Appeal of LORRAINE A. MARSTON, on behalf of MICHAEL MARSTON, and ELAINE J. ROGERSON, on behalf of JENNIFER and KATELYN ROGERSON, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 13,247

(August 25, 1994)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Christopher Venator, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's determination that their children, Michael Marston, Jennifer Rogerson and Katelyn Rogerson, are not residents of the East Islip Union Free School District. The appeal must be dismissed.

Petitioners and their children reside at 323 Babylon Street, Islip Terrace, New York. Petitioner Lorraine Marston purchased the property in 1982. Petitioner Elaine Rogerson moved in with her in 1985. Over the years, petitioners have paid their school taxes to the Central Islip Union Free School District ("Central Islip School District"). Nevertheless, their children and several foster children under their care have all attended respondent's schools.

In August 1993, a case worker for the Department of Social Services attempted to register a foster child, who was living with petitioners, in respondent's schools. At that time, respondent's residency verification officer determined that according to the official tax map for the Town of Islip, petitioners' residence was actually located within the Central Islip School District. On September 3, 1993, a district employee called petitioners and informed them that their children would not be able to attend respondent's schools tuition-free. Petitioners went immediately to the district office with a copy of their property tax bill which listed the Central Islip School District. While at the office, petitioners examined an informal map which appeared to show that the boundary line between the Central Islip and East Islip School Districts intersected their property. However, they were told that this map was not determinative.

Petitioners then appealed to the superintendent by letter dated September 3, 1993. Pending their appeal, petitioners' children were allowed to continue to attend respondent's schools. However, the foster child who had not previously attended respondent's schools was enrolled in the Central Islip School District. By letter dated October 4, 1993, respondent's residency verification officer informed petitioners that their appeal to the superintendent was denied. On October 12, 1993, petitioners appeared before respondent board of education. By letter dated October 18, 1993, respondent's residency verification officer notified petitioners of respondent's final determination that their children were not residents of respondent's district and informed petitioners of their right to appeal to the Commissioner of Education.

Petitioners commenced this appeal on October 21, 1993 and requested a stay pursuant to 8 NYCRR 276.1. On November 1, 1993, the Acting Commissioner of Education issued an order requiring respondent to admit petitioners' children to its schools tuition-free, pending a final decision on the merits.

Petitioners contend that the map in respondent's district office shows that the boundary line intersects their property and, therefore, their children are entitled to attend respondent's schools. In addition, petitioner Lorraine Marston alleges that she purchased the house on the representation that it was located within respondent's district. Petitioners also maintain that their children would be adversely affected by a transfer to the Central Islip School District.

Respondent contends that it uses the official tax map for the Town of Islip to make final residency determinations and, according to that tax map, petitioners are residents of the Central Islip School District. Respondent also maintains that petitioners have consistently paid school taxes to the Central Islip School District. Respondent admits that a mistake was made in allowing petitioners' children to attend its schools in the first instance but argues that since petitioners are clearly not residents, it is not obligated to continue to provide petitioners' children with a tuition-free education.

Education Law '3202(1) provides, in pertinent part:

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 statute is to limit the obligation of school districts to provide tuition-free education to only those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

The record before me supports respondent's determination that petitioners do not reside in respondent's district, and, therefore, their children are not entitled to attend respondent's schools tuition-free. Respondent relied on the official tax map for the Town of Islip in making its final residency determination. This map clearly shows that petitioners' residence is located entirely within the Central Islip School District. Petitioners, however, maintain that the map located in respondent's district office shows that the boundary line intersects their property. However, this map is crudely drawn and does not definitively show that the boundary line for the districts in question intersects petitioners' property. In any case, respondent only uses this map for initial residency determinations and relies on the official tax map to finally determine the district's boundaries. In addition, another map located in the office of the superintendent of the Central Islip School District also shows petitioners' residence to be within its district. In sum, the weight of the evidence supports respondent's determination that the property is located entirely within the Central Islip School District.

I also note that petitioners have been paying school taxes over the years to the Central Islip School District. Petitioners' 1986-1987 property tax bill lists the taxing jurisdiction as the Central Islip School District. Petitioners, however, argue that the school district code number on this bill corresponds to the East Islip School District. I observe that the school district code on petitioners' property tax bill does appear to correspond to the East Islip School District. However, I do not find this to be persuasive, especially in view of the fact that the face of the bill clearly states that the taxing jurisdiction is the Central Islip School District. In addition, petitioners' 1992-1993 property tax bill also lists the taxing jurisdiction as the Central Islip School District.

Petitioners also argue that denial of the requested relief would adversely affect their children. Specifically, petitioners allege that their children are progressing well in respondent's schools because they are familiar with their surroundings. However, petitioners have failed to clearly demonstrate how the denial of the requested relief would adversely affect their children's educational interests. The mere fact that petitioners' children may have some difficulty adjusting to a new school, while regrettable, is simply not a sufficient basis for overturning respondent's decision.

It appears that respondent made a mistake in initially allowing petitioners' children to attend its schools on a tuition-free basis. Although this error has led to an unfortunate situation, petitioners' children have not acquired any legal right to continue attending respondent's schools on a tuition-free basis (Appeal of Busch, et al., 24 Ed Dept Rep 379). Moreover, even if petitioner Lorraine Marston was misinformed by a district employee when she purchased the property, I cannot find that this error bars respondent from now refusing to admit these children (Id.). Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE


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