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Decision No. 14,537

Appeal of KAREN AIMINO, on behalf of her son JACOB ROBERT AIMINO, from action of the Board of Education of the Newark Central School District regarding residency.

Decision No. 14,537

(February 12, 2001)

Harter, Secrest & Emery, LLP, attorneys for respondent, Ronald J. Mendrick, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Newark Central School District ("respondent") that her son is not a resident and, therefore, is not entitled to attend the district's prekindergarten program. The appeal must be dismissed.

Petitioner resides with her four year old son, Jacob, in the Marion Central School District. In May 2000, petitioner received a canvass letter from respondent's superintendent of schools indicating that the district's census showed petitioner had a four year old child who was eligible to attend the Newark Central School District's prekindergarten program. The form letter stated that, if the recipient had an eligible child, the recipient should complete an attached "sign-up form" and return it to the district to be included in a lottery drawing for enrollment in the prekindergarten program.

Petitioner completed and returned the sign-up form. By letter dated May 23, 2000, respondent's superintendent notified petitioner that her son was selected to attend the district's prekindergarten program. Jacob began attending on September 5, 2000. By letter dated September 25, 2000, respondent's superintendent notified petitioner that an audit of district records revealed that petitioner and her son did not reside in respondent's school district and, therefore, Jacob was not entitled to continue attending respondent's prekindergarten program. Petitioner discussed the situation with respondent's superintendent. By letter dated October 6, 2000, the superintendent acknowledged the district's error in sending petitioner the May 5, 2000 letter inviting her to enter Jacob in the lottery for the district's prekindergarten program. Nevertheless, the letter confirmed that, because petitioner resided in the Marion Central School District, her son was not entitled to continue attending respondent's prekindergarten program. The superintendent informed petitioner of her right to appeal his decision to respondent and thereafter to the Commissioner of Education.

On October 18, 2000 petitioner appealed to respondent and, by letter dated October 25, 2000, respondent upheld the superintendent's determination. This appeal ensued.

Petitioner admits that she and her son do not reside in respondent's school district but, instead, reside in the Marion Central School District. Nevertheless, she requests an order directing respondent to permit her son to continue attending its prekindergarten program for the 2000-01 school year. Petitioner bases her claim that her son is entitled to attend respondent's prekindergarten program solely on the fact that respondent's staff solicited her application and permitted her son to begin attending the program in September 2000. Respondent contends the appeal must be dismissed because, as a non-resident, petitioner's son is not entitled to attend its prekindergarten program.

Education Law "1712 authorizes boards of education to maintain kindergartens and nursery schools which are free to resident children between the ages of four and six years. Petitioner admits that she and her son are not residents of respondent's school district. Therefore, her son is not entitled to continue to attend respondent's prekindergarten program. The fact that respondent's staff may have erroneously permitted petitioner's son to enroll in its prekindergarten program is unfortunate, but is not binding upon respondent and does not provide a basis for its continuing an action that is not compelled under law
(Appeal of Turner, 40 Ed Dept Rep ___, Decision No. 14,447).

THE APPEAL IS DISMISSED.

END OF FILE