Appeal of ELIZABETH MORINE, on behalf of her daughter BRANDY, from action of the Board of Education of the Berlin Central School District regarding admission to school.

Decision No. 16,441

(December 27, 2012)

Whiteman, Osterman & Hanna, LLP, attorneys for respondent, Monica R. Skanes, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals a determination of the Board of Education of the Berlin Central School District (“respondent”) that her daughter is not entitled to continue to attend its schools tuition-free.  The appeal must be dismissed.

Petitioner and her children resided in respondent’s district prior to the 2011-2012 school year, and petitioner’s children attended school in the district.  Petitioner’s daughter, Brandy, attended the district’s high school at the beginning of the 2011-2012 school year but, shortly after commencement of that year, petitioner informed the superintendent that she had moved to the Hoosick Falls Central School District where she enrolled her younger son.  Petitioner requested that Brandy be able to continue attendance in respondent’s high school throughout the 2011-2012 and 2012-2013 school years.  Petitioner was advised by the superintendent that she could continue as a non-resident student only upon payment of tuition.  Petitioner apparently informed the superintendent that she could not pay tuition.

Petitioner appeared at a public board meeting on October 18, 2011 and requested that her daughter remain enrolled at respondent’s high school until her graduation in 2013.  The matter was adjourned until December 20, 2011, but Brandy was permitted to continue attending respondent’s high school until a final decision was made. On December 20, 2011, respondent denied petitioner’s request and excluded Brandy from its schools.  By letter dated January 6, 2012, petitioner was notified that she had until January 30, 2012 to enroll Brandy in the Hoosick Falls Central High School. This appeal ensued.  Petitioner’s request for interim relief was denied on February 9, 2012.

Petitioner contends that Brandy is entitled to attend respondent’s schools tuition-free pursuant to its non-residency policies.

Respondent asserts that petitioner admitted to residing outside the district, and that Brandy does not qualify for admission without the payment of tuition under the district’s non-residency policies.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner has failed to establish that her daughter is entitled to continue attending school in respondent’s district.  Petitioner admits that she and her daughter currently reside outside respondent’s district.  However, petitioner claims that Brandy is entitled to attend respondent’s schools based on district policy.  Board Policy No. 5.170-02 II(E) provides that a student may remain in the district’s schools for the balance of the current school year if the student’s family moves out of the district when less than half of the number of days in the regularly scheduled school year remain. 

It appears from the record that petitioner and Brandy moved out of respondent’s district on or about October 3, 2011.  At that time more than half the school year remained.  Consequently, Board Policy No. 5.170-02 II(E) is not applicable and does not entitle Brandy to continued attendance in respondent’s schools.  Although respondent permitted Brandy to continue to attend school in the district while it considered petitioner’s request, the district’s leniency does not extend the date that petitioner is determined to have moved from the district or otherwise render Board Policy No. 5.170-02 II(E) applicable.

Further, I note that, although respondent permits non-resident students to attend its schools upon payment of tuition, respondent asserts that petitioner stated that she could not afford to pay tuition.  Petitioner submits no reply to refute that assertion.

Therefore, on this record, I cannot conclude that respondent’s refusal to permit Brandy’s continued attendance in its school district tuition-free was arbitrary, capricious or unreasonable.  I have considered petitioner’s remaining contentions and find them to be without merit.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf at any time, should circumstances change, and to submit any information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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