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Decision No. 14,963

Appeal of TAMMY THOMAS, on behalf of her children JESSICA, ERIC, EMILY and JOSHUA, from action of the Board of Education of the Lake George Central School District regarding residency.



(September 26, 2003)


Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

 MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Lake George Central School District ("respondent") that her children are not district residents.  The appeal must be dismissed.

Petitioner and her children reside in Queensbury, New York, outside respondent"s district.  Petitioner also owns property within respondent"s district.

During the 2002-2003 school year, petitioner"s daughter Jessica attended the second grade in respondent"s district.  At that time, it appears petitioner"s other children were not yet of school age.

In March 2003, respondent notified petitioner"s husband that the family residence was located outside respondent"s district.  Respondent also informed petitioner"s husband that Jessica would be permitted to complete the 2002-2003 school year in respondent"s district, and that if he wanted his children to attend school in respondent"s district in future years, he would either have to move into respondent"s district or pay the non-resident tuition rate.  By letter dated June 23, 2003, respondent"s superintendent informed petitioner"s husband that he had determined that the children were not district residents and were not entitled to attend school within respondent"s district.  This appeal ensued.  Petitioner"s request for interim relief was denied on July 23, 2003.

Petitioner asserts that she was not aware that her home was not located within respondent"s district.   Petitioner further submits that her children have established friendships within respondent"s district and that her family plans on moving into respondent"s district in the future. 

Respondent asserts that the appeal must be dismissed because petitioner and her children reside outside respondent"s district.  Respondent has submitted a tax map obtained through the Town of Queensbury that indicates that petitioner"s residence is located outside respondent"s 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 Sobel, 43 Ed Dept Rep ___, Decision No. 14,931; Appeal of Burnett, 42 id. ___, 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 Sobel, supra; Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Washington, 42 Ed Dept Rep ____, Decision No. 14,820; Appeal of Gimenez, 42 id. ____, Decision No. 14,812). 

     Based on the record before me, I find that respondent"s determination that petitioner"s children are not district residents is neither arbitrary nor capricious.  Petitioner admits that she and her children reside at the address that the tax map demonstrates is outside respondent"s district.  Petitioner and her children are not physically present in respondent"s district, and therefore, cannot be district residents.  Petitioner"s allegation that she is seeking a residence within the district does not establish residency.  If, at some further date, petitioner and her family relocate to an address within respondent"s district, petitioner may reapply for her children"s admission at that time.