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Decision No. 15,882

Appeal of P.M., on behalf of his daughter J.M., from action of the Board of Education of the AuSable Valley Central School District regarding nonresident tuition.

Decision No. 15,882

(March 2, 2009)

Stafford, Owens, Curtin & Trombley PLLC, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the AuSable Valley Central School District (“respondent”) denying his request to waive nonresident tuition for the attendance of his daughter.  The appeal must be dismissed.

Petitioner and his daughter reside in the Peru Central School District.  Petitioner enrolled his daughter in respondent’s schools for the 2007-2008 school year, agreeing to pay $1,000 in tuition.  On June 18, 2008, petitioner appeared before respondent to request a waiver of tuition.  By letter dated June 23, 2008, respondent denied such request.  This appeal ensued.

Petitioner claims that, given the failure of the Peru Central School District to protect his daughter from bullying during the 2006-2007 school year, he should not be required to pay tuition for her attendance in respondent’s schools.  Petitioner requests a determination that his daughter has a better chance of receiving a harassment free education in respondent’s schools and is entitled to attend without the payment of tuition.

Respondent contends that it acted in accordance with Education Law and its policy in denying petitioner’s request.    

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  In this case, petitioner has failed to demonstrate any legal right to a waiver of nonresident tuition.

Pursuant to Education Law §3202(2), “[n]onresidents 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.”  In accordance with such section, respondent’s Board Policy No. 5152 permits the admission of nonresident students to respondent’s schools if the student meets certain criteria and upon the payment of tuition.  The only exemption from payment of tuition exists for certain former residents or intended residents of the district.  In this case, petitioner is not a resident of respondent’s district and does not qualify for an exception to respondent’s tuition policy.  Therefore, I do not find respondent’s actions to be arbitrary, capricious or unreasonable.