Student Residency: Who Qualifies as a District Resident?

In New York, a child’s right to attend public schools without paying tuition depends on the child’s residency. Under Education Law § 3202(1), a person over the age of five and under twenty-one who has not earned 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.” School board policies may authorize admitting non-resident students, and may impose conditions for the non-resident student’s enrollment, including the payment of tuition. The purpose of these restrictions is to limit a school district’s obligation to provide tuition-free education to only those students whose parents or legal guardians reside within the district.

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). However, identifying the school district in which a child resides is not always easy, even when the child is living with a parent and not a third party. The fact that a parent owns or rents property in a district does not, by itself, establish a child’s residency under Education Law § 3202. “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]). A question may arise where a child regularly lives in more than one household, for the child can have only one legal residence. In cases where parents have joint custody and the child’s time is essentially divided between the parents’ respective households, the parents may designate the child’s residence (Appeal of J.J. and C.S., 65 Ed Dept Rep, Decision No. 18617). When a child is living with a relative or other person, not the child’s parent, in the school district, and the parent lives in a different school district, the inquiry is whether the general presumption that the child resides with the parent has been rebutted by the particular facts presented.

School districts have the authority to verify that the children attending its schools tuition-free are, in fact, residents of the district. School districts may conduct a residency investigation to ensure that the benefits of its educational resources are not extended to non-resident children. A thorough and properly conducted investigation is key to any determination that a child is not a school district resident.

When reviewing school districts’ determinations concerning student residency, the Commissioner of Education reviews whether the determination was arbitrary and capricious. Surveillance is a common investigation method used by school districts to determine whether a child resides within its boundaries. Although each situation needs to be reviewed based on the individual facts presented, surveillance of the child’s purported residence, if done repeatedly, on different days of the week and different times of the day, may outweigh evidence a parent may present to establish residency within the school district. In a recent decision, a parent submitted utility bills, car insurance and registration renewals, a driver’s license, and letters each bearing his name and the in-district address. The Commissioner, however, found that evidence of residency to be unpersuasive when weighed against the school district’s repeated surveillance of both the purported in-district address and the out-of-district address. (Appeal of M.S., 65 Ed Dept Rep, Decision No. 18,627).

When performing such surveillance, the individual conducting the surveillance should be informed in detail about the identity and character of the student and parents who will be observed, including how they look. The individual should surveil both the purported in-district residence and the suspected out-of-district residence a sufficient number of times at varying days of the week and times of the day, including when the parent and/or student are likely to be there before and after the school day. Also, the individual who conducts surveillance should provide an affidavit confirming the details and firsthand knowledge of the surveillance. Where a president of an investigation company provided an affidavit of the surveillance, the Commissioner found that the hearsay assertions of the president diminished the value of the surveillance evidence (Appeal of M.M., 65 Ed Dept Rep, Decision No. 18,631).

Whether an investigation for a residency determination was conducted properly is determined by the specific facts and circumstances of each case. There is no magic number or single prescription for surveillance. If your school district has questions or concerns about a student’s residency or surveillance investigations, before making a determination, please contact our office to review the facts and determine the proper procedures.