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Decision No. 17,491

Appeal of JANICE and AARON KING, on behalf of their son GAVIN, from action of the Board of Education of the North Syracuse Central School District regarding residency.

Decision No. 17,491

(August 21, 2018)

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the North Syracuse Central School District (“respondent”) that their son, Gavin (“the student”), is not a district resident.  The appeal must be dismissed.

During the 2017-2018 school year, the student attended respondent’s Cicero-North Syracuse High School.  The record indicates that, prior to the 2017-2018 school year, the student had resided within respondent’s district and attended respondent’s schools as a resident since his enrollment in kindergarten. 

Respondent submits an affidavit from its Executive Director for Data/Accountability, Social Studies and Music (“executive director”), the individual responsible for making residency determinations, who avers that, on April 9, 2018, she received a tip that the student no longer resided within the district.  Respondent thereafter conducted an investigation and confirmed that the student moved to a residence in the neighboring Phoenix Central School District.  On April 16, 2018, petitioners admitted to respondent’s executive director that the student had moved out of the district, effective December 30, 2017, but that petitioners continued to transport the student to respondent’s schools.  By letter dated April 17, 2018, respondent’s executive director informed petitioners that the student was no longer a resident of the district and, as such, was no longer entitled to attend respondent’s schools.  This appeal ensued.  Petitioners’ request for interim relief was granted on May 21, 2018.

Petitioners do not dispute that they are no longer residents of respondent’s district.  In fact, petitioners assert that they sold their home within respondent’s district at the end of 2017 to move into a more accessible home to care for an ailing family member.  However, despite such move, petitioners continued to transport the student to respondent’s high school.  Petitioners assert that enrolling the student in his school district of residence so late in the academic year would negatively impact the student’s academic success.

Respondent contends that petitioners are no longer residents of the school district, and as such the student is not entitled to attend Cicero-North Syracuse High School.

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, and based on petitioners’ own admission that they no longer reside within respondent’s district, I find that the student is not a resident of respondent’s district and as such is not entitled to attend the schools of the district.

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.