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Decision No. 14,465

Appeal of MELODY and JEFFREY GROSS, on behalf of ANDREW GROSS, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding residency.

Decision No. 14,465

(September 14, 2000)

Guercio & Guercio, attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") that their son, Andrew, is not a resident of the district. The appeal must be dismissed.

On January 28, 2000, petitioners registered their son, Andrew, at respondent's John F. Kennedy High school, with papers indicating that Andrew was residing within respondent’s district at an address in Plainview, New York. Petitioners also submitted a notarized letter signed by Mrs. Gross' cousin, Jay Katz, stating that Mrs. Gross and her son were residing with his family at their home in Plainview, New York. Petitioners also submitted a copy of Mr. Katz’s cable television bill, indicating the Plainview address. After petitioners' son was admitted to school, Mr. Katz's children informed the district's guidance counselor, Arlene Rubenstein, that neither Mrs. Gross nor her son were residing with them in their Plainview home. Instead, Ms. Rubenstein was informed that Andrew was residing in Massapequa with Mr. Gross and that Andrew drove to respondent’s high school. Respondent hired a private investigation firm to ascertain Andrew’s residence. The private investigator discovered that Andrew had been issued a driver's license which listed his residence in Massapequa, outside respondent’s district. The investigator also discovered that Andrew owned a car registered at this Massapequa address. Additionally, on March 15, 2000, the investigator observed Andrew’s car was parked outside the Massapequa residence at 6:00 a.m. and that, at 7:15 a.m., Andrew exited the Massapequa residence and drove to respondent’s high school.

On April 10, 2000, the district’s Director of Pupil Personnel Services, Jane Albert, mailed petitioners a letter at the Plainview address notifying them that a hearing had been scheduled for April 13, 2000 to consider Andrew’s residency status. Petitioners attended the hearing. Based on the investigator's report, Ms. Albert determined that Andrew was not a district resident. Ms. Albert informed petitioners of her determination by letter dated April 14, 2000, and further informed petitioners that Andrew’s last day of school was designated as April 18, 2000. Ms. Albert also provided petitioners with the opportunity for Andrew to attend school in the district upon the payment of tuition in the amount of $6,717 for the period of February 2, 2000 through June 23, 2000.

On April 24, 2000, petitioners sent a letter to respondent's superintendent, Dr. Anthony Cavanna, seeking an extension of the April 18, 2000 deadline, with the Massapequa address listed as their return address. Dr. Cavanna agreed to extend the deadline until May 8, 2000. However, the high school principal was unaware of the extension and on May 2, 2000, Andrew was detained from classes until 9:00 a.m. when the principal was informed of the extension.

On May 8, 2000 petitioners sent the district a tuition payment of $2,686.80 and Andrew was allowed to complete the school year at respondent’s high school.

Petitioners commenced this appeal on May 5, 2000, seeking a determination that Andrew is entitled to attend respondent’s high school for the balance of the 1999-2000 school year and for a determination of the amount of tuition owed to the district. On July 17, 2000 petitioners’ request for interim relief was denied.

The appeal 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 students whose parents or legal guardians reside within the district (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). For the purposes of Education Law "3202(1), residence is established based upon two factors: physical presence as an inhabitant of the district and the intent to reside in the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016).

Petitioners do not endeavor to prove that they reside within the district. Indeed, they fully admit that they reside outside respondent’s district. Petitioners' letter to respondent lists their return address in Massapequa, outside respondent’s district. Additionally, the student’s driver’s license and car registration as well as the investigator's surveillance all indicate that Andrew resides in Massapequa, outside respondent’s district. Accordingly, I find that respondent’s determination was not arbitrary, capricious or unreasonable and should not be set aside.

Consistent with Education Law "3202, non-resident tuition must be computed in accordance with Part 174 of the Commissioner's Regulations. The petition does not make any assertions challenging the computation method used or even the amount of tuition charged by the district, but instead requests that I compute the tuition due. Without evidence of some impropriety in respondent’s computation of the tuition due, petitioners have failed to even demonstrate that they are aggrieved. In effect, petitioners are merely seeking an advisory opinion concerning the calculation of tuition. The Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937.

In light of my determination, there is no need to address the parties’ remaining contentions.