Appeal of Roxanne Hai, on behalf of her child, from action of the Board of Education of the City School District of the City of Kingston regarding residency.

Decision No. 18,662

(December 15, 2025)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Beth L. Harris, Esq., of counsel

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

Petitioner and the student live at two different addresses throughout the year, one located within respondent’s district (the “in-district address”) and the other within the City of New York (the “out-of-district address”).  For the past two years, the student has attended a public school served by the New York City Department of Education (“NYCDOE”) from September through June.  In connection therewith, NYCDOE developed individualized education programs (“IEPs”) for the student.  The student’s two most recent IEPs recommended 12-month extended school year (ESY) services.  Respondent allowed the student to attend one of its ESY programs during summer 2024. 

In April 2025, petitioner requested ESY services for the upcoming summer.  In response, respondent asked petitioner to complete an affidavit regarding the reasons for, and expected duration of, her claimed residence at the in-district address.  Instead, petitioner submitted an affidavit from her mother, the owner of the in-district address, in which she indicated that the student had resided at the in-district address when he “successfully enrolled in [respondent]’s summer school program” in 2024.  Petitioner’s mother further indicated that she “maintains the dwelling for residential use throughout the year” and that petitioner “has the right to occupy the property ….”

By letter dated June 30, 2025, respondent informed petitioner of its determination that the student was not a district resident and, therefore, not entitled to attend its schools.  This appeal ensued.

Petitioner acknowledges that the student attends a school operated by NYCDOE “during the regular school year.”  However, she contends that he should nevertheless be considered a resident of respondent’s district as she and the student have “dual residence” at the in- and out-of-district addresses.   

Respondent contends that petitioner cannot have two legal residences and that its determination is supported by the evidence in the record.  Respondent further contends that it is not estopped from disputing petitioner’s residency based on its admission of the student to its ESY program in 2024.

First, I must address a preliminary matter.  I decline to address petitioner’s claims of disability discrimination under the Americans with Disabilities Act, the Individuals with Disabilities Education Act, and Section 504 of the Rehabilitation Act.  An appeal to the Commissioner is not the proper forum in which to raise alleged violations of federal civil rights laws (Appeal of K.H., 63 Ed Dept Rep, Decision 18,335; Appeal of Zlotnik and Hartman, 53 id., Decision No. 16,589). 

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 (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 her burden of proof.  Contrary to petitioner’s argument, a student may only have one legal residence (Appeal of Manikarnika, 60 Ed Dept Rep, Decision No. 17,899; Appeal of Squillace, 59 id., Decision No. 17,835; Appeal of Keating, 59 id., Decision No. 17,744).  Here, petitioner admits that the student attends a public school served by the NYCDOE from September through June, an entitlement premised upon petitioner’s residence within the City of New York.  Additionally, NYCDOE developed the student’s two most recent IEPs, a duty that rests solely with a parent’s district of residence (Appeal of M.S., 63 Ed Dept Rep, Decision No. 18,320 at n. 3).  This evidence supports a finding that petitioner resides at the out-of-district address.

While petitioner submits evidence demonstrating that she has access to the in-district address, she has not proven that it constitutes her legal residence.  Specifically, petitioner submits an electric bill addressed to her at the in-district address and an affidavit executed by her mother.  In the affidavit, petitioner’s mother states that petitioner and the student have been “actual occupants … throughout the year continuously” since August 2021.[1]  Neither petitioner nor her mother, however, assert that petitioner spends a majority of her time at the in-district address.  In this respect, while petitioner alleges that she and the student reside at the in-district address “under an ongoing yearly lease arrangement,” she did not provide a copy thereof.  Thus, petitioner has failed to prove that she and the student spend sufficient time at the in-district address such that it could be considered their residence (Appeal of Kilpatrick, 59 Ed Dept Rep, Decision No. 17,750; Appeal of Del Franco, 59 id., Decision No. 17,738).

Moreover, respondent’s provision of ESY services in 2024 does not create a legal entitlement thereto.  Equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274 [1988]; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88 [1981]; see Appeals of C.W., 60 Ed Dept Rep, Decision No. 17,944; Appeal of Wertman, 58 id., Decision No. 17,614).

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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