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Decision No. 14,780

Appeal of MARCI SHAPIRO, on behalf of her son RICKY DaCOSTA, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 14,780

(August 21, 2002)

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 son, Ricky DaCosta, is not a district resident. The appeal must be dismissed.

Petitioner states that until February 2002, she and her son had resided for the previous eight years on South Ocean Avenue in Freeport, within respondent"s district. However, she also concedes that she and her son currently reside in Uniondale, outside respondent"s district.

Respondent's Central Registry Verification Office began investigating the residency of petitioner's son in February 2002 after the post office returned mail addressed to petitioner. The student registration form, provided by respondent as an exhibit in this proceeding, shows two addresses for petitioner's son, both in respondent's district: an original address on South Ocean Avenue, Freeport, and an updated address on Jay Street, Freeport. On February 6, 2002, the district sent a community worker to the Jay Street residence. The community worker reported that the landlord at that address indicated that petitioner did not live there.

In a letter dated March 15, 2002, respondent's Central Registry Verification Office advised petitioner of its determination that petitioner and her son did not reside within the district and that her son was not eligible to attend respondent's schools and would be excluded from attendance after March 22, 2002. Subsequent to that determination, on the morning of March 22, 2002, between 6:38 A.M. and 8:30 A.M., an investigator hired by respondent conducted surveillance at the Jay Street address. He did not observe petitioner's son leaving that address, although petitioner's son reported to school on time that day. Petitioner appealed the determination of respondent's Central Registry Verification Office to respondent's superintendent.

On April 19, 2002, a residency hearing was conducted before a hearing officer designated by respondent's superintendent. At the hearing, petitioner admitted that she and her son did not reside in respondent's district and that they both resided in Uniondale. Petitioner stated that she continued to send her son to respondent's schools because he wanted to finish the school year there. On April 19, 2002, respondent's superintendent wrote to petitioner advising her that her son was not a district resident and would be excluded from respondent's schools effective April 30, 2002. This appeal ensued. On May 9, 2002, I granted petitioner's request for interim relief and directed respondent to continue to admit petitioner's son to the district's schools pending the determination of this appeal.

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 the 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 L.W., 41 Ed Dept Rep _____, Decision No. 14,717; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Epps, 39 id. 778, Decision No. 14,377). Residence for purposes of "310 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

Petitioner admits that she and her son reside outside respondent's district in Uniondale. Because petitioner and her son are not district residents, petitioner's son is not entitled to attend respondent's schools.