Residency Investigations

Under New York Education Law §3202 (1), students who reside in a school district are entitled to attend that school district. Non-resident students may attend a school district if authorized by Board of Education policy, upon such terms and conditions set by the Board of Education, typically including payment of tuition. The individual school districts are solely responsible for enforcing the residency requirement of their students, mostly because the school districts have a financial incentive to ensure compliance. Out-of-district students put a strain on resources for the school districts without paying their fair share of property taxes to the school district of attendance.

Each school district has the authority to investigate and make determinations regarding the residence of its students. However, determining a student’s “residence” for the purpose of school attendance is not always simple, especially where students may live in two or more households on a regular basis. This difficulty requires the school districts to investigate the residency with their own resources. “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]. Although there is a rebuttable presumption that a student “resides” with the parent, the parent’s true “residence” is not always clear. The fact that a child’s parent or guardian rents or owns property in the district or pays taxes in the district does not, in and of itself, establish residency for purposes of Education Law § 3202.

The Commissioner’s Regulations set forth a procedure for informing parents that their child is not a resident and, therefore, will be excluded from attendance. Such determinations are then subject to review by the Commissioner of Education if challenged by a parent or guardian. The Commissioner will not set aside a residency determination unless it is arbitrary and capricious. Therefore, it is key that the investigation to review a student’s residence be adequate to support the District’s determination that the student is not a resident.

A reasonable investigation would include repeated surveillance of the student’s purported residence to determine whether the student and parent or legal guardian are truly residing in the school district. The Commissioner has accepted surveillance observations in support of a school district’s determination that a student is not a resident of the school district where the investigator observes the student’s residence on four different days at different times of the day. Appeal of Silva v. Massapequa Union Free School District, Decision No, 18,411. Observing the student’s reported in-district address in the evenings can be useful for justifying a determination, especially when the student is not physically at the purported residence in the mornings before school or in the evenings. Appeal of J.A. v. Pelham Union Free School District, Decision No. 18,420. Interviews with the landlord or neighbors of the student’s in-district reported address guardians can also be important evidence about residency. Id. Even where the parents submit, “letters, mortgage documents, tax returns, utility bills, paystubs, vehicle and voter registration, and written statements attesting to their residency at the in-district address,” the Commissioner is likely to find that the parent has not met the burden of proof to overturn the school district’s decision if the school district did a “reasonable surveillance investigation.” Appeal of J.A. v. Pelham Union Free School District, Decision No. 18,420.

Like with most legal determinations, what is a reasonable surveillance investigation depends on the individual facts; although guidance can be gleaned from prior Commissioner’s decisions, there is no bright line rule. Should your school district question the residency of any of its students, please be sure to review the specific facts with us, as well as the process for making the residency determination.