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Decision No. 14,135

Appeal of ROBIN A. WATKINS, on behalf of JADE WATKINS, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 14,135

(May 26, 1999)

McGuire, Kehl & Nealon, LLP, attorneys for respondent, Terri E. Simon, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that her daughter is not a resident of the district. The appeal must be dismissed.

Petitioner resides at 17 Norris Street, Garnerville, outside respondent’s district. Petitioner formerly resided within respondent’s district, but moved to the Garnerville address sometime prior to January 1999. By letter dated January 19, 1999, respondent’s Director of Pupil Services advised petitioner that she had received information that petitioner did not reside within the district and offered her the opportunity to present documentation to prove her residency within the district. On January 20, 1999, petitioner called respondent’s Director of Pupil Services and informed her that she was recently divorced from her husband and that she and her daughter had moved to a residence located outside respondent's district. Out of concern for her daughter’s mental and emotional well-being, petitioner asked respondent to allow her daughter to complete the school year in respondent’s district. To afford petitioner time to make arrangements to enroll petitioner’s daughter in another school, respondent agreed to allow the child to remain in attendance until February 12, 1999, the last day before winter vacation. By letter dated January 21, 1999, respondent’s Director of Pupil Services informed petitioner that her daughter would be excluded from respondent’s schools as of February 12, 1999. This appeal ensued. On February 9, 1999, petitioner’s request for interim relief was denied.

Petitioner admits that she and her daughter no longer reside within respondent’s district, but requests that I issue an order permitting her daughter to continue in respondent’s schools until the conclusion of the 1998-1999 school year.

Respondent contends that the appeal should be dismissed because petitioner is not a resident of the district. Respondent asserts that it does not accept tuition-paying nonresident students in these circumstances.

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 students whose parents or legal guardians reside within the district (Appeal of a Student with a Disability, 38 Ed Dept Rep 91; Appeal of Allen, 35 id. 112; Appeal of Brutcher, 33 id. 56). For purposes of Education Law "3202, a person can have only one legal residence (Appeal of Elliott, 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 Elliott, supra; Appeal of Reifler, 31 Ed Dept Rep 235).

To demonstrate that an individual has selected a particular location as his or her residence, that individual must both actually reside at that location and intend that such location be his or her permanent residence. Petitioner admits that she and her daughter are actually living outside the district. While I am sympathetic to petitioner’s concern for her daughter’s welfare, respondent’s determination that petitioner’s daughter may not attend its schools was not arbitrary, capricious or unreasonable and will not be set aside.