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Decision No. 14,792

Appeal of ANNISHA ALI, on behalf of her daughter NAREESA, from action of the Board of Education of the Islip Union Free School District regarding residency.

Decision No. 14,792

(August 23, 2002)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Islip Union Free School District ("respondent") that her daughter, Nareesa, is not a district resident. The appeal must be dismissed.

Petitioner currently resides with her daughter in Hollis, New York, outside respondent"s school district. From September 1, 2001 through March 16, 2002, petitioner and her daughter resided with a friend on Spur Drive North within respondent"s school district. Petitioner"s daughter enrolled in Islip Middle School for the 2001-2002 school year. Petitioner indicates that, during that time, she was seeking housing within respondent"s district, but had to move back to her prior residence in Hollis on March 16, 2002 due to circumstances beyond her control. Petitioner subsequently requested that respondent"s superintendent permit her daughter to complete the 2001-2002 school year in respondent"s district, despite having moved from the district.

By letter dated April 8, 2002, respondent"s superintendent denied petitioner"s request, based on the determination that petitioner"s daughter was not a district resident. The superintendent indicated that petitioner"s daughter would be excluded from school as of April 19, 2002 and informed petitioner of her right to appeal the decision to the Commissioner of Education within 30 days. By letter dated April 19, 2002, the superintendent"s staff notified petitioner that her daughter would be permitted to remain in school in respondent"s district until April 26, 2002.

Petitioner commenced this appeal on April 15, 2002. As the sole relief, petitioner requested that I issue a stay directing respondent to continue to admit her daughter to its school for the remainder of the 2001-2002 school year. On May 6, 2002, I granted petitioner"s stay request.

Petitioner admits that she and her daughter do not reside in respondent"s district, but asserts that she is "looking into houses in the Islip district." Respondent contends that the determination that petitioner"s daughter is not a district resident is in all respects proper.

As a threshold issue, I find the appeal is moot. The Commissioner of Education will consider only matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Schrader, 42 Ed Dept Rep ___, Decision No. 14,771; Appeal of E.F., 42 id. ___, Decision No. 14,762). The sole relief sought in the petition herein consists of petitioner"s request for an interim order permitting her daughter to complete the 2001-2002 school year in respondent"s district. That relief was granted by my interim order of May 6, 2002. Inasmuch as the sole relief sought by petitioner has been obtained, the matter is moot.

Even if the appeal were not moot, it must be dismissed on the merits.

Education Law "3202(1) provides, in pertinent part:

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.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Curran, 42 Ed Dept Rep ___, Decision No. 14,772; Appeal of Brown, 42 id. ___, Decision No. 14,760; Appeal of L.W., 41 id. ___, Decision No. 14,717). A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Curran, supra; Appeal of James, 41 Ed Dept Rep ___, Decision No. 14,752). For the purposes of Education Law "3202(1), residence is established based upon two factors: physical presence as an inhabitant of the district and the intent to reside in the district (Appeal of Curran, supra; Appeal of Brown, supra; Appeal of Harmon, 40 Ed Dept Rep 4, Decision No. 14,401). Furthermore, for purposes of the statute, a person can have only one legal residence (Appeal of Metze, 42 Ed Dept Rep ___, Decision No. 14,768; Appeal of Silvestro, 40 id. 259, Decision No. 14,476).

Petitioner admits that she and Nareesa reside outside respondent"s district. Accordingly, I find that respondent"s determination that Nareesa is not a district resident was not arbitrary, capricious or unreasonable and should not be set aside. In the event that petitioner and her family relocate to respondent"s district at some future date, petitioner can reapply for Nareesa's admission to respondent"s schools at that time.

THE APPEAL IS DISMISSED.

END OF FILE