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Decision No. 15,086

Appeal of THOMAS EJBISZ, on behalf of his daughter SARAH, from action of the Board of Education of the Cheektowaga-Sloan Union Free School District regarding residency.


Decision No. 15,086


(July 15, 2004)


Jaeckle Fleischmann & Mugel, LLP, attorneys for respondent, Matthew C. Van Vessem, Esq., of counsel


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

On February 2, 2004, petitioner"s family, including Sarah, moved out of respondent"s district.  By letter dated March 2, 2004, respondent"s superintendent notified petitioner that Sarah could not continue to attend respondent"s schools because she was not a resident.  This appeal ensued.  Petitioner"s request for interim relief was granted on April 20, 2004.

Petitioner concedes that Sarah no longer resides in the district and does not intend to return.  Respondent contends that this concession requires that the appeal be dismissed.

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 Marshall, 43 Ed Dept Rep __, Decision No. 14,911; Appeal of B.O. and D.O., 42 id. 42, Decision No. 14,769; Appeal of Metze, 42 id. 40, Decision No. 14,768). A student"s residence is presumed to b that of his or her parent or legal guardian (Appeal of Steele, 43 Ed Dept Rep "___, Decision No. 15,068; Appeal of DiFalco, 43 id. ___, Decision NO. 14,903).  Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (See, Longwood CSD v. Springs UFSD, 1 NY3d 385; Appeal of Marshall, supra; Appeal of B.O. and D.O., supra). 

Neither Sarah nor her parents are physically present, nor do they intend to reside in respondent"s district. Accordingly, Sarah is not district resident and has no right to attend district schools tuition-free.