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Decision No. 13,222

Appeal of DAVID and PATRICIA RADICAN, on behalf of their children, DAVID, AMY and KEVIN, from action of the Board of Education of the Center Moriches Union Free School District regarding admission to school.

Decision No. 13,222

(July 20, 1994)

Dranitzke, Lechtrecker & Trabold, Esqs., attorneys for respondent, Harold G. Trabold, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's determination that their children are not residents of the Center Moriches Union Free School District. The appeal must be dismissed.

Petitioners resided in the Center Moriches district for seventeen years, but on January 6, 1994, sold their home because of financial difficulties. Petitioners currently reside at an address in a neighboring school district. Upon learning that petitioners no longer lived in the Center Moriches district, respondent's superintendent notified petitioners that their children could not attend respondent's schools after March 25, 1994. This appeal ensued.

Petitioners contend that their children should be allowed to attend respondent's schools because they intend to return to the Center Moriches district and their absence is merely temporary. Respondent denies those assertions. Education Law '3202(1) provides: "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 or city in which such person resides without the payment of tuition." The purpose of that statute is to limit the obligation of school districts to provide tuition-free education, with exceptions not relevant here, to students whose parents or legal guardians reside within the district (Matter of Bd. of Ed. v. Allen, et al., 29 AD2d 24, 28). As was stated in Matter of Conine, 9 Ed Dept Rep 32, 33:

The general rule established by Education Law '3202 is clearly indicated in the heading of that section: "Public schools free to resident pupils; tuition from nonresident pupils." The Legislature recognized that under certain circumstances exceptions should be made to this rule. But, unless appellant proves that the children are residents of respondent school district or come within one of the exceptions to the general rule, they are not entitled to free tuition in this district.

Residence for purposes of Education Law '3202 may be established in part based upon bodily presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Ed., 64 Misc. 2d 60). In addition, it is necessary to consider an individual's intent to determine his or her actual residence (Matter of Manning, 24 Ed Dept Rep 33). Although petitioners say they intend to return to the Center Moriches district, this is not demonstrated on the record before me. No documentary evidence has been presented to show that petitioners have contracted to either build, purchase or lease a residence in respondent's district. Even if that intention were shown, however, petitioners and their children are not physically residing in the Center Moriches district. As noted above, in order to show that an individual has selected a particular location as his or her residence, that individual must both actually reside in that location and intend that such location be his or her permanent residence. Petitioner has failed to to show both intent and actual physical residence.

I find that petitioners have failed to sustain their burden of proof based upon the facts as they appear in the record. Consequently, respondent's determination that petitioners' children may not attend its schools without the payment of tuition was not arbitrary, capricious or unreasonable and should not be set aside.

THE APPEAL IS DISMISSED.

END OF FILE