residency.[2]  Petitioner did not provide any relevant evidence in response.

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 his burden of proving that the student resides within respondent’s district.  As evidence, petitioner submits a utility statement and vehicle registration bearing his name as well as an interim driver’s permit and wage statement bearing the student’s name; all of these documents bear the second in-district address.

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 the second in-district address on six occasions in March and April 2025 and only observed petitioner once.[3]  Petitioner did not submit a reply or otherwise seek to explain respondent’s surveillance evidence. Thus, petitioner has not met his burden of establishing that he or the student resides at the second in-district address.

THE APPEAL IS DISMISSED.

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