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Decision No. 16,114

Appeal of MELISSA and GEOFF BALLENGER, on behalf of their sons JOHN and JAMES, from action of the Board of Education of the Scarsdale Union Free School District regarding the payment of tuition.

Decision No. 16,114

(July 27, 2010)

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Scarsdale Union Free School District (“respondent”) to charge them tuition for the attendance of their two sons.  The appeal must be dismissed.

Prior to February 2009, petitioners resided in Seattle, Washington.  On April 2, 2009, they executed a contract on a home located within respondent’s district and agreed to allow the seller to lease back the house until July 15, 2009.  Petitioners were told by an office aide at respondent’s elementary school that their sons could attend school tuition-free upon the execution of a purchase contract for a house located within the district.

By letter dated April 22, 2009, and verbally on April 27, 2009, the assistant superintendent for personnel and administrative services (“assistant superintendent”) advised petitioners that, in accordance with district policy, they would be required to pay tuition in order for their children to attend district schools.  Petitioners’ children began to attend respondent’s elementary school on April 27, 2009.  However, petitioners resided outside the district for the remainder of the 2008-2009 school year.  The district mailed petitioners a tuition bill dated April 27, 2009 for $7,206.32.  A series of letters between petitioners and the district ensued.  By letter dated October 7, 2009, the superintendent again requested payment of tuition, provided petitioners with a copy of the relevant board policy and notified them of their right to appeal to the Commissioner of Education.  This appeal ensued.  Petitioners’ request for interim relief was denied on November 20, 2009.

Petitioners allege that the assessment of tuition was arbitrary, capricious and unreasonable.  Petitioners contend that they relied on representations of the office aide that their children could attend school tuition-free.  Petitioners also contend that respondent failed to timely provide them with the relevant district tuition policy and that the superintendent discriminated against them when refusing to extend an exemption specified in the board policy.  Petitioners request that the tuition assessment be waived.

Respondent alleges that the appeal is untimely, that petitioners have failed to state a claim upon which relief can be granted and that petitioners request an advisory opinion.  Finally, respondent maintains that the office aide who informed petitioners that their children could attend school tuition-free is not authorized to make representations regarding residency or the imposition of tuition charges.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Respondent contends that the appeal is untimely because respondent rendered a final determination on April 22, 2009 and the appeal was not properly commenced until November 6, 2009.  Respondent contends that the district restated its determination on April 27, June 17 and September 10, 2009 but these restatements did not toll the time for commencing the appeal.  However, respondent continued to address the tuition issue with petitioners until its letter of October 7, 2009 when it informed petitioners that “board of education policy on tuition is subject to review by the Commissioner of Education.”  Since petitioners’ appeal was commenced within 30 days of October 7, 2009, I decline to dismiss it as untimely.

Pursuant to Education Law §3202(2), “[n]onresidents of a district, if otherwise competent, may be admitted to 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 policy No. 5152(3) permits the admission of a nonresident student to respondent’s schools without tuition if the student’s parents own a house in the district that is unoccupied so long as the house remains unoccupied, but no longer than the end of the school year in which the house became unoccupied.  In this case, petitioners’ house was not unoccupied since the former owners remained in the house until after the end of the school year; therefore, the exception provided by policy No. 5152(3) does not apply to them.

Respondent’s policy No. 5152(4), which applies to persons who have contracted to buy a home in the district but have not yet moved in, requires prepayment of tuition until residence in the district commences.  It contains an exception that provides for a tuition refund when parents purchase a house in the district and the student becomes a resident on or before October 15.  Petitioners argue that since those students can attend tuition-free at the beginning of the school year, their children should be able to attend without the payment of tuition for a couple of months at the end of the school year.  However, since petitioners enrolled their children in district schools on April 27, 2009, not at the beginning of the school year, section four of the policy is also inapplicable.

Further, the office aide’s mistaken representation that petitioners would not have to pay tuition does not bar respondent from later collecting tuition.  Except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487).

Finally, petitioners allege that they were discriminated against.  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).  Petitioners have offered no evidence that the district treated them differently from other similarly situated families and have therefore failed to establish their burden in this regard.