New York law ensures that students between five and twenty-one years old can attend public school, tuition free, if they have not received a high school diploma and reside within the school district (Education Law § 3202). School districts are not obligated to expend resources educating students outside of their districts, however. A school district with reason to suspect a particular student lives outside its boundary may conduct a residency investigation. If the residency investigation indicates the student does live out of district, the school district will issue notice to the parents. A determination of non-residency may result in the student’s exclusion from school as well as a tuition bill.

What Determines Residency?

Residency requires actual inhabitation in a school district, including physical presence and intent to remain. Owning property and paying property taxes within a school district is not sufficient. The student must physically live within the district.

Students are presumed to share residency with their parents, but this is not always the case. Residency generally follows the person(s) responsible for care and custody of the student. For families where custody is essentially equal between parents, the parents may choose which parent’s address determines residence.

What the School District Must Do

School districts may conduct a residency investigation when they suspect a student is a non-resident. Before excluding the student from school, the district must first:

Notify the parent(s)

The district must provide notice to the parent(s) of the determination of non-residency. This notice must also inform parents of their right to seek review of the decision and the procedures for doing so.

Opportunity to be heard

The district must afford parents an opportunity to provide explanation for any absence or change in location, and submit evidence or information related to the student’s residency.

Provide a written notice of residency determination

The district must issue parents a written notice of their residency determination within two business days of the determination. This notice must include the basis for the decision. For example: Based on surveillance of the in-district address conducted on October 10^th, 12^th, 14^th, and 16^th from 6 AM to 10 AM.

The written notice of a determination of non-residency must include:

• Basis for determination
• Date exclusion from school district goes into effect
• Statement informing parents of their right to appeal the residency determination to the Commissioner within 30 days.

The Potential Costs of a Determination of Non-Residency

If the parents fail to provide adequate proof that their student does reside within the district, the school may exclude the student from the district. That alone can be massively disruptive both for the student and the parents who must now find a new school. But there are additional costs to be aware of.

Tuition Reimbursement

Parents may be required to reimburse the school for the costs of educating an out-of-district student. Tuition is charged per student, not household. The rate for nonresident students varies between districts, grade, type of educational services, and duration of attendance while residing out of district. In New York City, one year of kindergarten in 2026 is $5,425 for general education, and $48,392 for special education students. Grade 7 and onward, the price rises to $10,040 for general education and $53,007 for special education. Some upstate school districts, like Saratoga Springs City School District, charge even more: $15,710 for one year of K-6 general education.

Finding a New School

Finding a new school and enrolling the student is an intensive process. In contested residency cases, there are additional complications. If the student does, in fact, reside in the current school district, it may not be possible to find a new school free of tuition costs. Any other school would be out of district. Depending on the living situation, this may present additional transportation costs.

Special Education Progress

For students receiving special education services, the disruption of changing schools is compounded. IEPs are a significant investment in time and resources. Once an IEP team has developed a routine with workable goals such that the student can make appropriate progress, change must be weighed carefully. Transferring schools is a heavy decision that requires careful preparation; a residency investigation is not conducive to this preparation. When transferring schools in state, the law requires the new school to provide comparable special education services until they either adopt the previous IEP or develop a new IEP. The reality is that not all schools have the same resources. Such a massive disruption may result in significant setbacks.

If you have received notice of a residency investigation determination, you must be given an opportunity to present counterevidence and make your case. However, your time to do so is very limited. It is critical to contact an education attorney as soon as possible. The law provides procedural protections to students and parents undergoing residency investigations. An education attorney can hold school districts accountable and help ensure the student’s education is not disrupted pending resolution. Legal counsel can review residency notices, assess residency investigation evidence, draft responses, and provide representation in hearings and appeals. Appealing residency determinations to the Commissioner of Education alone is not recommended.

Tully Rinckey attorneys understand that issues of contested residency can be challenging, and they will handle your matter with the attention and tact it deserves. If you have additional questions about your rights during a residency investigation, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Nicholas A. Marricco is a Senior Associate in Tully Rinckey PLLC’s Manhattan Office, where he focuses his practice on Education Law, Special Education Law, Higher Education Law, Federal Employment Law, and New York State Employment Law. Nicholas has also represented countless families of children with special needs in CSE meetings, CPSE meetings, manifestation determinations, and Impartial Hearings. He is among the few New York State Special Education Attorneys who had an IEP and received special education services as a child. Nicholas’ parents fought for his education as a child and now he zealously advocates for all his clients like his parents did for him.