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Decision No. 12,946

Appeal of JULIO MARTE, on behalf of Maritza Garcia, from action of the Board of Education of the Sewanhaka Central High School District regarding admission to school.

Decision No. 12,946

(June 9, 1993)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals on behalf of his cousin Maritza Garcia from respondent's refusal to admit Maritza to the schools of the district. The appeal must be dismissed.

Petitioner is a resident of the Sewanhaka district. In September 1992 he attempted to enroll Maritza in ninth grade at respondent's Elmont Memorial High School. Prior to this attempt, the student resided with her mother within the City School District of the City of New York. Petitioner submitted his affidavit together with one from the student's mother indicating that Maritza was living temporarily with petitioner because she wants to attend high school in Sewanhaka rather than in New York City. Based on those admissions, respondent denied Maritza admission to its schools. That decision was upheld by the district's administrative review officer on September 22, 1992. This appeal ensued.

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:

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 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 Morrello, supra; Matter of Pitman, 2 id. 453. Based on the affidavits submitted by petitioner and the mother, respondent determined that the sole reason Maritza was living with petitioner was to take advantage of the program offered by respondent. A review of those affidavits supports respondent's determination. Accordingly, respondent's determination is reasonable and will not be set aside.