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Decision No. 14,004

Appeal of DANIEL NORSTRAND, on behalf of his son, DANIEL R. NORSTRAND, from action of the Board of Education of the Le Roy Central School District regarding residency.

Decision No. 14,004

(August 31, 1998)

Kevin T. Finnell, Esq., attorney for petitioner

Harris Beach & Wilcox, LLP, attorneys for respondent, Edward A. Trevvett, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Le Roy Central School District ("respondent") that his son, Daniel R. Norstrand ("Daniel"), is not a district resident entitled to attend its schools tuition-free. The appeal must be sustained.

On August 26, 1996, petitioner and his wife signed a contract to purchase property at 25 Bacon Street, Le Roy, in respondent's school district, with a closing date of October 15, 1996. At the time, they were living on Roanoke Road in the neighboring Pavilion Central School District. Respondent admitted Daniel for the fall 1996 semester based on its "Future Residents" policy, which allows "children of nonresident families who have signed a contract to buy, rent, or build a residence in the school district [to] be enrolled without tuition for the semester in which they will become residents." In a letter dated September 10, 1996 respondent's superintendent informed petitioner that he would have to be residing at the Bacon Street address by January 30, 1997, for Daniel's enrollment to be continued.

According to petitioner, he and Daniel moved into the Bacon Street property in December 1996. He claims that because the closing was delayed, he arranged to rent the property in the interim. Petitioner claims, and respondent acknowledges, that he notified respondent of the move and produced his driver's license with a handwritten change of address, a voter registration card, and utility bills as proof of residency. (Petitioner subsequently purchased the property, in his name alone, on March 14, 1997.)

By letter dated February 6, 1997, respondent's superintendent notified petitioner that Daniel would be excluded as of February 10, 1997, for the following reasons:

1. Your original request to enroll your son was pursuant to the Contract for Sale of a residence at 25 Bacon Street, Le Roy. As of this date, you have not fulfilled that contract and to my knowledge are not moving forward with finalizing said sale.

2. Both you and your wife have indicated to me that you have separated. However, I have no legal document indicating that a legal separation has occurred and that you have indeed changed your residence from Roanoke Road, Pavilion to Bacon Street, Le Roy.

This appeal ensued. Petitioner claims that his son is a district resident, entitled to attend district schools tuition free. Respondent denies that petitioner is entitled to the relief requested. Petitioner's request for interim relief pending a determination on the merits was granted on March 7, 1997.

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.

In this case, respondent also admits nonresident students without the payment of tuition when a student's family is moving into the district during the semester. Daniel attended respondent's school district during the fall 1996 semester by virtue of this policy. However, before the start of the next semester in February 1997, when respondent excluded Daniel, petitioner had notified respondent that he and Daniel were living in the district.

Commissioner's regulation ' 100.2(y) sets forth the procedures that a district must follow in determining whether a child is entitled to attend district schools. They require, inter alia, that when a board or its designee determines that a child is not a resident, it must provide written notice to the parent, including the basis for the determination. The reasons provided in the superintendent's February 6, 1997 letter were that petitioner had not completed the purchase of the Bacon Street property and that petitioner and his wife were not legally separated. There is no legal basis for excluding an allegedly resident student on either of these grounds. Therefore, I find respondent's decision arbitrary, capricious and unreasonable.

In this case, I liberally allowed both parties to submit information in support of their positions. Petitioner submitted affidavits in support of his assertion that he and his son have lived at 25 Bacon Street since December 1996. Respondent submitted affidavits in support of a theory that petitioner is not living at the Bacon Street property, but is merely attempting to give the appearance of residency. However, respondent's submissions are not relevant to this appeal because, according to respondent's notice, the factual question of Daniel's residence was not the basis for Daniel's exclusion.

In view of the record before me, respondent's decision to deny petitioner's son admission to school is arbitrary, capricious, and an abuse of discretion. Accordingly, it will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Daniel R. Norstrand to attend school in the Le Roy Central School District without the payment of tuition.

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