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Decision No. 18,306

Appeal of LEIF G. BIRDSALL, on behalf of his children, from action of the Board of Education of the Marathon Central School District regarding nonresident tuition.

Decision No. 18,306

(July 19, 2023)

Ferrara Fiorenza, P.C., attorneys for respondent, Cameron B. Daniels, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of the Board of Education of the Marathon Central School District (“respondent”) regarding nonresident tuition.  The appeal must be dismissed.

Petitioner and his family previously resided within respondent’s district.  In 2022, petitioner and his family moved to a home located outside of the district.  Upon petitioner’s request, respondent allowed petitioner’s children to attend the district as nonresidents if:  (1) petitioner paid the nonresident tuition rate calculated by the State Education Department (SED) for both children, which represented $6,099 combined for the 2022-23 school year, and (2) petitioner requested permission for his children to attend the district as nonresident students each year.  This appeal ensued.

Petitioner objects to the amount of the nonresident tuition calculated on behalf of his children.  He argues that he did not purchase a home within respondent’s district due to his inability to locate affordable housing therein.  He further contends that allowing his children to attend the district would impose a minimal burden on respondent.  He seeks an order directing respondent to admit the students at the rate of $2,500 per year.[1]

Respondent contends that it imposed a nontuition resident rate in accordance with a formula developed by SED.

First, I must address the scope of petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, Education Law § 3202 (2) provides that “[n]onresidents of a district ... 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.”  Respondent’s policy 7132 allows for the admission of nonresident students upon specified conditions.  It specifically states that “[t]uition may be charged to families of non-resident students in accordance with formulas approved by the State Education Department.”  SED has codified the nonresident tuition formula in Commissioner’s regulation 174.2.[2]

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioner has failed to prove a legal right to reduction of the assessed tuition.  School districts are not required to admit nonresidents (Education Law § 3202 [2]; Appeal of M.S. and M.R.F., 57 Ed Dept Rep, Decision No. 17,347).  If they so elect, however, they are entitled to charge tuition as outlined in 8 NYCRR 174.2.[3]  Respondent calculated the costs according to this formula.  Petitioner has presented no legal basis to pay less than half of this amount.  Additionally, although not explicitly mentioned in policy 7132, I find that respondent could permissibly require that non-residents such as petitioner request admission of their children on an annual basis.

I have considered petitioner’s remaining arguments and find them to be without merit.




[1] Petitioner also seeks a determination that his students could attend tuition-free if he worked as a bus driver on a “substitute/ part-time” basis.  Such relief is hypothetical and will not be addressed (e.g., Appeal of He, 57 Ed Dept Rep, Decision No. 17,299 [the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law § 310]).


[2] This formula was first articulated in a 1949 decision of the Commissioner pursuant to Education Law § 310 (Matter of Common School District No. 8, Town of Fayette, 70 St Dept Rep 69, Decision No. 5375).  The formula has become known as the “Seneca Falls formula” as the appeal concerned (then-)Seneca Falls Union Free School District No. 1.


[3] To the extent petitioner challenges SED’s regulation, any such challenge must be presented to a court of competent jurisdiction (Appeal of Chen, 60 Ed Dept Rep, Decision No. 17,907).