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Decision No. 15,785

Appeal of WAJU AKIWOWO, on behalf of her son MATTHEW, from an action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

Decision No. 15,785

(July 20, 2008)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Hewlett-Woodmere Union Free School District (“respondent”) that her son, Matthew, is not a district resident.  The appeal must be dismissed.

Petitioner’s son, Matthew, had attended respondent’s high school since September 2004, his freshman year.  During Matthew’s senior year, by letter dated October 15, 2007, the district’s business administrator notified petitioner that respondent believed that Matthew was not a district resident entitled to attend district schools tuition-free.

On October 17, 2007, petitioner and Matthew’s father met with the business administrator.  At that meeting, petitioner admitted that she and her son had resided outside the district since July 2007.  Petitioner argued that, pursuant to district policy, Matthew could attend district schools tuition-free even though he was not a resident.  The business administrator advised them that Matthew could be granted permission to attend district schools, but not on a tuition-free basis.  By letter dated October 17, 2007, the business administrator found Matthew to be a non-district resident and advised that Matthew would be excluded from school on November 9, 2007.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 21, 2007.

Petitioner seeks a determination that Matthew is entitled to attend the district’s schools tuition-free.  Respondent contends that petitioner and her son are not district residents and that Matthew is not entitled to attend the district’s high school tuition-free. 

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).

The right of residents to attend the public schools of the district tuition-free 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 consent of the trustees or the board of education, upon terms prescribed by such trustees or board (Education Law §3202(2)).

Respondent’s policy provides:

Eligible former residents moving from the district but wishing to continue in school will be charged the full tuition rate from the date of departure to the end of the school year if they become former residents prior to April 1.  Former residents moving after April 1 will be permitted to finish the school year without charge.  Such students enrolled in grade 11 or 12 may be permitted to finish high school and graduate with their class.  Tuition will be assessed for the 12th grade year if permission to continue is granted provided that such payment shall be received in advance of the month(s) involved.

Here, petitioner admits that she and her son do not reside in the district and have not resided in the district since July 29, 2007.  Pursuant to law and policy, Matthew was not entitled to attend the district’s schools on a tuition-free basis, but could attend respondent’s schools upon obtaining permission and the payment of tuition.