The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
This appeal presents the question of whether a school district is obligated to pay for the educational costs of the children living in a child care institution located within district boundaries. We hold that a school district is not obligated to provide a tuition-free education to those children determined to be nonresidents of the school district.
The Greek Archdiocese Institute of St. Basil (hereinafter St. Basil) is located within the boundaries of the Garrison Union Free School District and houses primarily Greek Orthodox children whose parents are unable to care for them due to circumstances such as death, abuse, neglect, disability or poverty. The children are typically placed at the initiative of priests in parishes across the United States, sometimes accompanied by family court orders. St. Basil does not always obtain custody or guardianship status over the children.
There has been a longstanding dispute over who bears the burden of paying the educational costs for the children at St. Basil. Over 25 years ago, St. Basil and Garrison settled a lawsuit by way of an agreement providing that St. Basil would pay the Garrison school district all charges for tuition and any other costs incidental to the education of all students residing at St. Basil's whose parents were not residents of the school district. Since that time and until 2002, St. Basil either educated the children at a boarding school it operated at its residential facility or sent the children to public schools in neighboring school districts or private schools on a tuition-paying basis.
In September 2002, St. Basil attempted to register 26 school-aged children in the Garrison school district on a tuition-free basis. Garrison scheduled a residency hearing before an appointed hearing officer pursuant to Part 100.2 (y) of the regulations of the Commissioner of Education of the State of New York to determine its obligations. In November 2002, the Hearing Officer determined that none of the students were residents of the Garrison school district and therefore they were not permitted to attend the school on a tuition-free basis. St. Basil appealed that determination to the Commissioner of Education.
The Commissioner affirmed the Hearing Officer's decision. In doing so, the Commissioner explained that Article 81 of the Education Law did not apply because St. Basil was not a "child care institution" since it was not licensed by the New York State Office of Children and Family Services (OCFS). At the time, St. Basil's licensure was pending with OCFS. The Commissioner concluded that the default statute, Education Law § 3202 (6), applied, and under that statute a child's residence is presumed to be that of his or her parents unless the parents relinquished total custody and control. Because there was "insufficient evidence" to establish that the parents relinquished permanent custody and control to St. Basil, that residency presumption was not rebutted. Thus, the Commissioner held that the children living at St. Basil who attend Garrison school district must do so on a tuition-paying basis. The Commissioner further held that if the parents (or guardians) of the children resided in New York, the expense should be covered by the school district of the parent's residence. In other words, Garrison school district was obligated to educate the children only if St. Basil or some other entity or individual assumed financial responsibility for tuition. Neither St. Basil nor Garrison appealed the Commissioner's determination.
In September 2003, St. Basil submitted an application for a certificate to operate a residential care program for children pursuant to Social Services Law § 460-b. The regulations required St. Basil to submit an educational plan showing that it would take the necessary steps to ensure that the children living at the institution receive an education in accordance with the requirements of the Education Law (see 18 NYCRR 441.13 [a]). In its Education Plan, St. Basil stated that "[a]fter completion of the 2004-2005 school year...St. Basil will pay the tuition for its students to continue to attend [schools outside Garrison School District] unless the Commissioner of Education determines that Garrison is responsible for those charges." On November 10, 2006, St. Basil was issued a license to operate a residential child care institution.
Thereafter, Garrison commenced the instant action seeking, among other things, a judgment declaring that St. Basil's status as a licensed child care institution did not mean that Garrison was now required to pay for the education costs of the children at St. Basil who were not residents of the school district. St. Basil responded by filing counterclaims, which, among other things, sought a declaration that Garrison was obligated to provide a cost-free education to all children placed at St. Basil and that St. Basil is not responsible for paying the tuition of its non-resident children. After motion practice not relevant to this appeal, St. Basil and Garrison each moved for summary judgment on their claims for declaratory relief.
Supreme Court found that Garrison was not responsible for the cost of educating the children living in St. Basil who are not residents of the Garrison school district as defined by Education Law § 3202. The Appellate Division affirmed (75 AD3d 569 [2d Dept 2010]) and certified the following question to this Court: "Was the order of this Court entered July 20, 2010 properly made?"
St. Basil argues that the rights of the children are established by Education Law § 4002, which, compels Garrison to provide free and appropriate education to all of the children residing at St. Basil. Garrison counters that section 4002 must be read in conjunction with Education Law § 3202, which provides that the school district of a child's residence - and not the school district where the child care institution is located - is financially responsible for the cost of educating a child living at a child care institution.
We begin our analysis with the general statute, Education Law § 3202, which is entitled "Public schools free to resident pupils; tuition from non-resident pupils." The statute "sets out a framework for determining when and under what circumstances a school district is obligated to provide free education" (Catlin v Sobol, 77 NY2d 522, 560 ). It is "designed to allocate costs sensibly between school districts and to avert burdening them with the costs of educating nonresident children" (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 388-389 ). Section 3202 (1) provides:
"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."
"Thus, every school district must 'provide tuition-free education only to students whose parents or legal guardians reside within the district'" (Longwood, 1 NY3d at 389, citing Appeal of Stokes, 32 Ed Dept Rep 93, 94 [Decision No. 12,769] ).
Neither party disputes that section 3202 requires the Garrison school district to provide a tuition-free education to those children living at St. Basil who qualify as residents of the district. St. Basil argues, however, that since it received its license to be a "child care institution," Article 81 of the Education Law (Education Law § 4001 et seq.), and not Education Law § 3202 applies to all of the nonresident children living at St. Basil. Thus, under Article 81, St. Basil claims, all children residing in child care institutions, whether their school district of residence is in-state or out-of-state, are entitled to ...