Decision No. 12,987

(August 16, 1993)

Jaspen, Ginsberg, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent,

Lawrence J. Tenenbaum, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner, on behalf of his children Isaiah and Jessica Moultrie, challenges respondent's determination that the children are not residents of the Lawrence Union Free School District ("the district"). The appeal must be dismissed.

Petitioner alleges that he and his family resided within the district at 356 Bayview Avenue, Inwood, until April 1990 when fire destroyed their home. According to petitioner, the family moved to a relative's home at 385 Bayview Avenue after the fire. He contends that 385 Bayview Avenue is the family's present address, and that they have resided there continuously since April 1990. This contention is belied by a letter from the management company responsible for 385 Bayview Avenue, stating that petitioner and his family do not reside there with their relative.

Petitioner's son and daughter registered for kindergarten in the district in August 1990 and August 1991, respectively. They were admitted as residents based on their mother's statement, supported by an alleged lease for the premises, that the family resided at 356 Bayview Avenue. As indicated, however, 356 Bayview Avenue had previously been destroyed by fire in April 1990.

Respondent alleges that petitioner and his family reside at 50 Harrison Avenue, Freeport, outside the district. In March 1992, the district's assistant superintendent for business met with petitioner to discuss his residency. At that time, petitioner supplied the district with a notarized letter dated March 6, 1992 stating that, due to the fire at 356 Bayview Avenue, he and his family had moved to 50 Harrison Avenue, Freeport. In the letter, petitioner indicated that 356 Bayview Avenue would be renovated by May 14, 1992, at which time he and his family would reoccupy those premises. Petitioner indicated he would provide respondent with copies of all construction contracts and building permits as proof of his intention to return to the district. On the basis of that statement, respondent permitted petitioner's children to remain in the district's schools.

Petitioner never produced evidence of renovation at 356 Bayview Avenue. Rather, the record contains a permit for the property's demolition, which was apparently initiated by the Town of Hempstead. Consequently, in January 1993 respondent informed petitioner that, as non-residents, his children would be excluded from the district. This time petitioner replied that he intended to occupy a home at 366 Bayview Avenue, Inwood, pending completion of a foreclosure proceeding on that property. Petitioner stated that if his family did not move into 366 Bayview Avenue by February 22, 1993, he would voluntarily remove his children from the district. Again, based on his representations, petitioner's children were permitted to remain in the district.

By April 1993, petitioner's family had not taken up residence at 366 Bayview Avenue. Consequently, on April 21, 1993, the district's supervisor of transportation ("the supervisor") notified petitioner that his children were not considered residents of the district and would no longer be permitted to attend school there tuition-free. The supervisor's letter advised petitioner of his right to appeal the determination to the district's superintendent of schools and, if the superintendent's decision were unfavorable, to the board of education. On April 29, 1993, however, petitioner appealed directly to the Commissioner of Education pursuant to Education Law '310. As Acting Commissioner, I granted interim relief on May 11, 1993.

Respondent contends the appeal should be dismissed because petitioner failed to exhaust administrative remedies. As a prerequisite to appeal pursuant to Education Law '310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 83, 86; see, e.g., Appeal of Elkins, 27 id. 99, 101). The Regulations of the Commissioner of Education provide that

The supervisor's letter clearly advised petitioner of the district's procedures for review by the superintendent and the board of education. In light of '100.2(y), petitioner was required to avail himself of these procedures. On the record presented, his failure to do so compels me to dismiss the appeal.

Petitioner's children retain the right to reapply for admission to the district at any time, and to appeal, thereafter, from any final determination denying admission (Appeal of Colas, 32 Ed Dept Rep 128). Therefore, had there been any significant question about the children's residence, I would have remanded this matter directly to the board of education for determination, and I would have retained jurisdiction over the appeal. However, because I have seen nothing in the record to suggest that petitioner's children may be bonafide residents of the district, I find that a remand to the board of education would be futile and, as the commencement of the school year approaches, contrary to the children's educational interests. It is important for petitioner's children to enroll in their school district of residence as soon as possible, so they may begin the 1993-94 school year without disruption. As indicated, nothing in my decision precludes the children from reapplying for admission to the district at any time.

Although the appeal is dismissed on procedural grounds, my decision shall constitute a "determination on the merits" for purposes of the interim order dated May 11, 1993.

THE APPEAL IS DISMISSED.

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