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Decision No. 13,827

Appeal of GREGORY H. and MARTA L. MUELLER, on behalf of ETHAN MUELLER, JUSTIN MUELLER, and AURIELLE MUELLER, from action of the Board of Education of the Canajoharie Central School District regarding residency.

Decision No. 13,827

(August 29, 1997)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal respondent's determination that their children, Ethan, Justin, and Aurielle, are not residents of the Canajoharie Central School District ("Canajoharie"). The appeal must be dismissed.

Petitioners have resided with their children at 289 Melick Road, Canajoharie, New York from December 3, 1990 until the present. During this period, petitioners have paid their school taxes to the Sharon Springs Central School District ("Sharon Springs"), but their children have all attended respondent's schools.

In September 1996, a Canajoharie school bus driver notified respondent's superintendent that new children were observed walking from the Canajoharie border and boarding his bus at the same stop used by the Mueller children. An investigation revealed that another family residing on Melick Road who pay taxes to Sharon Springs, were sending their children to Canajoharie schools. These parents informed respondent's superintendent that the Muellers also paid taxes to Sharon Springs but sent their children to Canajoharie. Upon verifying this information through a review of the Canajoharie tax rolls, the superintendent informed both families that their children would not be allowed to attend Canajoharie schools without payment of tuition, beyond the 1996-97 school year. Petitioners were notified on November 5, 1996 of the superintendent's decision and appealed to respondent at its February 27, 1997 meeting. On March 19, 1997, petitioners were notified in writing of respondent's determination that they were not residents of Canajoharie and that their children would no longer be permitted to attend its schools without the payment of tuition.

Petitioners commenced this appeal on April 14, 1997 and requested a stay which was denied, pursuant to 8 NYCRR 276.1. Petitioners contend that the decision made in 1990 by Canajoharie to admit their children to its schools on a tuition-free basis, after consultation with Sharon Springs and with knowledge that petitioners paid taxes to Sharon Springs, is legally binding and should not be reversed. Petitioners contend that it would be traumatic for their children to leave Canajoharie, causing them to lose friends as well as bonds with church, youth, athletic and other community organizations.

Respondent denies there was an agreement reached with Sharon Springs and denies that any legally binding decision was made in 1990, which could be enforced at this time. Respondent contends that it first learned of petitioners' nonresidency status in 1996 and that any mistake in allowing petitioners' children to attend Canajoharie schools can be corrected at this time because it is not obligated to continue to provide petitioners' children with a tuition-free education.

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 to only those students whose parents or legal guardians reside within the district (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446).

The record before me supports respondent's determination that petitioners do not reside in respondent's district and, therefore, their children are not entitled to attend respondent's schools tuition free. By petitioners' own admission, they and their children do not reside within Canajoharie but rather reside in Sharon Springs, where they pay school taxes.

While petitioners allege that their children would lose friends and community ties by leaving Canajoharie schools, that is not a sufficient basis for overturning respondent's decision.

Although respondent mistakenly allowed petitioners' children to attend its schools on a tuition-free basis, petitioners' children have not acquired any legal right to continue attending respondent's schools on a tuition-free basis (Appeal of Marston, 34 Ed Dept Rep 105; Matter of Busch, et al., 24 id. 379). Accordingly, the appeal must be dismissed.