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Decision No. 14,920

Appeal of ROOSEVELT and PATRICIA GUERRE, on behalf of their children DEVIN and JUSTIN, from action of the Board of Education of the Valley Stream Union Free School District Thirty regarding residency.



(August 12, 2003)


Minerva & D"Agostino, P.C., attorneys for respondent, Doreen Levinson, Esq., of counsel


CATE, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Valley Stream Union Free School District Thirty ("respondent") that their children, Devin and Justin, are not district residents.  The appeal must be dismissed.

There is no dispute that petitioners reside on Irving Street, in Valley Stream, with their children.  Respondent concedes that it admitted Devin and Justin to its Shaw Avenue School ("Shaw") in July 2001 because respondent"s "Street and House Number Directory" listed Irving Street as within the district.  In August 2002, respondent reviewed its residency map, which revealed that Irving Street is actually divided between respondent"s district and the Elmont Union Free School District ("Elmont").  Irving Street residences on the south side of Sobro Avenue are within respondent"s district, whereas residences on the north side of Sobro Avenue, including petitioners" home, are within the Elmont district. 

On August 17, 2002, Shaw"s principal met with petitioners to advise them that respondent had erred in admitting their children and afforded them an opportunity to submit information concerning their children"s right to attend Shaw.  Petitioners also met with respondent and the superintendent that month.  In November 2002, respondent"s Director of Facilities and Operations visited petitioners" Irving Street residence and confirmed that their home is eight parcels north of Sobro Avenue and is thus within the Elmont district.  On December 6, 2002, the superintendent and Shaw"s principal met with petitioners and hand-delivered a letter containing the superintendent"s determination that Devin and Justin are not district residents.  Petitioners commenced this appeal on January 13, 2003.  

Petitioners contend that they initially attempted to enroll their children in the Alden Terrence School within Elmont, but were informed that Shaw was their zoned school.  They assert that respondent admitted the children in September 2001 and they have been attending Shaw since then.  Petitioners request that Devin and Justin be allowed to remain at Shaw, or alternatively, that they not be transferred until the end of the school year.

Respondent asserts that the appeal is untimely and that its determination that the children reside outside the district is proper. 

To the extent petitioners request that their children not be transferred from Shaw until the end of the school year, the appeal is moot because the school year has ended (Appeal of Bryan, 40 Ed Dept Rep 152, Decision No. 14,445). 

The appeal must also be dismissed as untimely.  An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action or decision complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Recore, 42 Ed Dept Rep ___, Decision No. 14,856; Appeal of Phillips, 40 id. 241, Decision No. 14,471).  Petitioners received notification of the superintendent"s determination on December 6, 2002, but did not initiate this appeal until January 13, 2003, more than thirty days later, and failed to offer any excuse for the delay. 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 Cuesta, 42 Ed Dept Rep ___, Decision No. 14,755; Appeal of L.W., 41 id. 372, Decision No. 14,717).  A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of L.W., supra; Appeal of Donohue, 41 Ed Dept Rep 26, Decision No. 14,601).  A mistake by a school district in allowing a nonresident student to attend its schools tuition-free does not vest any legal right in the student to continued attendance on a tuition-free basis (Appeal of C.B., 39 Ed Dept Rep 760, Decision No. 14,372; Appeal of Lascala, 38 id. 16, Decision No. 13,974; Appeal of Marston, 34 id. 105, Decision No. 13,247).

On August 26, 2002, petitioners met with respondent and presented copies of their 2001 general tax levy and 2001-2002 school tax bill, both of which clearly show their address.  Respondent submits a map showing that petitioners" address is located to the north of Sobro Avenue and is thus within the Elmont district.  In addition, the school tax bill indicates that taxes are submitted to the "Elmont U.F.S.D." This evidence supports respondent"s determination that petitioners do not reside within its district and the children are not entitled to attend respondent"s schools.  Petitioners submit no evidence to the contrary.  Although petitioners express concern that Devin may have some difficulty in adjusting to a new school, that is not a sufficient legal basis to overturn respondent"s rational and reasonable determination (Appeal of Marston, supra).