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Decision No. 14,586

Appeal of CARMEN J. AROCHO and ANGEL SANTANA, on behalf of their daughter SACHA K. RIOS, from action of the Board of Education of the West Irondequoit Central School District regarding residency.

Decision No. 14,586

(June 19, 2001)

Lynda M. VanCoske, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the West Irondequoit Central School District ("respondent") that their daughter, Sacha K. Rios, is not a district resident. The appeal must be dismissed.

Petitioners resided in respondent"s district from January 2000 until December 2000, at which time they relocated to 214 Versailles Road, Rochester, New York, within the Rochester City School District. Although petitioners moved to another district, Sacha continued to attend school in respondent"s district. On February 28, 2001, petitioners met with Edward Paulsen, Director of Elementary Education and Special Programs, regarding Sacha"s residency and admitted that they resided outside of respondent"s district. By letter dated March 1, 2001, Mr. Paulsen advised petitioners that Sacha would be removed from the attendance rolls in respondent"s schools effective March 19, 2001 because she was not a district resident. This appeal ensued. Petitioners" request for interim relief was denied on March 30, 2001.

Petitioners request that Sacha be allowed to remain in respondent"s schools until June 30, 2001 to enable her to complete the school year and take her final exams. Respondent contends that the decision to exclude Sacha from attendance was neither arbitrary nor capricious because it is undisputed that Sacha is not a district resident. Additionally, respondent requests that petitioners be required to pay tuition for their daughter"s attendance in the district for the period between December 2000 and March 19, 2001.

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 Pierre, 40 Ed Dept Rep ___, Decision No. 14,551; Appeal of Lapidus, 40 id. ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377). Residence is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside within the district (Appeal of Silvestro, 40 Ed Dept Rep ___, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016). Additionally, a child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Cortes, 37 id. 114, Decision No. 13,818).

Petitioners admit that they reside outside of respondent"s district with their daughter. Consequently, I am compelled to uphold respondent"s determination that Sacha is not a district resident and is ineligible to attend respondent"s schools (Appeal of Ryder, 40 Ed Dept Rep __, Decision No. 14,562).

With respect to respondent"s request that petitioners pay tuition for the period of time Sacha attended its schools while not a district resident, the Commissioner of Education does not have any statutory authority to make a finding awarding student tuition (Appeal of Marino, 40 Ed Dept Rep ___, Decision No. 14,404; Application ofPierrelus, 37 id. 502, Decision No. 13,913). Respondent may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Bd. of Educ. ofLawrence Union Free School District v. Gaffney, 233 AD2d 357; Application of Pierrelus, supra).