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Decision No. 14,602

Appeal of BERTHA DESIR, on behalf of ASHLEY and ANGELINE DESIR, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 14,602

(July 20, 2001)

Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that her daughters, Ashley and Angeline, are not district residents. The appeal must be dismissed.

At the beginning of the 2000-01 school year, petitioner resided with Ashley and Angeline at 94 Sagamore Street, Freeport, within respondent"s district. However, in mid-December, petitioner moved with her daughters to 194 Woodside Avenue, Freeport, an address outside respondent"s district. By letter dated February 26, 2001, respondent notified petitioner that Ashley and Angeline would not be permitted to attend school in the district after March 5, 2001, because they did not live in respondent"s district. At the March 20, 2001 residency hearing that followed, the district introduced proof that petitioner and her daughters reside at 194 Woodside Avenue, a fact apparently not disputed by petitioner. By letter dated March 22, 2001, respondent"s superintendent of schools notified petitioner that he had determined that her daughters were not district residents and that they would not be permitted to attend the district"s schools after March 30, 2001. This appeal ensued. Petitioner"s request for interim relief was

granted on April 19, 2001.

Petitioner essentially admits that she lives outside the district, but nevertheless requests that her daughters be permitted to attend school in respondent"s district. Respondent contends that the appeal is without merit because petitioner admits that her daughters are not district residents.

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 Harmon, 40 Ed Dept Rep 4, Decision No. 14,401; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Epps, 39 Ed Dept Rep 778, Decision No. 14,377; Appeal of Bogetti, 38 id. 199, Decision No. 14,014). 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). For purposes of the statute, a person can have only one legal residence (Appeal of Monahan, 39 id. 188, Decision No. 14,209; Appeal of Morgan, supra).

Petitioner fully admits that her daughters reside outside respondent"s district. Accordingly, I find that respondent"s determination that Ashley and Angeline are not district residents was not arbitrary, capricious or unreasonable and should not be set aside.