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Decision No. 15,228

Appeal of GORDON A. BUSHWAY, on behalf of his daughter ERIKA, from action of the Board of Education of the Hoosick Falls Central School District regarding residency.

Decision No. 15,228

(May 12, 2005)

Gunter Dully, Esq., attorney for respondent


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hoosick Falls Central School District ("respondent") that his daughter is not a district resident and is not eligible to attend its schools without payment of tuition. The appeal must be dismissed.

Petitioner resides within the Brunswick Central School District ("Brittonkill") with his daughter, who is a senior. Petitioner's daughter resided with her mother in respondent's district and attended the Hoosick Falls Central School from May 2000 until August 6, 2004.

On September 3, 2004, petitioner informed respondent's superintendent that his daughter moved into his residence in Brittonkill and was advised that respondent's Policy No. 7131 required payment of tuition for non-resident students. Respondent's Policy No. 7131 permits a resident student enrolled in the district who becomes a non-resident to complete that school year without payment of tuition upon consideration of the superintendent and approval of the board. In addition, there had been a period of time during previous years when respondent made another exception for non-resident seniors. However, at respondent's November 18, 2003 meeting, it resolved that the "non-resident senior" exception would cease, effective with the 2004-2005 school year.

By letter dated September 3, 2004, the superintendent informed petitioner that his daughter would be allowed to attend respondent' s schools until the September 21, 2004 meeting of respondent board, at which the final decision on her status would be made. Petitioner spoke with the board president and other board members regarding his daughter's move out of the district, and her preference to finish high school in respondent's district.

On September 15, 2004, the superintendent informed petitioner that respondent was advised by legal counsel not to admit his daughter to Hoosick Falls Central School without payment of tuition.

At its September 21, 2004 meeting, respondent determined that petitioner's daughter was a non-resident, ineligible to attend under Policy No. 7131 without payment of tuition. Petitioner was informed of the board's determination by letter dated September 28, 2004. The letter advised petitioner that unless payment for the first semester tuition on $1,800.50 was made by the end of the instructional day on October 15, 2004, his daughter would be excluded from district schools. This appeal ensued. Petitioner's request for interim relief was denied on October 27, 2004.

Petitioner alleges that he enrolled his daughter in Brittonkill on October 4, 2004, but that she was not attending school because she was not offered the same courses as she was at respondent's schools. Petitioner further contends that respondent did not notify parents, students or staff of its November 18, 2003 decision to discontinue the exception for senior non-resident students, effective with the 2004-2005 school year.

Respondent contends that it has authority to prescribe terms for admission of non-residents and did so with its Policy No. 7131, which requires payment of tuition for admission of non-resident students with one exception for students who become non-resident during a school year. Respondent contends that petitioner's daughter does not qualify for the sole exception to Policy No. 7131.

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 L.H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of D.K and R.S., Jr., 44 id. 23, Decision No. 15,083; Appeal of Tucker, 44 id . 14, Decision No. 15,080). The right to attend a district's schools does not extend to non-residents without the consent of the board of education, as set forth in �3202(2):

(2) Nonresidents of a district, if otherwise competent, may be admitted into the schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board.

In an appeal to the Commissioner of Education, petitioner bears the burden of establishing a clear legal right to relief requested and establishing the facts upon which relief is sought (8 NYCRR �275.10; Appeal of a Student with a Disability, 44 Ed Dept Rep 94, Decision No. 15,108). Petitioner has failed to meet that burden. Petitioner admits residing with his daughter outside respondent's district. Under Education Law �3202(2), a school district may decide to accept non-resident students on terms prescribed by the board of education. Additionally, Education Law ��1709(3) and (13) grant boards of education the power to regulate the admission of pupils, to admit non-resident students and to regulate and establish tuition fees for such non-resident students (Appeal of Volk, 43 Ed Dept Rep 186, Decision No. 14,964).

Respondent's Policy No. 7131, prescribing terms for admission of non-resident students, was adopted on July 21, 1998 and its decision to discontinue an exception for senior non-resident students, effective 2004-2005, was published in the minutes for respondent's November 18, 2003 meeting. The record reflects that petitioner's circumstances were considered by respondent and that its determination is consistent with its policy. Accordingly, I find that respondent's decision was not arbitrary, capricious or an abuse of discretion.