Decision No. 14,386

(June 12, 2000)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rye ("respondent") that her son, Ilirijani Camaj, is not a resident of the district. The appeal must be dismissed.

Petitioner resided with her son in the Rye City School District until July 22, 1999 when they moved to Harrison, New York. Petitioner sent her son to eleventh grade in respondent’s district for the 1999-2000 school year without informing respondent that they had moved from the district. On January 19, 2000, Mr. Walsh, the district’s Executive Director for Business, Facilities and Technology, was informed by a security officer at respondent’s high school that petitioner's son might not be a district resident and was apparently attending the district’s high school without the payment of tuition. Mr. Walsh thereafter asked the security officer to investigate the residency status of petitioner and her son. He did so, and concluded that petitioner and her son did not reside within respondent’s district, but had moved to Harrison, New York, outside the district, on July 22, 1999.

Based on the investigator’s report, Mr. Walsh informed petitioner, on February 9, 2000, that he had determined that she and her son were not district residents but that her son could continue attending the district’s high school upon the payment of tuition. Petitioner was further informed that her son would be excluded from attendance on February 25, 2000, unless she agreed to pay tuition in the amount of $8,846 plus $500 for the cost of the investigative report. Mr. Walsh also advised petitioner of her obligation to pay retroactive non-resident tuition for her son’s attendance from September 8, 1999 to February 18, 2000.

Petitioner commenced this appeal on February 25, 2000, seeking a determination that her son is entitled to attend respondent’s high school for the balance of the 1999-2000 school year without the payment of tuition. On March 3, 2000, petitioner’s request for interim relief was denied.

The appeal must be dismissed. Education Law "3202(1) provides, in pertinent part:

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 D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). For the purposes of Education Law "3202(1), residence is established based upon two factors: physical presence as an inhabitant of the district and the intent to reside in the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016).

Petitioner does not even try to prove that she resides within the district. Instead, she fully admits that she and her son reside outside respondent’s district. Her own petition alleges that she moved from the district on July 22, 1999, before the start of the 1999-2000 school year. Accordingly, I find that respondent’s determination was not arbitrary, capricious or unreasonable and should not be set aside.

In light of my determination, there is no need to address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

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