Sara B. Baughan, Esq., attorney for petitioner

Zicari, McConville, Cooman, Morin & Welch, P.C., attorneys for respondent Brighton, Peter J. Weishaar, Esq., of counsel

Louis N. Kash, Esq., attorney for respondent Rochester, Donald T. Schmitt, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Brighton Central School District ("respondent Brighton") that it is not responsible for the provision of educational services pursuant to a designation under Education Law '3203. The appeal must be sustained.

Petitioner is the parent of a student with a disability who resides in Rochester, New York, but whose property is intersected by the boundary dividing the Brighton Central School District and the City School District of the City of Rochester ("respondent Rochester"). On or about July 16, 1990, petitioner designated the Brighton Central School District as her district of residence pursuant to the option available under Education Law '3203, although respondent Rochester's memorandum of law indicates that petitioner made this designation on or about May 23, 1988. On February 24, 1996, petitioner filed a request for transportation for her child to a nonpublic high school. Respondent Brighton's transportation director returned petitioner's application and in a letter dated March 27, 1996, informed petitioner that since her legal residence was located in the Rochester City School District, respondent Brighton declined to provide transportation.

Petitioner resubmitted the transportation application on April 5, 1996 along with a copy of her original designation of the Brighton Central School District as her district of residence. On April 17, 1996, respondent Brighton's director for administrative services denied petitioner's transportation request and in that letter explained that although the Rochester City School District would reimburse respondent Brighton for the school tax portion of petitioner's city tax bill if the student attended Brighton schools, respondent Rochester would not reimburse respondent Brighton for providing transportation for petitioner's child to a nonpublic school because respondent Rochester determined that it was not legally required to do so. By letter dated April 20, 1996, petitioner wrote to respondent Brighton requesting a copy of the legal opinion of respondent Rochester's counsel on this matter and requested information regarding the proper appeal process to New York State.

By letter dated April 29, 1996, respondent Brighton directed petitioner to Suzanne Spear, an employee of the State Education Department, regarding an appeal of its decision. On May 3, 1996, petitioner's husband wrote to Ms. Spear requesting assistance in appealing respondent Brighton's decision. By letter dated May 4, 1996, petitioner and her husband requested that respondent Brighton consider petitioner's transportation request. By letter dated May 16, 1996, respondent Brighton determined that it would deny petitioner's request because its interpretation of Education Law '3203 did not require the district to provide transportation services. Petitioner's husband sent a letter to respondent Brighton dated May 20, 1996 expressing his concern that the matter had not yet been resolved and that discussions were ongoing between the district and the State Education Department. Petitioner's husband also sent a letter dated May 21, 1996 concerning respondent Brighton's determination at its May 14, 1996 meeting to deny his daughter all services while she attends a nonpublic school. After discussions were discontinued between respondent Brighton and the State Education Department, petitioner commenced this appeal on June 6, 1996. Petitioner's request for interim relief pending a determination on the merits was granted on June 20, 1996. On November 20, 1996, pursuant to 8 NYCRR 275.1, the City School District of the City of Rochester was joined as a party to this appeal.

Petitioner alleges that, consistent with Education Law '3203, she designated the Brighton Central School District as her district of residence and is therefore entitled to all services from that district based on the designation. As a procedural matter, respondent Brighton requested that the City School District of the City of Rochester be joined as a party to these proceedings. Respondent Brighton contends that its interpretation of Education Law '3203 is correct and that the student is not a resident of respondent Brighton's district under that statute. Respondent Brighton seeks a determination that the student is a resident of the Rochester City School District and that the City school district is responsible for all educational services since petitioner's dwelling is located in the city school district. If the Commissioner determines that respondent Brighton must provide all services to petitioner, respondent Brighton seeks an order that respondent Rochester be required to pay to respondent Brighton the real property taxes paid by petitioner to respondent Rochester. In its memorandum of law, respondent Brighton contends that the appeal is moot since petitioner determined, after this appeal was commenced, to send her daughter to respondent Brighton's public schools for the 1996-97 school year. Respondent Rochester contends that the appeal is moot and that it is not liable to pay school taxes to respondent Brighton unless petitioner enrolls her daughter in respondent Brighton's schools.

Before reaching the merits, I will address respondents' mootness argument. Subsequent to the filing of this appeal, petitioner determined to send her daughter to respondent Brighton's schools, since the instant dispute was not resolved and petitioner was concerned that she would disrupt her daughter's education in mid-year if her appeal was dismissed. Respondent Brighton contends that since petitioner enrolled her daughter in public school, the appeal is therefore moot since it acknowledges its obligation to educate petitioner's daughter, and the provision of transportation services to a nonpublic school is no longer at issue. Petitioner asserts that the appeal is not moot since she needs to know whether she can enroll her daughter in a nonpublic school and receive transportation and other special education services from respondent Brighton.

The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exist or which subsequent events have laid to rest (Appeal of Stopka 34 Ed Dept Rep 157; Appeal of Langenmayr, 30 id. 322). While the record appears to indicate that petitioner's daughter is no longer in need of transportation and other educational services for the 1996-97 school year, the issue of which district was responsible for transportation and the cost of related services for the 1994-95 and 1995-96 school years is still at issue, as well as petitioner's future right to services if she decides to enroll her daughter in a nonpublic school. In addition, this appeal raises important educational issues regarding the interpretation of Education Law '3203. Therefore, I decline to dismiss the appeal as moot.

Turning to the merits, Education Law '3203(1) provides, in pertinent part:

Petitioner contends that she designated the Brighton Central School District as her school district of residence in 1990, that she has not changed her designation and that she is therefore entitled to transportation services from respondent Brighton. Respondent Brighton's argues that petitioner's designation was no longer valid once petitioner "disenrolled" her daughter in its schools by enrolling her in a nonpublic school in the 1994-95 school year. Education Law '3203(3) provides:

The record reveals that petitioner designated the Brighton Central School District as her district of residence on July 16, 1990. Since that time, petitioner has taken no steps to change her designation and that designation has not been otherwise effected by action of the district superintendent in altering the school district boundaries. Contrary to respondent Brighton's assertion, nothing in Education Law '3202 provides that a student becomes "disenrolled" from a validly elected district upon enrollment in a nonpublic school. I, therefore, reject respondent Brighton's interpretation of Education Law '3203 and find that the Brighton Central School District remains petitioner's district by designation. Having determined that petitioner's designation remains valid, I will address respondent Brighton's contentions concerning the boundary intersection and its obligation to provide transportation and other related educational services.

By Chapter 13 of the Laws of 1985, Education Law '3203 was specifically amended to clarify that, when anyportion of a property on which a single family dwelling is located is intersected by the boundary dividing two school districts, the owner of the property may designate either district as the district of attendance for children residing in the dwelling. The facts are not in dispute that petitioner's backyard is intersected by the boundary dividing the Brighton Central School District and the Rochester City School District. The record further reveals that 35 other parcels bordering the two districts are similarly intersected. Therefore, I find that petitioner was clearly entitled to designate a district of attendance in conformity with Education Law '3203.

Respondent Brighton asserts that under Education Law '3203, the district is only required to provide services to petitioner's child if she attends its public schools, and that if petitioner chooses to enroll her child in a nonpublic school, the district is not responsible for the provision of transportation and other educational services. Respondent Brighton argues that its interpretation is based on its plain reading of the terms "designating a school", "school privileges" and "tuition" as used in the statute. On the basis of that interpretation, respondent Brighton determined that it was not required to provide the services petitioner requested.

I have reviewed the record in this case and conclude that respondent Brighton's interpretation of Education Law '3203 is incorrect. Although both respondents argue that the statute only serves to identify a district of attendance and not the right to specific educational services, I reject that argument. The statute states that "...such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition" [Education Law '3203(1); Matter of Roland Crowe, et al. v. F. Garth MacFarland, et al., BOE, Canajoharie CSD, 138 AD2d 788]. Clearly, the statute functions to determine a student's residence where that residence is not clear. Furthermore, "courts are not required to give a statute a narrow meaning which defeats the general purpose and manifest policy intended to be promoted" (Grayson v. Town of Huntington, 144 Misc.2d 1064).

An examination of the legislative history of Chapter 309 of the Laws of 1932 indicates that Education Law '567-a (the predecessor to Education Law '3203) was created to clarify residency in those situations in which dwellings were intersected by the boundary between two school districts. The bill jacket for that legislation contains a memorandum for the Governor from the Deputy Commissioner and Counsel to the State Department of Education that discussed a 1931 decision by the Commissioner of Education which concerned the selection of a school for attendance when a district boundary intersects a dwelling and the need to clarify the law in such situations. In Matter of Chandler, 40 St. Dept. 510, the Commissioner determined that the student was a legal resident of the union free school district that her parent had chosen as his district of residence. The effect of the designation was to identify a district of residence when that residence was unclear because the property was intersected by district boundaries. The Legislature apparently adopted the Commissioner's reasoning in Chandler in the Education Law by Chapter 309 of the Laws of 1932.

To accept respondent Brighton's interpretation and limit services provided to a designee would result in a class of individuals who have fewer rights than other residents of New York State to a public education as provided under Education Law '3202. Therefore, based on my review of the statutes, case law and legislative history, I conclude that petitioner is entitled to all rights and benefits that any legal resident of the district would receive.

Finally, respondent Brighton requests that should I find that it is the district responsible for providing services to petitioner's child, that I order respondent Rochester to pay over city school taxes it has collected from petitioner. Section 3203(2) provides:

Since I have determined that respondent Brighton was petitioner's designated district of residence and required to provide all educational services, and since respondent Rochester collected and received all city taxes paid by petitioner, I hereby order respondent Rochester to pay over to respondent Brighton any taxes received from petitioner for the 1994-95 and 1995-96 school years.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Brighton provide all educational services to petitioner's child, and

IT IS FURTHER ORDERED that the Board of Education of the City School District of the City of Rochester pay school taxes to the Brighton Central School District for property owned by petitioner at 1925 Highland Avenue, Rochester for the 1994-95 and 1995-96 school years.

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