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Decision No. 14,772

Appeal of DEBRA CURRAN, on behalf of her son WILLIAM, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 14,772

(August 12, 2002)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

Cate, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District ("respondent") that her son William is not a district resident. The appeal must be dismissed.

Petitioner formerly resided in Deer Park with her husband and children. She and her husband are divorcing. Petitioner and her two sons reside with her parents in Bay Shore, within the Brentwood Union Free School District. Petitioner states that she and the children have lived in Bay Shore for two years and that her husband continues to reside in the Deer Park home, which they own jointly. She further states that the Deer Park home is under contract to be sold and that she will attempt to find new housing in Deer Park when the sale is complete.

Respondent apparently determined that William is not a district resident and notified petitioner that he would be excluded from its schools in early May 2002. Neither party has documented this determination in the record. This appeal ensued. Petitioner"s request for interim relief was granted on May 9, 2002.

Petitioner contends that she temporarily resides in Bay Shore and intends to return to Deer Park once her former residence is sold. Respondent argues that petitioner and her children have lived in Bay Shore for two years, indicating that her residence there is not temporary. Respondent further asserts that petitioner has submitted no evidence of any efforts to find new housing in the district.

The appeal must be dismissed. 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 Brown, 42 Ed Dept Rep ___, Decision No. 14,760; Appeal of L.W., 41 id. ___, Decision No. 14,717; Appeal of Pierre, 40 id. 538, Decision No. 14,551).

Residence for purposes of "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Brown, supra, Appeal of Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of James, 41 Ed Dept Rep ___, Decision No. 14,752; Appeal of Santana, 40 id. 57, Decision No. 14,420). Petitioner does not claim to live in respondent"s district. She acknowledges that she and William have lived in Bay Shore for the past two years. She alleges that this is a temporary arrangement and that she intends to return to respondent"s district, but presents no evidence of any efforts to do so. She evidently does not plan to return to the former family residence in Deer Park. Her husband lives there and the home is under contract for sale. The bare assertion of an intention to return to the district, absent any showing that continuing efforts are being made to secure a residence, does not alone establish legal residence (Appeal of Dina L., 41 Ed Dept Rep ____, Decision No. 14,594). On the record before me, I cannot find respondent"s determination that William is not a district resident to be arbitrary or capricious.

Respondent requests that I enter an order directing petitioner to pay tuition for William"s attendance during the 2001-2002 school year. However, the Commissioner of Education has no statutory authority to award student tuition (Appeal of Tobias, 41 Ed Dept Rep _____, Decision No. 14,612; Appeal of Marino, 40 id. 13, Decision No. 14,404).