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Decision No. 14,931

Appeal of LAWRENCE SOBEL, on behalf of his daughter ASHLEY, from action of the Board of Education of the Center Moriches Union Free School District regarding residency.


Decision No. 14,931


(August 19, 2003)


Saladino & Hartill, LLP, attorneys for petitioner, James A. Saladino, Esq., of counsel


Erlich, Frazer & Feldman, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Center Moriches Union Free School District ("respondent") that his daughter, Ashley, is not a district resident.  The appeal must be dismissed.

Petitioner, his wife and two children reside in Shirley, New York, outside respondent"s district.  Petitioner also owns property on Marion Court, Center Moriches, within respondent"s district.

In August 2002, petitioner enrolled Ashley in respondent"s Clayton Huey Elementary School using the Marion Court address.  In October 2002, respondent"s officials conducted a routine investigation and determined that no dwelling existed at the Marion Court address.  By letter dated December 30, 2002, respondent"s Assistant Superintendent for Curriculum, Instruction Assessment & Staff Development ("assistant superintendent") informed petitioner that she had determined that Ashley was not a district resident and would be excluded from school on January 13, 2002.

On January 15, 2002, the school principal and assistant superintendent met with petitioner and his attorney to discuss Ashley"s residency.  At this meeting petitioner"s attorney requested that petitioner be permitted to pay tuition and keep Ashley in school.  The assistant superintendent informed petitioner that she would discuss the proposal with respondent"s superintendent.    At this time, petitioner and his attorney asked that if the proposal to pay tuition were rejected, they be permitted to petition respondent before Ashley was excluded from school.

By letter dated January 21, 2002, the assistant superintendent notified petitioner that Ashley was not eligible to attend respondent"s schools because she was not a resident and that she would be excluded on January 31, 2003.  The assistant superintendent also notified petitioner that he could appeal her determination to the Commissioner.  On January 23, 2003, petitioner"s attorney contacted respondent"s superintendent, seeking permission to petition respondent.  The superintendent stated that he had already discussed the matter with respondent and that respondent would not consider it.  Petitioner commenced this appeal.  Petitioner"s request for interim relief was denied on February 6, 2003.

Petitioner asserts that he enrolled Ashley in respondent"s district because he expected to move there before the end of the school year and that the principal acquiesced in her attendance.  Petitioner further alleges that he was denied due process of law when the superintendent would not allow him to appeal to respondent.  Petitioner requests that I remand the matter to respondent for consideration of his request to pay nonresident tuition.

Respondent asserts that it acted in a lawful manner in excluding Ashley from its elementary school.  Respondent states that petitioner actually resides outside the district.

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 Burnett, 42 Ed Dept Rep ___, Decision No. 14,825; Appeal of J.M., 42 id. ___, Decision No. 14,783).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence and an intent to reside in the district (Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parent or legal guardians (Appeal of Washington, 42 Ed Dept Rep ___, Decision No. 14,820; Appeal of Gimenez, 42 id. ___, Decision No. 14,812). Further, pending home construction does not, in and of itself, establish residency (See, Appeal of Embler and Schwerbel, 40 Ed Dept Rep 17, Decision No. 14,406; Appeal of Duhaney, 38 id. 94, Decision No. 13,991).

     Based on the record before me, I find that respondent"s determination that Ashley is not a district resident is neither arbitrary nor capricious.  Petitioner admits that he and Ashley live outside the district while waiting for their home to be constructed on property within the district.  Petitioner and Ashley are not physically present in the district, and therefore, cannot be district residents.  If, at some further date, petitioner and his family do relocate to an address within respondent"s district, petitioner may reapply for Ashley"s admission at that time.

     Finally, I note that petitioner made several requests to appeal to respondent regarding his residence and/or for permission to pay nonresident tuition for Ashley.  Section 100.2(y) of the Commissioner"s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  Among other things, this provision empowers the board or its designee [emphasis supplied] to determine whether a child is entitled to attend the schools of the district.  In this case, respondent apparently had designated the assistant superintendent as its designee for residency determinations and she had advised petitioner that he could appeal her decision to the Commissioner.  Accordingly, respondent was under no obligation to hear petitioner"s appeal.