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Decision No. 14,766

Appeal of SHEILA BANARSEE, on behalf of TERESS PERSAUD, from action of the Board of Education of the Freeport Union Free School District, regarding residency.

Decision No. 14,766

(August 2, 2002)

Greenstein Starr Gerstein & Rinaldi LLP, attorneys for petitioner, Samantha Sheeber, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Deborah Richardson DeCuevas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that her daughter, Teress, is not a district resident. The appeal must be dismissed.

Petitioner and her husband reside at an address on Moore Avenue in Freeport. Their daughter, Teress, has resided with them at this address since August 2001. In August 2001, petitioner registered Teress in respondent's schools and in September 2001 Teress commenced attendance in the seventh grade at the John W. Dodd Junior High School.

On or about, December 6, 2001, respondent's attendance officer learned that the Moore Avenue address provided by petitioner was located outside the boundaries of the Freeport Union Free School District. The attendance officer wrote a letter that same date to Teress' parents informing them that the address at which they reside is not within the district; that Teress is not eligible to attend the district's schools; and that the student's last day of attendance would be December 13, 2001.

On December 11, 2001, petitioner wrote a letter to respondent's superintendent protesting the district's determination. On December 17, 2001, a meeting was held with petitioner, her attorney, the superintendent, the attendance officer, the district's director of central registry and its assistant superintendent for curriculum and instruction. At the meeting, the district representatives acknowledged that the Office of Registrar made a mistake in registering Teress and that the student should be attending the Roosevelt Union Free School District. It was decided at the meeting, and confirmed in a letter dated December 21, 2002 from the attendance officer, to permit Teress to continue to attend at the Dodd Junior High School until the end of the first marking period on January 25, 2002. A copy of the letter was sent to the Dodd Junior High School to alert school officials to the fact that Teress was to be excluded after January 25, 2002.

In late January 2002, after January 25, 2002, the attendance officer called the Dodd Junior High School and found that Teress was still in attendance. By letter dated February 11, 2002, the superintendent sent petitioner a letter excluding Teress from further enrollment based upon his determination that she was not a district resident. The letter stated that Teress would be permitted to remain in attendance up through and including the winter break, which ended on February 25, 2002.

Petitioner commenced this appeal on February 25, 2002. On February 25, 26 and 27, 2002, Teress was again present at the Dodd Junior High School. The superintendent informed petitioner in a hand-delivered letter, dated February 27, 2002, that Teress would be excluded from further attendance until a decision was rendered in this appeal. Petitioner's request for interim relief pending a decision in this appeal was denied on March 4, 2002.

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 students whose parents or legal guardians reside within the district (Appeal of L.W., 41 Ed Dept Rep __, Decision No. 14,717; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377). The record indicates, and petitioner does not dispute, that the address at which she and her daughter reside is located outside the boundaries of respondent's district. Accordingly, petitioner and her daughter are not residents of respondent's district and Teress is not entitled to attend respondent's schools.

Petitioner contends that her daughter should be allowed to continue to attend respondent's schools because respondent mistakenly permitted her daughter to enroll in the district and attend class since September 2001, and that enrollment in another school district would adversely impact her daughter's education. However, pursuant to Education Law "3202 entitlement to attend school is based solely on residency within the school district. Although respondent's mistake has led to an unfortunate situation, petitioner's daughter has not acquired any legal right to continue attending respondent's schools on a tuition-free basis (Appeal of Aimino, 40 Ed Dept Rep 501, Decision No. 14,537; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Marston, 34 id. 105, Decision No. 13,247).

In her reply petitioner misconstrues and miscites the provisions of Education Law "3202 in contending that pursuant to "3202(e)(i) once the identity of a school district for a particular student is made, written notice of such placement shall be served on the district; that in the event that the district seeks to challenge that placement, it must submit within 10 days from receipt, evidence to establish that the chosen district is not the student's district of residence; and that pursuant to "3202(e)(ii) in the event the district fails to submit evidence regarding the student's proper district, the determination becomes final. The aforementioned provisions are in fact found in Education Law "3202(4)(f), and are irrelevant to this appeal since they relate to the placement of pupils in family homes at board by a social services district or a state department or agency.

Petitioner also contends in her reply that the district failed to comply with "100.2(y) of the Commissioner's Regulations in that the December 6, 2001 letter of Natalie Connor of the District's Central Registry Office was not provided within two days of the residency determination and failed to advise of the right to appeal to the Commissioner of Education pursuant to Education Law "310, within 30 days of the date of the determination. However, petitioner again misconstrues the regulation.

Section 100.1(y) provides, in pertinent part, that:

Any decision by a school official, other than the board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district.

The affidavit of Natalie Connor, sworn to the 28th day of February 2002, states that on or about December 6, 2001, she learned that 101 Moore Avenue, Freeport, provided as the home address for Teress upon her registration, was not within the boundaries of the district; that on December 6, 2001 she wrote a letter to petitioner and her husband informing them that the address where they resided is not within the Freeport Union Free School District; that Teress is not eligible to attend the district's schools; that the last day of attendance for Teress would be Thursday, December 13, 2001; and that if they wished to contest this determination, they must apply in writing to the superintendent within five days of their receipt of the notice. These actions comply with the above cited provision of "100.2(y).

"100.2(y) further provides that:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child, or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district.

The record indicates that on December 11, 2001, petitioner wrote a letter to the superintendent protesting the decision to exclude Teress; that on December 17, 2001, the superintendent met with petitioner and her attorney and others to discuss Teress' exclusion and petitioner was given an opportunity to submit evidence concerning the Teress' right to attend school in the district. Therefore, I find respondent to be in compliance with the aforementioned provision of "100.2(y).

"100.2(y) next provides:

When the board or its designee determines that a child is not entitled to attend the schools of such district because such child is neither a resident of such district nor entitled to attend its schools pursuant to subdivision (x) of this section [relating to the rights of a homeless child to attend school], such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate. Such written notice shall state:

  1. that the child is not entitled to attend the public schools of the district;

(2) the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools pursuant to subdivision (x) of this section;

(3) the date as of which the child will be excluded from the schools of the district; and

(4) that the determination of the board may be appealed to the Commissioner of Education, in accordance with Education Law section 310, within 30 days of the date of the determination, and that the procedure for taking such an appeal may be obtained from the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234 or by calling (518) 474-5807.

The record indicates that a notice complying with the above provision was not provided until the February 11, 2002 letter of the superintendent. Although, pursuant to "100.2(y), respondent should have provided the written notice within two business days of the superintendent's determination on December 17, 2001 that petitioner's daughter is not a resident of the district, petitioner has not been injured by such omission because petitioner's daughter was permitted to remain in attendance until February 25, 2002, the date provided in the superintendent's February 11, 2002 letter and the date petitioner commenced this appeal. In any event, as discussed above, pursuant to Education Law "3202 entitlement to attend school is based solely on residency within the school district, and respondent's technical noncompliance in providing notice pursuant to "100.2(y) does not confer on petitioner's daughter any legal right to continue attending respondent's schools on a tuition-free basis.

I note that, pursuant to Education Law "3602(2), a board of education may, but is not required to, admit nonresident students upon the payment of tuition or such other terms prescribed by the board. However, it appears from the record that respondent, in the exercise of its discretion under the statute, does not permit the admission of nonresident students.

THE APPEAL IS DISMISSED.

END OF FILE