Appeal of MICHAEL QUERCIA, on behalf of his son BRIAN, from action of the Board of Education of the Farmingdale Union Free School District regarding residency.

Decision No. 15,409

(May 26, 2006)

Guercio & Guercio, attorneys for respondent, Richard J. Guercio, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Farmingdale Union Free School District (“respondent”) that his son, Brian, is not a district resident.  The appeal must be dismissed.

At the time this appeal was commenced, petitioner and Brian resided in respondent’s district where Brian attended fourth grade.  For financial reasons petitioner and his wife decided to sell their in-district home and relocate to the state of Georgia.  The closing on their home was to take place on December 29, 2005.  Upon learning that Brian’s grandmother was gravely ill, petitioner decided to delay the plan to permanently relocate his family but decided to proceed with the closing on his home.  Sometime in early December 2005, petitioner notified respondent’s assistant superintendent for administration that in January 2006 his family would move in with Brian’s aunt and uncle, who resided outside respondent’s district.  By letter dated December 4, 2005, petitioner requested that Brian be granted permission to continue attending school in respondent’s district through the end of the 2005-2006 school year.  By letter dated December 8, 2005, respondent’s superintendent of schools denied petitioner’s request.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 27, 2005.

Petitioner argues that Brian is adjusting to uncertainty and change, will soon be dealing with grief and needs stability in his life.  Petitioner contends that Brian is already part of the class and does not pose an additional burden.  Petitioner states that he did not attempt to deceive the school district regarding his change in residence.  He requests that Brian be permitted to complete the 2005-2006 school year in respondent’s district, and states that in 2006-2007 Brian will attend school in the district in which he resides.

Respondent alleges that the appeal was premature at the time the petition was served and that there is no legal basis upon which to grant the relief requested.  Respondent alleges that petitioner did not continue to reside in the district after the December 29, 2005 closing of the sale of his in-district residence, and that district policy does not permit a student who moves out of the district during the first semester to continue to attend school in the district without payment of tuition.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Petitioner and his son, admittedly, did not reside in respondent’s district after December 29, 2005.  Respondent’s policy does not allow students who move out of district in the first semester to continue to attend in the district tuition-free.  Therefore, petitioner has failed to meet his burden of demonstrating a clear legal right to the relief requested.

In light of this disposition, I need not address the parties remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE