Decision No. 13,026

(October 21, 1993)

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to admit her children to the public schools of the White Plains City School District ("the district"). The appeal must be dismissed.

Petitioner resides in the Bronx. According to the record, in 1992, petitioner transferred custody of her children to an aunt, Audrey Arthur, who lives in respondent's district. Based on affidavits submitted to respondent in 1992, school authorities admitted petitioner's children to White Plains High School as residents of the district for the 1992-93 school year.

In June 1993, petitioner apparently informed school officials that her children were living outside the district, in Tuckahoe, because the living arrangement with their guardian had not worked out. Thereafter, respondent investigated the children's residence and, by letter dated June 28, 1993, the assistant superintendent informed petitioner of its conclusion that her children did not reside in the district. The letter also advised petitioner of her right to submit additional information regarding her children's residence before a final determination was made. Petitioner declined to submit any information. By letter dated July 15, 1993, the assistant superintendent informed petitioner of its determination that her children did not reside in the district and would not be entitled to attend school there in September 1993. The July 15, 1993 letter included an explanation of the basis for respondent's determination and petitioner's right to appeal.

According to respondent, on September 8, 1993, petitioner's children arrived at the district's central registration office to attend school. No new application for admission was made. Relying on respondent's July 1993 determination, the assistant superintendent informed petitioner by telephone that her children were not entitled to attend school there. The children were sent home, and petitioner subsequently commenced this appeal.

Although respondent treats this as an appeal from its July determination, it seems that petitioner seeks to challenge respondent's current action to exclude her children from the schools of the district based on a change in circumstances. To the extent petitioner is appealing respondent's July determination, I note that she previously admitted that her children lived outside the district.

In any case, I find that respondent's July 15 decision was based on sound evidence and that, in accordance with Commissioner's regulations, petitioner received proper written notice and an opportunity to submit additional information before a final determination was rendered.

To the extent petitioner is appealing her children's current exclusion from respondent's schools, there is no evidence that respondent was ever given an opportunity to consider any new facts or make a final determination based on the evidence presented in this petition. Although petitioner's children retain the right to reapply for admission to the district at any time, and to appeal any final adverse determination (Appeal of Moultrie, ___ Ed Dept Rep ___, Decision No. 12987, dated August 16, 1993; Appeal of Colas, 32 id. 128), the board of education must first be given the opportunity to consider new information and make a determination so that an appeal is ripe for review (see, 8 NYCRR 100.2[4]). Because the petition seems to present for the first time new facts constituting a possible change in circumstances since respondent's July 15 determination, respondent must be given the opportunity to review the new facts upon which petitioner now seeks to have her children readmitted. Since there is no evidence that respondent was given such an opportunity, or ever issued a final determination based on the new facts presented here, the appeal is premature and must be dismissed.

THE APPEAL IS DISMISSED.

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