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Decision No. 13,823

Appeal of MICHAEL G. GANNON, on behalf of his daughter, KATHERINE, from action of the Board of Education of the Carle Place Union Free School District regarding residency.

Decision No. 13,823

(August 21, 1997)

Kraemer & Mulligan, attorneys for respondent, Robert F. Mulligan, Esq., of counsel


CATE, Acting Commissioner.--Petitioner appeals respondent's determination that his daughter, Katherine, is not a resident of the Carle Place Union Free School District ("district") and is, therefore, not entitled to attend its schools tuition-free. The appeal must be dismissed.

Petitioner, along with his wife and two daughters, resided at 95 Lexington Street, Westbury, in respondent's district for 13 years. In June 1996, their home was foreclosed and they moved to 29 Rugby Road, Westbury, in a neighboring school district. In January 1997, Robert S. Greco, respondent's Director of Pupil Personnel Services, denied petitioner's request that his daughter Katherine, a junior at respondent's high school, be allowed to continue tuition-free in respondent's schools, based on hardship and temporary displacement. Petitioner appealed that decision to the superintendent and a review was held on February 18, 1997, at which petitioner was given the opportunity to submit evidence in support of his position that his family still resided in the district. The superintendent upheld Mr. Greco's decision.

Petitioner commenced this appeal on March 18, 1997 and requested an interim order. On March 31, 1997, Commissioner Mills issued an interim order directing respondent to admit Katherine to the district's schools tuition-free, pending a determination on the merits.

Petitioner contends that the foreclosure of the house he owned in respondent's district rendered his daughter homeless. He asserts that their absence from the district is temporary and they intend to return to the district as soon as appropriate housing can be found. He further alleges that he had found an apartment within the district, but he could not afford the landlord's security deposit requirement and that he continues to seek affordable, suitable accommodations in the district. Petitioner also argues that Katherine has never attended school outside the district and to remove her at this time would be detrimental to her education and affect her college admission chances.

Respondent asserts that petitioner and his family are not residents of its district. Respondent argues that petitioner has had since June 1996 to locate housing within the district and that a bare assertion of an intention to return to the district does not constitute legal residence. Respondent points out that if petitioner relocates within the district, his daughter will again be eligible for tuition-free education at its high school.

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 only to district residents (Appeal of Garbowski, 36 Ed Dept Rep 54; Appeal of Allen, 35 id. 112).

A homeless child is defined in Commissioner's Regulations as a child who lacks a fixed, regular, and adequate residence, or who has a primary nighttime residence that is a publicly or privately operated shelter designed for temporary living accommodations, or is a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings (8 NYCRR 100.2[x][1]). Petitioner's daughter does not fit into this definition as she is living at 29 Rugby Road, Westbury, with her family and there is no contention that the housing at that address is inadequate. Therefore, petitioner's argument that his daughter's absence from the district is a temporary result of homelessness is without merit.

For the purposes of Education Law "3202, a person can have only one legal residence (Appeal of Elliot, 36 Ed Dept Rep 70; Appeal of Britton, 33 id. 198). Residence is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Elliot, supra; Appeal of Britton, supra; Appeal of Reifler, 31 Ed Dept Rep 235). It is undisputed that petitioner and his family are located outside the district and there is no evidence in the record to support petitioner's assertion that the family's residence outside the district is temporary. There is no evidence in the record to show petitioner has contracted to either build, purchase or lease a residence in respondent's district. Further there is no evidence that petitioner continues to maintain significant community ties within the district other than his daughter's continued attendance in the district's schools. Therefore, I am unable to conclude on the record before me that petitioner is in fact temporarily housed outside the district and is actively taking steps to return there (Appeal of Helms, 36 Ed Dept Rep 95; Appeal of Kenneth R., 30 id. 297). Consequently, respondent's determination that petitioner's daughter may not attend its schools without payment of tuition was not arbitrary, capricious or unreasonable. Therefore, I find no basis on which to substitute my judgment for that of respondent.



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