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Decision No. 13,828

Appeal of BERNARD C. and CARRIE GINGRICH, on behalf of their daughter, MARYBETH, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 13,828

(August 29, 1997)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal respondent's determination that their daughter, Marybeth Gingrich, is not a resident of the Pine Bush Central School District. The appeal must be dismissed.

Petitioners and their children reside at R.R. 1, Seaman Road, Box 13, Circleville, New York on a parcel of land listed as "lot #45" in Section 5, Block 1, of the Orange County Tax Assessor's Map. Petitioners' daughter attends the Circleville Elementary School in the Pine Bush Central School District ("Pine Bush") where she was first admitted in August 1995. Petitioners pay no taxes to support the Pine Bush Central School District schools. Instead, they pay taxes to the City of Middletown.

In November 1996, the elementary school principal, in verifying residency records, discovered that petitioners' property was in the Enlarged City School District of the City of Middletown ("Middletown"). She informed petitioners by letter dated November 7, 1996 that their daughter was not entitled to attend the Pine Bush schools and would not be permitted to attend after November 18, 1996. A hearing was held on December 19, 1996 and a decision issued December 20, 1996 by respondent board's designee, finding that petitioners' daughter is not a resident of Pine Bush and would not be permitted to attend its schools after January 31, 1997, the last day of the first semester of the 1996/97 school year.

Petitioners commenced their appeal on January 17, 1997 and requested a stay pursuant to 8 NYCRR 276.1. On January 30, 1997, the Acting Commissioner of Education issued an order requiring respondent to admit petitioners' daughter to its schools tuition free, pending a final decision of this appeal.

Petitioners contend that enforcement of respondent's determination against their daughter, who is of racially mixed descent, would be racially discriminatory because Caucasian children in the identical situation, i.e., neighbor children living at "lot 46" on Seaman Road, attend and have graduated from the Pine Bush schools without challenge. Petitioners also contend that removing their daughter from Pine Bush schools would be traumatic and cause her physical hardship because she would be required to ride a bus to the nearest Middletown school, which is a greater distance from their home.

Respondent admits making a mistake when it enrolled petitioners' daughter, but contends that since petitioners are not residents, they are not entitled to send their child to its schools and should be required to pay tuition for the period of her attendance.

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 daughter is not entitled to attend respondent's schools tuition free. The Orange County Tax Assessor's Map clearly shows that petitioners' residence is located entirely within Middletown and petitioners admit to paying school taxes to Middletown.

Petitioners argue that respondent selectively enforces its residency policy in a racially discriminatory manner because their neighbor, residing at lot #46 on Seaman Road, was treated preferentially. Subsequent to petitioners' appeal, however, respondent determined that the neighbor at lot #46 is not a resident and would no longer be permitted to send his children to respondent's schools tuition free. Consequently, I find that respondent's determination is not racially discriminatory.

Petitioners also argue that denying their daughter admission to respondent's schools would cause a hardship due to the longer bus ride to Middletown schools but this is not a sufficient basis for overturning respondent's decision.

While respondent's mistake, caused by no deception or fault on petitioners' part, that permitted petitioners' daughter to attend tuition free until January 31, 1997 is not reversible for that period, petitioners' daughter has not acquired any legal right to continue attending respondent's schools on a tuition-free basis (Appeal of Marston, 34 Ed Dept Rep 105). Therefore, the appeal must be dismissed.