Skip to main content

Decision No. 12,935

Appeal of BILLIE JO CRAFT, on behalf of Molina Shawn Silva, from action of the Board of Education of the Pine Plains Central School District regarding admission to school.

Decision No. 12,935

(May 28, 1993)

Shaw & Silveira, Esqs., attorneys for respondent, David S. Shaw and Jay M. Siegel, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals on behalf of Molina Shaw Silva from respondent's refusal to admit the student to the schools of the district. The appeal must be dismissed.

Petitioner and her husband reside in the Pine Plains Central School District. On or about November 9, 1992 petitioner attempted to enroll Molina in respondent's school. Molina had previously attended schools in Kingston where her mother resides. Petitioner and Molina's mother stated in affidavits submitted to respondent that Molina is staying with petitioner because it was felt she would get a better education in Pine Plains and she intended to stay with petitioner until she graduated from high school. On December 4, 1992 petitioner and Molina's mother submitted different affidavits stating that Molina was living with petitioner due to a "mother-daughter conflict." Respondent denied Molina admission to its schools and subsequently notified petitioner of an opportunity to submit all documentation on this matter for a final determination at its January 15, 1993 meeting. Petitioner did not appear at that meeting and submitted no new information. Instead, petitioner commenced this appeal.

The appeal must be dismissed. The right of admission to the schools of a public school district on a tuition-free basis is accorded only to residents of the district, pursuant to Education Law '3202(1), which reads in 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.

As was noted in Matter of Buglione, 14 Ed Dept Rep 220, the purpose of this statute is to limit the obligation of school districts to provide tuition-free education, with certain exceptions which are not relevant in this instance, to students whose parents or legal guardians reside within the district.

A student's residence is presumed to be that of his or her parents (Matter of Schwartz, 12 Ed Dept Rep 187). A determination by a board of education that a child is not a resident of its school district will not be set aside unless it is arbitrary, capricious or unreasonable (Matter of Buglione, supra). The presumption that a child's residence is that of the parents is, however, rebuttable and can be overcome by demonstrating that the parent has relinquished parental control. For purposes of school district residence, the child's residence then becomes that of the person assuming parental control (Matter of Morello, 9 Ed Dept Rep 130). In this instance, petitioner has failed to rebut the presumption that the child's residence is with her mother.

A board of education is not required to accept a student on a tuition-free basis where the sole reason for the child's change of residence is to take advantage of the educational program available in another school district (Matter of Proias, 111 Misc 2d 252; Matter of Fichtner, 22 Ed Dept Rep 119; Matter of Morello, supra; Matter of Pitman, 2 id. 453). Based on the original affidavits submitted by petitioner and the mother, respondent determined that the sole reason Molina was living with petitioner was to take advantage of the program offered by respondent. Only later did petitioner and the mother offer another reason for the change in residence, i.e., an unspecified "mother-daughter conflict." A review of the affidavits supports respondent's determination. Accordingly, respondent's determination was not arbitrary, capricious or unreasonable and will not be set aside.