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Decision No. 15,256

Appeal of PATSY DEL SONNO, on behalf of her children ANTHONY DEL SONNO and JEANA MOTLER, from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding denial of admission on the basis of residency.

Decision No. 15,256

(July 28, 2005)

Parshall & West, attorneys for respondent, Michael A. West, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cobleskill-Richmondville Central School District ("respondent") denying her children, Anthony Del Sonno and Jeana Motler, admission to respondent's schools because they are not district residents. The appeal must be dismissed.

Petitioner and her children reside on Rossman Hill Road, Summit, within the Middleburgh Central School District ("Middleburgh"). Her daughter began attending respondent's schools in first grade and is now a tenth grader. Her son began attending respondent's schools in kindergarten and is now a third grader.

In November 2003, the family moved to Tennessee for six months, then returned to their Summit home. By letter dated July 5, 2004, petitioner requested admission of her children to the district's schools. By letter dated July 27, 2004, respondent's superintendent issued a determination that petitioner's children were not district residents because their home is not located in respondent's district. This appeal ensued. Petitioner's request for interim relief was denied on September 8, 2004.

Petitioner contends that when she purchased her home in 1995, there was a "handshake" and "agreement" with respondent's district that her children could attend respondent's schools. She maintains that her family's six-month absence from the district in 2003-2004 did not end that agreement. She also contends that there are a number of other families with homes in the Middleburgh district whose children are allowed to attend school in respondent's district.

Respondent claims that there was never an agreement to allow petitioner's children to attend its schools. It alleges that there was a time when Middleburgh was unable to transport some children by bus and respondent allowed those children to attend its schools. However, respondent contends this is no longer the case. Respondent admits that several children from Middleburgh do attend its schools, but it is trying to end this practice. Respondent also asserts that petitioner has always paid school property taxes to Middleburgh.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

The right to attend a district's schools does not extend to nonresidents without the express consent of the board of education:

Nonresidents of a district, if otherwise competent, may be admitted into the school or 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 (Education Law �3202[2]).

Thus, districts have the discretion to accept or refuse to admit individual nonresident students (Appeal of Holzer, 37 Ed Dept Rep 549, Decision No. 13,924; Matter of Hetko, 16 id. 52, Decision No. 9297).

Petitioner's children are admittedly not residents of the district. Therefore, respondent has the discretion to exclude petitioner's children. Accordingly, I will not disturb respondent's determination.