Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Herricks Union Free School District regarding payment of tuition.

 

Decision No. 15,427

 

(July 7, 2006)

 

Hopkins & Kopilow, attorneys for petitioner, Nicholas F. Miraglia, Esq., of counsel

 

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Herricks Union Free School District (“respondent”) to charge him tuition for his three children, two of whom are students with disabilities.  The appeal must be sustained in part.

Prior to the 2004-2005 school year, petitioner, his wife, and three children resided in the Valley Stream Central High School District (“Valley Stream”).  In July 2004, petitioner purchased a house within respondent’s district, and enrolled two of his three children in respondent’s schools.  The two children began attending respondent’s schools in September 2004, and the third child enrolled in April 2005.

Petitioner originally planned to renovate the in-district house by October 2004.  However, during renovation, a structural defect was discovered, which made it necessary to demolish and rebuild.  Due, in part, to weather-related delays, the new house was not completed until the summer of 2005.  During this time, petitioner and his family continued to reside in Valley Stream, while the children attended respondent’s schools.

During the summer of 2005, one of petitioner’s children attended summer school in Valley Stream as a resident.  Based on this information, by letter dated July 11, 2005, respondent’s superintendent informed petitioner that his children would be excluded from respondent’s schools as non-residents.  By letter dated July 27, 2005, the superintendent demanded tuition for the 2004-2005 school year in the amount of $54,183.  Petitioner subsequently moved into the house in respondent’s district in August 2005.  This appeal ensued.

Petitioner contends that the tuition assessment is unfair as petitioner intended to reside in the district, but was unable to do so because of circumstances beyond his control.  Petitioner requests that the tuition assessment be waived and that his children be allowed to attend respondent’s schools during the 2005-2006 school year “without incident.”

Respondent alleges that since petitioner was not a resident of the district during the 2004-2005 school year, it is entitled to the requested tuition.  Respondent further contends that the Commissioner does not have the authority to award money damages or to waive the assessed tuition.

Initially, I must address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Similarly, I have not considered respondent’s sur-reply and petitioner’s reply thereto.

Petitioner’s request for his children to attend respondent’s schools during the 2005-2006 school year “without incident” must be dismissed.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  Since the 2005-2006 school year has ended, this request for relief is moot.

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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

Pending home construction does not, in and of itself, establish residency (Appeal of Geithner, 43 Ed Dept Rep 450, Decision No. 15,047; Appeal of Sobel, 43 id. 93, Decision No. 14,931).  In this case, there is no dispute that petitioner and his children did not reside in the district during the construction of the in-district home.  During that time, petitioner sent one child to a private school and Valley Stream provided bus transportation for him.  In addition, his daughter attended Valley Stream’s summer school program in 2005 as a resident student.  Accordingly, I cannot find that respondent acted arbitrarily or capriciously in determining that petitioner’s children were not residents during the 2004-2005 school year and requiring tuition for the time period.

The amount of the tuition bill, however, must be addressed.  Respondent’s tuition bill includes tuition for special education that is more than twice the amount of tuition for a non-special education student.  This is legally impermissible.  Even though the actual cost of educating a student with a disability may be higher than that of educating a non-disabled student, to charge a higher tuition for the former student would constitute discrimination solely on the basis of his or her disability (seeLetter from the Assistant Secretary for Civil Rights, United States Dept. of Educ., Office for Civil Rights, August 10, 1994; Appeal of Taylor, 43 Ed Dept Rep 1, Decision No. 14,897).  Therefore, the tuition bill must be adjusted accordingly.  Respondent should also review and revise its tuition policy to ensure compliance with State and federal law and regulations.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent adjust its tuition bill in accordance with this decision.

END OF FILE

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