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Decision No. 13,186

Appeal of JACK B. COX, SR., on behalf of his daughter, JENNIFER, from action of the Board of Education of the Lansingburgh Central School District regarding termination of instruction.

Decision No. 13,186

(May 23, 1994)

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent, Melvin H. Osterman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that his daughter may not attend Lansingburgh High School. The appeal must be dismissed.

In November 1993, petitioner enrolled his daughter Jennifer in respondent's high school. Upon discovering in January of 1994 that petitioner and Jennifer were not residents of the district, respondent's administrator informed petitioner that Jennifer could not attend respondent's schools. This appeal ensued.

Petitioner concedes that he and Jennifer are not residents of respondent's district, but contends that his daughter should be allowed to continue to attend high school in the district because she is doing well at the school, the school is close to their residence and he hopes to move into the district in the future.

Education Law '3202(1) provides 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. (Emphasis supplied).

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446). As noted above, petitioner acknowledges that neither he nor Jennifer are district residents. Accordingly, Jennifer is not entitled to attend respondent's schools on a tuition-free basis.

Petitioner also contends that he should be allowed to pay tuition for Jennifer to attend respondent's high school. This contention is also without merit. Education Law '3202(2) provides:

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.

Pursuant to that provision, a board of education may elect to admit nonresident students on a tuition basis, but is not required to do so (Matter of Fenton, 15 Ed Dept Rep 100). The record indicates that respondent has a policy of not allowing nonresident students to attend its schools. Accordingly, there is no basis for granting petitioner's request ordering respondent to accept Jennifer as a student, with or without the payment of tuition.