Appeal of ALISA KOBAN, on behalf of her son TYLER, from action of the Board of Education of the Gates Chili Central School District regarding residency.

Decision No. 16,025

(February 10, 2010)

Charles T. Noce, Esq., attorney for petitioner

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for respondent, Jay C. Pletcher, Esq., of counsel

STEINER,Commissioner.--Petitioner appeals the determination of the Board of Education of the Gates Chili Central School District (“respondent”) that her son, Tyler, is not a district resident.  The appeal must be dismissed.

Petitioner resides in North Chili, within the Churchville-Chili Central School District (“Churchville-Chili”).  Tyler attended the 10th grade at respondent’s high school during the 2008-2009 school year based on information that he resided with petitioner at her parent’s home within respondent’s district.  In May 2009, respondent conducted an investigation of petitioner’s residency.  By letter dated May 20, 2009, petitioner was informed by respondent that Tyler would be allowed to complete the 2008-2009 school year but that she should take the necessary steps to enroll him in Churchville-Chili as of June 30, 2009.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 18, 2009.

Petitioner admits that she and her son reside in Churchville-Chili and not in respondent’s district.  Petitioner asserts, however, that her son has thrived in respondent’s schools and has experienced some difficulties with certain students from Churchville-Chili.  Petitioner states that she is willing to make financial arrangements in order to pay for her son to complete high school and graduate from respondent’s district. 

Respondent contends that its determination that petitioner’s son is not a district resident is based on petitioner’s own admission of non-residency, as well as evidence gathered during its investigation and surveillance, and was not arbitrary or capricious.  Respondent also asserts that it does not accept non-resident tuition-paying students.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

While I am sympathetic to petitioner’s contention that changing schools can be difficult, these facts do not provide a sufficient legal basis for overturning respondent’s residency determination (Appeal of Martoccia, 42 Ed Dept Rep 76, Decision No. 14,781).  By petitioner’s own admission, she and her son reside outside the district.  Pursuant to Education Law §3202(2), school districts have discretion to refuse to admit nonresident students (Appeal of Del Sonno, 45 Ed Dept Rep 51, Decision No. 15,256).  Therefore, I cannot conclude that respondent’s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE.