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Decision No. 15,416

Appeal of L.V., on behalf of her daughter K.M., from action of the Board of Education of the Gilboa-Conesville Central School District regarding nonresident student admission.


Decision No. 15,416


(June 16, 2006)


Napierski, Vandenburgh & Napierski L.L.P., attorneys for petitioner, Shawn T. Nash, Esq., of counsel


Hogan, Sarzynski, Lynch, Surowka & DeWind L.L.P., attorneys for respondent, Wendy K. DeWind, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Gilboa-Conesville Central School District (“respondent”) denying her daughter, K.M., permission to attend its schools as a nonresident student.  The appeal must be dismissed.

Petitioner and her daughter reside outside of respondent’s school district.  Pursuant to Education Law �3202(2), respondent adopted a policy for the admission of nonresident students without the payment of tuition.  Under respondent’s policy, one of the guidelines to be applied in determining whether a nonresident student may be admitted is whether “the admission of such nonresident student is and continues during the enrollment period to be in the best interests of the district.”  Petitioner’s daughter had been attending respondent’s schools as a nonresident student since September 2002.

By letter dated November 1, 2005, respondent’s superintendent notified petitioner that he was considering terminating K.M.’s status in the district due to an incident in which K.M. distributed drugs to other students.  The letter also notified petitioner of her right to an informal conference with the superintendent.  On November 2, 2005, the superintendent verbally informed petitioner of the contents of the letter, which petitioner allowed to serve as the informal conference.  According to a letter to petitioner of the same date, the superintendent memorialized that conversation, including petitioner’s statements that K.M. confessed to stealing and distributing drugs, that petitioner and her husband had notified the Sheriff’s Department and that K.M. would be on probation.  By letter dated November 7, 2005, the superintendent notified petitioner that K.M.’s status as a nonresident student would be terminated because her attendance was not in the best interests of the school.

In response to this letter, it appears that petitioner and her daughter made an attempt to establish residency within respondent’s school district by renting a room from a resident of the district.  On November 9, 2005, petitioner submitted a letter to the district as evidence of residency.  Respondent then allowed K.M. to continue to attend its schools but commenced disciplinary charges against her.  Before a hearing was held, however, petitioner admitted to respondent’s principal that K.M. had returned to the family home outside of the school district.  Based on this information, the district cancelled the scheduled disciplinary hearing and sent a second notice of nonresidency dated November 17, 2005 to petitioner and K.M.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 29, 2005.

Petitioner claims that respondent’s notice of nonresidence did not comply with the requirements of �100.2(y) of the Commissioner’s regulations.  Petitioner alleges that K.M. was denied due process by being suspended from school and by being excluded from the school as a nonresident.  Petitioner also contends that respondent should have provided K.M. with alternative instruction.  Petitioner requests that I revoke K.M.’s “suspension” and that she be allowed to continue her education as a nonresident student in respondent’s school district.

Respondent contends that the appeal is untimely in part.  Respondent also argues that K.M. was not suspended from school and it was therefore not obligated to provide her with alternative instruction.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent claims that because petitioner’s appeal was served on December 15, 2005, any acts or decisions made before November 15, 2005 should not be considered as part of this appeal.  I disagree.  The final letter terminating K.M.’s nonresident student status was dated November 17, 2005, and, to the extent that petitioner’s claims arise out of the decision to terminate K.M.’s nonresident student status, petitioner’s challenge is timely. 

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).  The record indicates, and petitioner does not dispute, that the address at which she and her daughter reside is not located in respondent’s district.  Accordingly, petitioner and her daughter are not residents of respondent’s district and K.M. is not entitled to attend respondent’s schools as a district resident. 

Petitioner argues that K.M. was improperly suspended from school without due process.  The appeal record, however, is devoid of any evidence that respondent imposed a disciplinary penalty of suspension upon petitioner’s daughter.  Rather, respondent exercised its discretion pursuant to Education Law �3202(2), and its policy adopted thereunder, to terminate K.M.’s status as a nonresident student.  Thus, the due process requirements relating to student suspensions (Education Law �3214) are not applicable here, nor is the requirement to provide alternative instruction.

The record also indicates that, to the extent petitioner’s daughter was entitled to any due process prior to respondent’s termination of her nonresident student status, such due process was afforded to her.  A student has a legal right to attend school only in the district in which the student resides (Education Law �3202[1]).  Nonresident students may be permitted to attend the schools of a district in which they do not reside but only upon the express consent of the district’s board of education (see Education Law �3202[2]; Appeal of Holzer, 37 Ed Dept Rep 549, Decision No. 13,924; Appeal of McAteer, 40 id. 234, Decision No. 14,469).

The decision to permit the attendance of nonresident students is discretionary with the board of education.  Absent any right to attend respondent’s school district, petitioner’s daughter need only be afforded minimal due process with respect to respondent’s decision to terminate her nonresident student status (seeAppeal of McAteer, 40 Ed Dept Rep 234, Decision No. 14,469).   Here, petitioner had an opportunity to speak with respondent’s superintendent in a telephone conversation on November 2, 2005 before he decided to terminate K.M.’s nonresident student status. Respondent considered petitioner’s concerns as evidenced by the superintendent’s November 2, 2005 letter iterating the discussion.  The superintendent’s decision was made and reflected in a letter to petitioner dated November 7, 2005.  I find, therefore, that petitioner’s daughter was afforded due process with respect to respondent’s termination of her nonresident student status.

Petitioner also claims that respondent’s notice of nonresidence did not comply with the requirements of �100.2(y) of the Commissioner’s regulations.  While the November 7, 2005 letter from respondent to petitioner did not inform petitioner of the right to appeal in accordance with �310 of the Education Law, the subsequent letter of November 17, 2005 did.  I have already ruled that the 30-day appeal time did not begin to run until the November 17, 2005 notice of termination of nonresidency.  Moreover, at the time of the November 7, 2005 letter, petitioner had never contended that K.M. was a district resident.  That letter was merely terminating her status as a nonresident student in respondent’s schools.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Because petitioner has failed to establish the facts or legal basis on which to conclude that her daughter’s rights have been violated, I find no basis to overturn respondent’s determination (seeAppeal of McAteer, 40 Ed Dept Rep 234, Decision No. 14,469; Appeal of Shabazz, 38 id. 481, Decision No. 14,076).