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Decision No. 17,093

Appeal of JOHN BOTSAKOS, on behalf of ELLA MAE KRETSCHMER, from action of Stephen Draper, Assistant Superintendent, and the Board of Education of the Baldwin Union Free School District regarding transportation.

Decision No. 17,093

(June 2, 2017)

Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District (“respondent” or “board”) that Ella Mae Kretschmer (“the student”) is not a district resident and is therefore not entitled to transportation to a nonpublic school.  The appeal must be dismissed.

According to petitioner, during the 2016-2017 school year, the student resided with petitioner beginning October 9, 2016 and started attending Long Island Lutheran High School (a “nonpublic school”)[1] on October 10, 2016, as part of a “formal exchange student program” between the nonpublic school and students from Australia for “three months, or until approximately January 2, 2017.”[2]  According to the record, this arrangement arose from a “guardianship” arrangement between the student’s parents, and petitioner and his wife, whereby petitioner agreed to host the student during her enrollment and attendance at the nonpublic school.

On or about September 14, 2016, the assistant headmaster of the nonpublic school contacted the office of the district’s assistant superintendent for business and administrative services (“assistant superintendent”) regarding transportation of the student from petitioner’s residence, located within the district, to the nonpublic school.  The assistant superintendent avers, in an affidavit, that he verbally informed the assistant headmaster that the district would not be providing transportation services for the student.  By email on October 6, 2016, the assistant headmaster wrote that he “wish[ed] to appeal the decision to deny transportation” to the student and to a second Australian exchange student, hosted by another family in the district.  By email on October 11, 2016, the assistant superintendent denied the appeal stating that “the school district will continue its past practice of not providing transportation to exchange students.”  By letter dated October 21, 2016, the hosts and guardians of the second Australian exchange student appealed to the board seeking transportation for both the student in the instant appeal, and also for the student that they were hosting.[3]  By letter dated October 28, 2016, respondent denied the appeal.[4]  Petitioner states that, “[o]n or about November 9, 2016, [he] contacted the office of the Commissioner of Education in Albany and was advised that, in order to address this problem [he] needed to file an appeal with the Commissioner.”  This appeal ensued.  Petitioner’s request for interim relief was denied on December 5, 2016.

Petitioner contends that he is the student’s legal guardian for the period of her stay, and that the student intends to reside with petitioner in the district for approximately three months - from October 9, 2016 until January 2, 2017 to attend the nonpublic school.  Petitioner further asserts that - unlike petitioner’s daughter who resides with him and receives transportation provided by the district to and from the nonpublic school - respondent’s denial of transportation to the student violates both the district’s transportation policy and the Education Law.  Petitioner appeals respondent’s decision denying transportation as arbitrary, capricious and unreasonable, and seeks an order mandating that the district “immediately and continuously” provide transportation to the student to and from the nonpublic school.

Respondent contends that the appeal is moot because, as admitted by petitioner, the residency is temporary and the student will return to her parents in Australia on January 2, 2017.  Respondent further contends that the student is not a district resident, that she is only temporarily staying with petitioner in order to attend a private high school, and that petitioner did not obtain a total and permanent transfer of custody and control of the student from her parents.  Respondent states that petitioner has established neither guardianship as contemplated by the Education Law, nor the requisite residency qualifications under policy and law (including the intent to remain in the district) that would entitle the student to transportation.  Respondent further asserts that petitioner fails to state a claim upon which relief may be granted and that its decision was not arbitrary or capricious. 

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Based on the record, petitioner admits that the student’s residence with petitioner in the district and attendance at the nonpublic school would be for a temporary period of approximately “three months” ending January 2, 2017.  As this period has ended, the student is, on this record, no longer in need of transportation, and thus, the matter is moot and the appeal must be dismissed. 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Initially, with respect to respondent’s argument that the (foreign exchange) student is not a district resident, I note that under Education Law §3202(2), a school district may decide to accept nonresident students on terms prescribed by the board of education.  Additionally, Education Law §1709(3) and (13) grant boards of education the power to regulate the admission of students, to admit nonresident students and to regulate and establish tuition fees for such nonresident students.  Accordingly, prior Commissioner’s decisions have found that a board of education may prescribe the terms and conditions under which it decides to admit nonresident students, including foreign exchange students (Appeal of Stewart, 56 Ed Dept Rep, Decision No. 17,000; Appeal of Volk, 43 id. 186, Decision No. 14,964).  However, as noted by respondent, the district has no policy specific to foreign exchange students and its policy on nonresident students provides that “[s]tudents who live outside the ... district are considered nonresidents and may not attend school in the district.”  Respondent’s procedures on nonresident students provide certain exceptions to this policy (which are not applicable here) and also provide that “[n]onresident students shall not receive transportation to and from school at district expense.”  Nevertheless, in this case, petitioner contends that he has guardianship (or custody) of the student and that the student is a district resident entitled to transportation under the law. 

Pursuant to Education Law §3635(1)(a), a board of education is required to provide transportation to students residing in the district provided the student resides within 15 miles of the nonpublic school in question, as measured by the nearest available route between home and school (Appeal of Stewart, 56 Ed Dept Rep, Decision No. 17,000; Appeal of Pacione, 38 id. 363, Decision No. 14,055).  School districts are not required by law to provide transportation to non-resident students (Appeal of G.S., 56 Ed Dept Rep, Decision No. 17,083; Appeal of Markarian, 47 id. 114, Decision No. 15,644; Appeal of Jeudy, 46 id. 512, Decision No. 15,579).

Education Law §3202(1) provides, in pertinent part, as follows:

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).

Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On the record before me, petitioner has not carried his burden of establishing that there has been a total and permanent transfer of custody and control over the student from her parents to petitioner.  The record contains a copy of a letter dated October 1, 2016, signed by the director of admissions of the nonpublic school and by the student’s parents, stating that petitioner and his wife “will serve as [the student’s] host family and guardian during her stay at [the nonpublic school]” (emphasis deleted).[5]  By its terms, this letter granting “parent approval for this guardian coverage” is temporary and, thus, does not constitute a total or permanent transfer of custody or control to petitioner. 

Nor does petitioner offer any other evidence that would rebut the presumption that the student lives with her parents outside the district on anything other than a temporary basis.  On the totality of the record before me, I cannot conclude that there has been a total, permanent transfer of custody and control of the student to petitioner. 

Therefore, the presumption that the student resides with her parents has not been rebutted and I cannot conclude that respondent’s determination that she is not a district resident entitled to transportation to the nonpublic school is arbitrary, capricious or unreasonable (see Appeal of Stewart, 56 Ed Dept Rep, Decision No. 17,000).  Thus, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.




[1] Respondent notes that the nonpublic school is located outside the district.


[2] It is noted that the student’s dates of residence and/or attendance, referenced throughout the record, vary slightly (e.g., October 1, 2016 through January 15, 2017 and October 8, 2016 to January 2, 2017) but do not affect the outcome of this appeal.


[3] Respondent notes that petitioner was not a party to this letter or to the appeal to the board.


[4] Due to an error in the board’s letter denying transportation for the two exchange students to the nonpublic school, the board sent an amended letter dated November 3, 2016 to the parents of the second exchange student correcting the date of the board meeting at which the appeal was reviewed and acted upon from October 19, 2016 to October 26, 2016, as well as a letter dated November 4, 2016 explaining and clarifying the error.


[5] It is also noted that the letter is not signed by petitioner or his wife, although there is a signature line for “Mr. and Mrs. Botsakos”.