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Decision No. 14,429

Appeal of EDGAR JAMES, JR., on behalf of EDGAR JAMES, III, from action of the Board of Education of the City School District of the City of New York regarding payment of non-resident tuition.

Decision No. 14,429

(August 4, 2000)

Carolyn Scott, Esq., attorney for petitioner

Michael D. Hess, Corporation Counsel, attorney for respondent, Lisa A. Weiss, Assistant Corporation Counsel, of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the City School District of the City of New York ("respondent") that his son is not a district resident and is not entitled to attend Midwood High School in Brooklyn without the payment of non-resident tuition. The appeal must be dismissed.

Petitioner concedes at the outset that he and his son are residents of West Hempstead, which is outside respondent's district. In April 1998, petitioner's son applied for enrollment in the medical science program at Midwood High School ("Midwood") in respondent’s district. For reasons that are not apparent from the record, petitioner's son was recorded as a resident of Brooklyn and thus a resident of respondent's district. He was accepted into this very competitive school program, and attended Midwood for the 1998-99 and 1999-2000 school years.

On or about March 21, 2000, the principal at Midwood became aware that petitioner and his son were not residents of respondent’s district. He sent a letter to petitioner, noting that petitioner and his son were residents of Nassau County, and forwarded non-resident application forms for the 1998-99 and 1999-2000 school years. The principal advised petitioner that, unless completed non-resident application forms and applicable tuition payments for both school years were received by May 15, 2000, petitioner's son would be discharged from Midwood effective May 16, 2000.

This appeal ensued. I issued an interim order on May 26, 2000, directing respondent to admit petitioner's son to its schools tuition-free until the end of the 1999-2000 school year.

Petitioner contends that, when his son was first accepted at Midwood in 1998, he inquired about tuition for non-residents and was told that there was no tuition requirement for non-resident students admitted to Midwood's medical science program. Based upon this assurance, he enrolled his son at Midwood, foregoing a scholarship to attend Bishop Loughlin Memorial High School in Brooklyn. He never received any notification of a requirement to pay tuition until the principal's March 21, 2000 letter. Petitioner asserts that respondent's actions violate Education Law "3202 and "A-150 of the Chancellor's Regulations, and seeks an order directing respondent to allow his son to attend Midwood through 12th grade without the payment of any tuition.

Respondent admits that it was not aware that petitioner and his son were non-residents until March 2000, but denies that petitioner was told in 1998 that non-resident students would not be charged tuition to attend the Midwood program. Respondent asserts that as a matter of law, pursuant to Education Law "3202 and Chancellor's Regulation "A-150, a non-resident is not entitled to attend respondent's public schools without the payment of tuition. Respondent has offered, and continues to offer, to waive tuition for the 1998-99 and 1999-2000 school years, but will require the payment of tuition for ensuing school years if petitioner's son desires to continue his enrollment at Midwood.

The petition must be dismissed. 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 those children whose parents or legal guardians reside within the district (Appeal of Felenczak, 39 Ed Dept Rep 125, Decision No. 14,191; Appeal of Duhaney, 38 id. 94, Decision No. 13,991).

In the instant appeal, petitioner concedes that he is not a resident. He argues, however, that because he relied to his detriment on an inaccurate statement made by respondent's employee, respondent should be equitably estopped from requiring his son to pay tuition, notwithstanding the fact that he is not a district resident.

The record does not reflect the identity or position of the individual who allegedly made the misrepresentation or what was actually said by such individual, and respondent denies that such representation was made. In any event, even if an employee of respondent did provide this erroneous information to petitioner, the courts have held that, except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Associates v. City of New York, 71 NY2d 274 [1988]; Hamptons Hosp. v. Moore, 52 NY2d 88 [1981]; see Appeal of Ibrahim, 39 Ed Dept Rep 155, Decision No. 14,200; Appeal of Andela, 38 id. 388, Decision No. 14,062; Appeal of Holzer, 37 id. 549, Decision No. 13,924). Therefore, any such misrepresentation would not serve to estop respondent from requiring payment of non-resident tuition from petitioner as a condition of allowing
petitioner's son to continue his enrollment at Midwood.