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Decision No. 13,653

Appeal of NANCY GARBOWSKI, on behalf of her son, DAVID GARBOWSKI, from action of the Board of Education of the West Hempstead Union Free School District regarding residency.

Decision No. 13,653

(August 14, 1996)

Guercio & Guercio, attorneys for respondent, Thomas M. Volz, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the West Hempstead Union Free School District ("respondent") to exclude her son from its schools on the basis of residency. The appeal must be dismissed.

Petitioner enrolled her son, David, in respondent's district in 1988 listing her residence as 286 William Street in West Hempstead. By letter dated May 2, 1996, respondent notified petitioner's husband, David's father, that David was not entitled to attend its schools because it had determined that David was not a district resident. Petitioner met with the middle school principal on May 8, 1996 to provide proof of residency. By letter dated May 15, 1996, respondent notified petitioner's husband that David would be excluded from its schools on May 24, 1996. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on June 6, 1996.

Respondent contends that its determination was based on competent and substantial evidence and was not arbitrary and capricious. Respondent's investigation disclosed that petitioner and her husband jointly own a residence at 14 Avon Lane, Westbury (within the Westbury school district) and that her vehicle was registered to that address. Respondent's investigator observed petitioner and her son leave the Westbury address at 7:15 a.m. on one occasion, arrive at the West Hempstead address at approximately 7:30 a.m. on three occasions, and drive from the West Hempstead address to the Westbury address at 6:00 p.m on one occasion. Respondent alleges that the only documentation of residence within the West Hempstead district provided by petitioner was a statement from her father and a credit card bill.

Petitioner contends that she and her son live with her parents within respondent's school district. She acknowledges that she and her husband jointly own a residence in Westbury where he resides, that they file a joint income tax return and share homeowner's and car insurance payments, and that she uses the Westbury address on her W-2 form, car registration, and driver's license. She contends that she was unaware that these documents could constitute proof of residency, particularly since they were never required in the past. She alleges that in addition to the statement from her father, she also provided her checkbook displaying the West Hempstead address and various pieces of mail addressed to her there. She acknowledges that David frequently visits his father at his residence in Westbury, but maintains that he lives with her and her parents in West Hempstead. She requests a clear explanation of respondent's residency requirements and adequate time to respond to them.

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 only to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Warburton, 35 id. 74).

In light of the evidence available -- the investigator's report, petitioner's frequent use of the Westbury address, and petitioner's inability to provide greater proof of residence -- I find respondent's determination that David is not a resident reasonable. Accordingly, respondent's determination will not be set aside (Appeal of Allen; supra). Of course, petitioner retains the right to reapply to the district for admission on David's behalf at any time (Appeal of Blagrove, 32 Ed Dept Rep 629; Appeal of Colas, 32 id. 128).

THE APPEAL IS DISMISSED.

END OF FILE