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Decision No. 12,554

Appeal of MARK RITTER from action of the Board of Education of the Sauquoit Valley Central School District relating to student residency.

Decision No. 12,554

(August 5, 1991)

Scolaro, Shulman, Cohen, Lawler & Burstein, P.C., attorneys for respondent, Jane E. Rice, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that his son is not a resident of the Sauquoit Valley Central School District. The appeal must be dismissed.

Petitioner and his wife reside within the Utica City School District. In February 1991 their son, then a student in the Utica city schools, went to live with his cousins, who reside within the Sauquoit Valley Central School District. It is undisputed that petitioner's son made this move solely in order to attend school in the Sauquoit Valley public schools. Petitioner acknowledges that his son returned home on weekends and school holidays, and that he and his wife did not surrender parental control.

The record before me reveals the following chronology. Petitioner's son enrolled in the Sauquoit Valley High School on February 12, 1991. Shortly thereafter, the principal of that school expressed some concern regarding the student's residency, and asked petitioner to write to the superintendent of schools, formally requesting that his son be admitted to school without the payment of tuition. Following review by the board of education at its meeting on March 12, 1991, petitioner's request was denied on the ground that his son was not a resident. The superintendent advised petitioner of this decision by letter dated March 13, 1991.

Following receipt of the superintendent's letter, petitioner and his wife met with the high school principal. The principal advised them of a district policy which permitted non-resident students to attend school without the payment of tuition if the student's family had a signed contract to build or buy a residence within the school district. Petitioner and his wife had, in fact, signed a contract for the purchase of a building lot within the Sauquoit Valley district on February 9, 1991. Consequently, on the basis of this new information, the superintendent of schools notified petitioner that the board of education would reconsider his request.

The offer on petitioner's real estate contract expired on March 30, 1991. By letter dated April 10, 1991, the superintendent advised petitioner that the board of education would honor the request for his son's admission if petitioner could provide an executed extension of the contract by April 15, 1991. The superintendent's letter further stated that if he did not receive an executed extension of the contract by April 15, petitioner's request would be denied and petitioner should re-enroll his son in the Utica city schools. The superintendent properly informed petitioner of his right to appeal to the Commissioner of Education, as required by section 100.2 (y) of the Commissioner's Regulations (8 NYCRR 100.2[y]).

Petitioner was unable to secure an extension on his real estate contract. Consequently, his son was denied admission to the Sauquoit Valley schools. This appeal ensued. Although petitioner requested interim relief, it was unnecessary to address that issue, as respondent agreed to permit petitioner's son to remain in the Sauquoit Valley schools pending a determination on the merits of the appeal.

With certain exceptions not relevant here, the Education Law requires school districts to provide tuition-free education only to students whose parents or legal guardians reside within the district (Education Law '3202; Matter of Whiteman, 24 Ed Dept Rep 337). Although residence for purposes of '3202 may be established in part upon the student's continuing presence in the district and his intent to remain (id.), it is well settled that a student has not established residence when he or she is residing with someone other than a parent solely to take advantage of the schools in the district (Appeal of McMullan, 29 Ed Dept Rep 310, 314). In the present appeal, petitioner candidly admits that his son resided with cousins during the school week solely to attend school in the Sauquoit Valley system. I must conclude, therefore, that petitioner has failed to rebut respondent's determination that his son is not a resident and, consequently, that he has failed to establish facts upon which relief may be granted (8 NYCRR 275. 10; Appeal of Garland, 30 Ed Dept Rep 209, 211).