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Decision No. 13,630

Appeal of KRYSTYNA FIJALKOWSKI, on behalf of her son, JACEK FIJALKOWSKI, from action of the Board of Education of the Cheektowaga-Sloan Union Free School District regarding residency.

Decision No. 13,630

(June 27, 1996)

Jaeckle, Fleischmann & Mugel, Esqs., attorneys for respondent

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Cheektowaga-Sloan Union Free School District ("respondent") that her son, Jacek, is not a resident of the district and therefore not entitled to attend the district's schools. The appeal must be dismissed.

Petitioner is the mother of Jacek, who attends John F. Kennedy High School in respondent's district. Petitioner resides in Buffalo, outside respondent's district. Petitioner previously resided in Sloan, New York, within respondent's district, until she was forced to relocate because of pending litigation over the house in Sloan. On September 12, 1995, petitioner was notified that respondent had determined that her son was not a resident of the district and could not continue at respondent's high school. This appeal ensued. Respondent permitted the student to remain in school pending a final determination of petitioner's appeal.

Petitioner contends that she intends to return to a residence in the district once all pending litigation regarding her previous residence in the district is resolved. She requests relief permitting her son to attend respondent's school. Respondent contends that petitioner's intent to establish a domicile in its district at some future date is insufficient to establish the district as her legal district of residence. Respondent also contends that the appeal is not timely.

Education Law '3202(1) provides, in pertinent 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.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

The record in this case indicates that petitioner admits that she does not reside in respondent's district. Her assertion that she intends to relocate to the district at some indefinite point in the future is insufficient to establish her residence in that district (Appeal of Cippitelli, 34 Ed Dept Rep 348). Therefore, there is no basis for me to order respondent to admit petitioner's son to its schools.