Appeal of PAMELA HILLHOUSE, on behalf of her daughter LARA, from action of the Board of Education of the East Rochester Union Free School District regarding residency and senior status.

 

Decision No. 14,720

(May 9, 2002)

 

Joyce B. Berkowitz, Esq., and Vincent Barone, Esq., attorneys for petitioner

 

David R. Morabito, Sr., Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the East Rochester Union Free School District ("respondent") that her daughter, Lara, is not eligible to remain enrolled in respondent"s high school until she graduates. The appeal must be dismissed.

This appeal centers on respondent"s interpretation and application of 2001 School District Policy No. 7131 ("the policy") regarding residency. The policy states that, to enroll in district schools, a student must reside in the district. Students entering their senior year may continue to attend respondent"s schools, provided that the student"s legal residence is located within the district upon the successful completion of their junior year. Policy guidelines indicate that the latter portion of the policy applies to seniors or students "eligible to be" seniors.

Petitioner moved into respondent"s district in August 1995 and enrolled her children in respondent"s schools. Petitioner"s daughter Lara attended East Rochester High School ("East Rochester"). Petitioner contends that she called the district clerk in September 2001, to discuss a possible move to Victor, New York, and the effect this move might have on her children"s school enrollment. She further contends that the district clerk told her that the children could complete the school year in respondent"s schools, and that Lara could remain at East Rochester throughout the 2002-03 school year.

The district clerk denies having such conversation with petitioner in September 2001, and states that her telephone call log does not reflect any telephone calls from petitioner in September 2001. The district clerk also denies that she would have told petitioner that Lara could complete her senior year at the high school after moving out of the district during her junior year. She contends that she would, instead, have told petitioner that no students who did not live within the district were allowed to attend district schools. However, a student who completed his or her junior year at East Rochester while still a district resident would be permitted to complete his or her senior year at the high school although residing outside the district. The district clerk noted that she was completely familiar with this policy, which had not changed in several years.

On December 17, 2001, petitioner"s family moved to Victor, outside of respondent"s district. On or about January 14, 2002, the high school principal called petitioner and told her that her children were no longer eligible to remain in respondent"s schools because the family was now living in Victor, but the children would be permitted to remain until they completed their mid-term exams. Petitioner told him that Lara was ahead in her credits toward graduation, and asked whether, as a result, Lara could remain at East Rochester. In a subsequent conversation on January 15, 2002 the principal told petitioner that Lara could technically be considered a senior, but the only way she could remain at East Rochester would be to take English and Social Studies during the summer and complete her graduation requirements by August 2002. The principal later stated that he had been mistaken about Lara"s eligibility to be considered a senior, and that his advice to petitioner had been incorrect.

The director of pupil personnel services, Donald Shuryn, is respondent"s designee for determining residency. He learned of the residency question regarding Lara on January 15 or 16, 2002. He reviewed the situation, determined that Lara did not qualify to remain at East Rochester, and advised petitioner"s attorney of this determination in a conversation on January 24, 2002. Petitioner"s attorney sent a letter to Mr. Shuryn on the same date, asserting that Lara was eligible to be a senior. The attorney"s letter noted that respondent required students to earn 21.5 credits to graduate and, as of the end of the 2000-01 school year, Lara had already accrued 16.5 credits or 77% of the credits needed for graduation. The attorney opined that, because Lara had accumulated more than three-quarters of the credits required for graduation while she was still a resident of the district, Lara was thus eligible to be a senior and the policy permitted her to remain at East Rochester until graduation.

Mr. Shuryn responded to counsel"s letter on January 25, 2002, explaining his determination that Lara was not eligible to be a senior. The East Rochester Junior/Senior High School Course of Studies Handbook states that, for promotion into 12^th grade or senior status, students need to earn a minimum of 15 credits including three English and three Social Studies courses. Mr. Shuryn stated that Lara had not yet completed the three credits of high school English and three credits of high school Social Studies required to be promoted to senior. Mr. Shuryn advised that Lara"s last day of school in respondent"s district would be February 1, 2002. This appeal ensued. Petitioner"s request for interim relief was denied on February 8, 2002.

Petitioner contends that respondent improperly determined that Lara is neither a senior nor eligible to be a senior. Petitioner also contends that respondent"s promotion policy is arbitrary and capricious, and violates 100.5(e) of the Commissioner"s regulations, because students are only allowed to double up on English or Social Studies courses during their senior year. Petitioner asserts that this provision is unreasonable because seniors are already required to have three credits each of English and Social Studies to attain the status of senior and only need four credits of English and Social Studies to graduate. Petitioner states that, unless students elect to satisfy the requirement for a major sequence by completing five credits in English or Social Studies, there would be no reason for students to double up in these content areas during their senior year. Petitioner also asserts that Lara was permitted to take two extra half-year Social Studies courses, in alleged violation of the promotion policy, and petitioner contends that the school district cannot choose which one of its policies it will follow. Petitioner requests an order declaring that Lara is a senior or eligible to be a senior. Respondent contends that its residency policy is clear, Lara did not have sufficient minimum credits in English or Social Studies to be considered a senior, and she is not entitled to remain at East Rochester now that she and her family are no longer district residents.

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 Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Waters, 41 id. ___, Decision No. 14,616). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, supra), and petitioner admits that the family moved out of respondent"s district on December 17, 2001. Respondent"s policy is more lenient than "3202(1), and permits a student to remain at East Rochester for the remainder of his or her senior year if the student attained the status of senior, or was eligible to be considered a senior, while the student was still a resident of respondent"s district.

I must agree with respondent"s determination that Lara had not attained senior status and was not eligible to be considered a senior as of the date that she and her family moved out of the district. Although Lara had accrued more than three-quarters of the total credits needed for graduation, she did not meet respondent"s requirement that a student may not be promoted to senior until the student had completed 15 credits including three years of high school English and three years of high school Social Studies. A review of Lara"s transcript indicates that, although she had attained the necessary total number of credits to be considered a senior, she had only completed two years of English.

The record is unclear as to whether she had completed three years of Social Studies. Petitioner contends that Lara took two extra half-year courses, in addition to completing the freshman and sophomore Social Studies classes. Respondent asserts generally that Lara had not yet completed three years of Social Studies, but does not expressly address the question of the two extra half-year courses. In any event, the failure to complete three full years of high school English prior to December 17, 2001, while she was still a resident of respondent"s district, compels a determination under respondent"s promotion policy that Lara had not yet completed her junior year and was not eligible to be considered a senior.

Petitioner further contends that respondent"s policy prohibiting a student from doubling up on English or Social Studies courses until his or her senior year is arbitrary and capricious. I do not find that petitioner is aggrieved by any determination of respondent in the instant appeal with respect to this issue. There is no indication in the record that Lara had requested an opportunity to take extra English courses to attain senior status early, and that such request had been denied on the basis of respondent"s policy. In the present context, it appears that petitioner is merely seeking an advisory opinion on the propriety of this policy. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of Huber, et al, 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Doro, 40 id. ___, Decision No. 14,480).

 

THE APPEAL IS DISMISSED.

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