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Decision No. 13,763

Appeal of EVELYN E. FARKASH, on behalf of MICHELLE DEVITO, from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 13,763

(April 21, 1997)

Sidney Romash, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that her daughter did not reside in the high school district during the 1994-95 school year, and challenges the district's demand that petitioner reimburse the district tuition for that year. The appeal must be dismissed.

Petitioner currently resides at 118 N. Cottage Street in respondent's school district, where her daughter attends the public schools tuition-free, pursuant to Education Law '3202. There is no dispute between the parties regarding petitioner's current residence in the district.

Petitioner enrolled her daughter in kindergarten in the Valley Stream Union Free School District in 1987, and the child attended elementary school in that district continuously until she graduated to seventh grade and began attending Memorial Junior High in the Valley Stream Central High School District in 1994. Subsequent to the student's completion of seventh grade at the end of the 1994-95 school year, respondent notified petitioner pursuant to 8 NYCRR 100.2(y) that there was a question regarding her residency in the high school district during the 1994-95 school year. Based upon two reports of an investigator hired by the district, respondent indicated that it appeared that the pupil had actually resided in Rosedale, New York during the 1994-95 school year. Respondent's superintendent informed petitioner that he would conduct a hearing at which petitioner could present information on the issue of her residency during the 1994-95 school year.

At the hearing, respondent submitted the two investigative reports and heard testimony by petitioner and her daughter. Petitioner was provided an opportunity to submit any relevant documentary evidence at that time, but submitted none. Based on the information before him, respondent's superintendent determined that, although petitioner and her daughter currently reside in respondent's school district, they had not resided in respondent's district during the 1994-95 school year. Based on that determination, respondent billed petitioner for tuition reimbursement. This appeal ensued.

Petitioner asserts that she has continuously resided in Valley Stream since her daughter's enrollment in kindergarten in 1987. She claims that, upon her second marriage in 1990, she and her husband continued to reside on Cottage Street in Valley Stream; that they resided in Rosedale over the summer of 1994; and that she and her daughter returned to Valley Stream to live with her mother at 118 North Cottage Street in September 1994. Petitioner asserts that her marital difficulties escalated through the 1994-95 school year. She claims that, although she and her daughter spent time intermittently in Rosedale during 1994-95 in an attempt to resolve these difficulties, she continued to reside at 118 North Cottage Street in Valley Stream throughout that period. Finally, in March 1995, petitioner claims that she and her husband permanently separated.

Respondent asserts that neither petitioner nor her daughter were residents of its school district during the 1994-95 school year; that they, in fact, resided in Rosedale and, therefore, petitioner must reimburse the district tuition for that year.

Education Law '3202(1) provides that a child "is entitled to attend the public schools maintained in the district in which such person resides without 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 Mountain, 35 Ed Dept Rep 382; Appeal of Allen, 35 id. 112). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Mountain, supra; Appeal of Reilly, 35 id. 305).

In making its determination that petitioner and her daughter did not reside in respondent's district during the 1994-95 school year, respondent relied on a number of significant factors. Petitioner admits that she, her husband and daughter resided in Rosedale during the summer of 1994. Although she claims that she moved back to Valley Stream in September 1994, the record does not support that assertion. Petitioner and her daughter returned to Rosedale regularly each week, and petitioner's 1994 tax returns filed in 1995 stated the Rosedale address as her residence. In addition, one of respondent's investigative reports indicates that petitioner's mother admitted in a June 1995 telephone conversation that petitioner did not reside with her in Valley Stream. Although petitioner complains that she was unable to question the investigator at the hearing, she was apprised of his statement prior to the hearing and failed to introduce any testimony or affidavit by her mother in contravention of that statement. Nor did petitioner submit any other documentary evidence to support her residency claim. I also note, based upon my review of the hearing transcript, that the testimony of petitioner and her daughter is ambiguous and frequently failed to provide direct answers to questions asked by respondent's superintendent and attorney with respect to their residency during the relevant time period.

Upon review of the information in the record before me, I find respondent's determination that petitioner and her daughter did not reside in its district during the 1994-95 school year was not unreasonable. Therefore, I find no basis on which to substitute my judgment for that of respondent.

THE APPEAL IS DISMISSED.

END OF FILE