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Decision No. 14,351

Appeal of ISAIAH FENGER from action of the Board of Education of the Gilbertsville-Mount Upton Central School District regarding denial of admission.

Decision No. 14,351

(April 28, 2000)

Hogan & Sarzynski, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Gilbertsville-Mount Upton Central School District ("respondent") that at the time of his application for admission he was not a resident of the district, and its refusal to admit him as a student. The appeal must be remanded.

In September 1999, petitioner applied for admission to the Gilbertsville-Mount Upton Central School District as a twelfth grade student. At the time of his application, Isaiah was 17 years old, and apparently lived with his mother, JoLynne Fenger, in the Georgetown-South Otselic Central School District. Petitioner’s parents are divorced, and his father lives outside the state.

Based upon petitioner’s written application dated September 14, 1999, respondent’s superintendent, in a letter dated September 21, 1999, determined that petitioner was not entitled to attend the public schools of the district because he was not a resident, and found that his residence was that of his mother, outside the district.

This appeal was not commenced until March 2000. According to the petition, Isaiah Fenger was born on December 29, 1981, and is, therefore, no longer an infant, having reached the age of majority on December 29, 1999. The petition states that he currently lives at 2014 State Highway 8, Mt. Upton, New York, within the Gilbertsville-Mount Upton Central School District. He states that he currently receives no financial support from his parents.

In light of the significant fact that petitioner is now an adult, having attained his eighteenth birthday, I conclude that this matter should be remanded to respondent for a full review pursuant to 8 NYCRR "100.2(y).

Because this student has been out of school for a significant period of time, I consider it more expedient to remand this matter than to dismiss it. Dismissal would require another application for admission, and possibly another appeal (Appeal of Yattaw, 38 Ed Dept Rep 12, Decision No. 13,973). Under such circumstances, simple dismissal, in my view, would be inconsistent with judicial economy and justice.

THE MATTER IS REMANDED.

IT IS ORDERED that, within 20 days of this order, respondent make a new determination as to whether Isaiah Fenger is entitled to attend the schools of the district, and that prior to making such determination petitioner shall be afforded the full opportunity to submit any and all relevant information concerning his present age, current residency, and right to attend the schools of the district.

END OF FILE