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Decision No. 14,731

Appeal of CAROL SIRLIN, on behalf of her son MATTHEW, from action of the Board of Education of the Valley Stream Central High School District regarding non-resident student admission.


Decision No. 14,731

(May 31, 2002)

Guercio & Guercio, attorneys for respondent, David M. Brodsky, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Valley Stream Central High School District ("respondent") denying her son, Matthew, permission to attend its schools as a non-resident student. The appeal must be dismissed.

During the summer of 2001, petitioner and Matthew moved from respondent's district to a neighboring school district. On August 29, 2001, petitioner appeared before respondent and requested that Matthew be allowed to continue attending school in respondent"s district. Respondent denied petitioner"s request. By letter dated October 5, 2001, petitioner renewed her request. Respondent denied the request by letter dated October 11, 2001, and advised petitioner of her right to appeal.

Petitioner asserts that Matthew should be permitted to attend respondent's schools because it is in his best interest. She contends Matthew was denied due process and that respondent may not refuse to accept non-resident students without a valid and sufficient reason. Respondent asserts that the appeal is untimely, that it properly denied petitioner's request based upon its non-resident policy and that petitioner's son was provided with due process.

I will first address the timeliness issue. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Although petitioner's request to have her son admitted as a non-resident student was verbally denied at the August 29, 2001 meeting, respondent provided petitioner with a written determination on October 11, 2001 stating that she had the right to appeal that decision to the Commissioner. Thus, it appears that respondent did not render a final decision until October 11, 2001. Since this appeal was commenced less than 30 days after respondent's final determination, I decline to dismiss this appeal as untimely (see, Appeal of R.O., 40 Ed Dept Rep 137, Decision No. 14,441; Appeal of Attubato, 38 id. 511, Decision No. 14,082).

The appeal, however, must be dismissed on the merits. A student has a legal right to attend school only in the district in which the student resides (Education Law "3202[1]). Non-resident students may be permitted to attend the schools of a district in which they do not reside but only upon the express consent of the district"s board of education (Appeal of McAteer, 40 Ed Dept Rep 234, Decision No. 14,469; Appeal of Holzer, 37 id. 549, Decision No. 13,924). Respondent's policy permits non-residents to attend its schools under certain limited circumstances inapplicable here. Since petitioner's son is admittedly a non-resident and does not meet the criteria of respondent"s non-resident attendance policy, respondent has the discretion to exclude him.

Furthermore, the record indicates that Matthew was afforded an appropriate degree of due process as a non-resident seeking enrollment. Absent any right to attend respondent"s school district, Matthew need only be afforded minimal due process with respect to the decision to deny his readmission (Appeal of McAteer, supra; Appeal of Holzer, supra). Here, petitioner and Matthew had an opportunity to speak in support of their request at respondent board's meeting on August 29, 2001. Petitioner then appealed to respondent in writing on October 5, 2001 setting forth the reasons for Matthew's requested enrollment. I find, therefore, that Matthew was afforded appropriate due process with respect to respondent"s denial of his request for admission pursuant to its non-resident student admission policy.