Appeal of T.S., on behalf of her child, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 18,628

(August 11, 2025)

Keane & Beane, PC, attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

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

The student began attending one of respondent’s elementary schools in the 2024-2025 school year.  At that time, she indicated that she and the student resided at an address within the district (the “first in-district address”).  Based on information from school staff, respondent commenced a residency investigation that included surveillance of a location in Connecticut (the “out-of-district address”).  On five mornings in November 2024, an investigator observed petitioner depart the out-of-district address with the student and drive her to the school she attended.

By letter dated November 22, 2024, respondent’s family information center coordinator informed petitioner that the student may not reside within the district.  The letter invited petitioner to submit additional documentation in support of her residency (see 8 NYCRR 100.2 [y] [6]).  In response, petitioner emailed copies of a purported lease for a different in-district address (the “second in-district address”) and a utility bill.  The investigator proceeded to contact an employee of the leasing office for the second in-district address, who reported that petitioner had applied for an apartment therein but had been denied.[1]

By letter dated December 11, 2024, respondent determined that the student resided outside of the district and would be excluded as of December 20, 2024.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 7, 2025. 

Petitioner maintains that she resides at the second in-district address and intends to move to another in-district address (the “third in-district address”) once construction is complete.  For relief, petitioner seeks a determination that the student is a district resident. 

Respondent contends that its investigation, particularly its surveillance evidence, demonstrates that the students reside 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 two documents; the first is an “Affordable Rental Housing Program Eligibility Letter” from the City of White Plains Planning Department dated October 31, 2024 indicating that petitioner is eligible for an apartment located at the third in-district address.  The second document is a text message dated December 11, 2024 from the property manager of the third in-district address, who states that the management company “push[ed] back tour and occupancy dates” from December 15, 2024 to January 15, 2025.  The property manager also notes that move-in dates could “change again” as the third in-district address is an “active construction site.”

This documentary proof, at best, reveals an intent to reside at the third in-district address in the future.  As such, it is insufficient to overcome respondent’s surveillance evidence, which consistently depicted the student departing from the out-of-district address to respondent’s elementary school (see Appeal of M.Z., 64 Ed Dept Rep, Decision No. 18,559; Appeal of J.M., 62 id., Decision No. 18,192).  Petitioner did not submit a reply or otherwise seek to explain her presence at the out-of-district address.  Accordingly, petitioner has failed to meet her burden of proof, and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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