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Decision No. 15,625

Appeal of TREVOR BERNARD, on behalf of his daughter ALEXZANDRIA, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 15,625

(August 13, 2007)

Ehrlich, Frazer & Feldman, attorneys for respondent, Christie R. Medina, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that his daughter, Alexzandria, is not entitled to attend the district’s schools.  The appeal must be dismissed.

Petitioner claims that in March 2007, he, his wife and his two children, Alexzandria and Xavier, moved from their home in respondent’s district to Nightingale Road in West Hempstead, New York, located in the West Hempstead Union Free School District.  At the time this appeal was commenced, Alexzandria was an eleventh grade student in respondent’s high school and Xavier was an eighth grade student in respondent’s middle school.  Petitioner claims that at the time of the sale, he was unaware that the new residence was located outside of respondent’s district.

By letter dated April 13, 2007, respondent’s director of pupil personnel services notified petitioner that the district had obtained information indicating that petitioner and his two children resided at the West Hempstead address and that his children would be prohibited from attending respondent’s schools effective April 30, 2007.  By letter dated April 19, 2007, petitioner requested that Xavier be permitted to continue attending respondent’s middle school for the rest of the school year so he could graduate with his eighth grade classmates, and that Alexzandria be permitted to attend respondent’s high school for the remainder of the 2006-2007 school year and all of the 2007-2008 school year so she could graduate with her classmates.  

On April 25, 2007, respondent’s president sent a letter to petitioner, notifying him that Xavier could remain in respondent’s district for the 2006-2007 school year, but that Alexzandria would be not be permitted to attend respondent’s high school, effective April 30, 2007.  This appeal ensued.   Subsequent to the commencement of this appeal, respondent agreed to extend Alexzandria’s exclusion date to June 30, 2007.

Petitioner requests that Alexzandria be permitted to attend respondent’s high school until she graduates in 2008.  Respondent argues that its determination was not arbitrary and capricious. 

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 residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  In an appeal to the Commissioner, the 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; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Petitioner and his children admittedly reside outside of respondent’s district.  However, petitioner is requesting that Alexzandria be permitted to complete her junior and senior year in respondent’s high school so that she can graduate with her classmates.

Pursuant to Education Law §3202(2), 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.  Respondent’s district policy provides, in pertinent part:

Students who have completed the Eleventh Grade in Malverne High School as legal residents of the District may, with the prior recommendation of the Principal and Superintendent and the approval of the Board of Education, complete a final year of High School instruction at Malverne High School without payment of tuition.

Unfortunately, Alexzandria is not eligible for consideration under the district’s policy because she did not complete eleventh grade while she was a legal resident of the district.  Thus, upon the record before me, I find that petitioner has failed to demonstrate that respondent’s decision to prohibit Alexzandria from attending respondent’s high school for the 2007-2008 school year was an abuse of discretion.  Accordingly, the petition must be dismissed.