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Decision No. 13,131

Appeal of STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the Roslyn Union Free School District regarding residency.

Decision No. 13,131

(March 10, 1994)

Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the determination of the Board of Education of the Roslyn Union Free School District ("respondent") that their daughter may not attend respondent's schools during the 1994-95 school year tuition free. The appeal must be dismissed.

In August 1993, petitioners informed respondent's assistant superintendent that they would be moving out of the district and requested permission for their daughter to remain in respondent's high school until June 1995 to complete her senior year. The reason for petitioners' request was that their daughter was classified learning disabled in the first grade, had made significant progress in respondent's programs and that any disruption in her education would be detrimental. Petitioners' daughter is currently mainstreamed in all classes, but is still enrolled in a support program.

On September 2, 1993, respondent's assistant superintendent informed petitioners, pursuant to their established policies, that their daughter could remain in respondent's schools tuition free until her junior year ended in June 1994, but could not attend respondent's schools after that date. Petitioners appealed that decision to respondent board on September 9, 1993 and received a written determination affirming the earlier decision on September 28, 1993. This appeal ensued. Apparently, after this appeal was filed, petitioners were granted a hearing on November 16, 1993 to further review the matter and allow petitioners the opportunity to address respondent and to present information in support of continued attendance.

Petitioners allege that respondent failed to provide them with a timely copy of the district's policy concerning residency which informed them of their right to appeal respondent's determination. Respondent contends that since this was not a case of disputed residency, the district's policy, which covers the procedural requirements of 8 NYCRR 100.2(y), was not material to petitioners' case. Respondent also contends that since it provided petitioners with the November 16, 1993 hearing, the appeal is moot. Respondent further contends that its determination was not arbitrary, capricious or unreasonable.

Education Law '3202 provides:

1. 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.

2. Nonresidents of a district, if otherwise competent, may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board.

In appeals to the Commissioner of Education, petitioner bears the burden of establishing a clear legal right to the relief requested (Appeal of Hartmann, 32 Ed Dept Rep 640; Appeal of Keller, 32 id. 47; Appeal of Veterans Transportation Co., Inc., 26 id. 163). Petitioners seek to have their daughter attend respondent's school during the 1994-95 school year, yet they admit they no longer reside in the district. Education Law '3202(1) clearly establishes the right of residents to attend the public schools of the district tuition free. That right does not extend to nonresidents without the express consent of the board of education. Respondent has declined to grant that consent in this case. Therefore, petitioners have failed to demonstrate any legal right to the relief requested.

Petitioners also seek review of respondent's determination that their daughter may not attend respondent's high school after June 1994. Respondent considered petitioners' request in light of Board Policy 5152(3) which states:

Former resident: Regularly enrolled children of parents or persons in parental relation or persons having custody and control of a minor who have moved out of the school district after the opening day will be permitted to complete only the current school year in the district without payment of tuition. A student enrolled as a member of the senior class whose parents or persons in parental relation or persons having custody and control of a minor who shall have moved from the district after July 1, may be permitted to finish that school year without payment of tuition.

Based on this policy, respondent determined that petitioners'

daughter would be permitted to remain in respondent's high school until June 1994 to complete her junior year, but would not be permitted to complete her senior year tuition free. Petitioners sought review of this determination, mistakenly believing that they had not been granted their procedural right to review respondent's determination. Because petitioners admit they are not residents of the district, this is not a case of disputed residency that would fall under 8 NYCRR 100.2(y). Therefore, petitioners were entitled to none of the procedural protections afforded to individuals involved in residency disputes.

In any event, respondent provided petitioners with an additional hearing after this appeal was commenced and upheld its original determination after a review of all the information presented by petitioners. My review of the record indicates that respondent acted properly. Its determination was not arbitrary, capricious or unreasonable since respondent carefully reviewed petitioners' request and permitted petitioners' daughter to remain in its high school through June 1994, consistent with its policy on former residents.