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Decision No. 14,812

Appeal of ANGELICA GIMENEZ, on behalf of her daughters ELSA, KAREN, and MARIANELA, from action of the Board of Education of the Valley Stream Union Free School District Thirteen regarding residency.

Decision No. 14,812

(October 18, 2002)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Union Free School District Thirteen ("respondent") that her daughters, Elsa, Karen, and Marianela, are not district residents. The appeal must be dismissed.

Petitioner and her three daughters resided in respondent's district until April 1, 2002. By letter dated April 15, 2002, petitioner informed respondent's superintendent of her move and requested that her children be permitted to complete the 2001-2002 school year at respondent"s schools. By letter dated April 19, 2002, the superintendent advised petitioner that her daughters would be permitted to continue at respondent"s schools through April 26, 2002, but denied her request that they be permitted to complete the school year. On April 29, 2002, petitioner commenced this appeal and requested interim relief directing respondent to permit her children to complete the school year. On May 8, 2002, petitioner"s request for interim relief was granted.

Petitioner admits that she and her daughters no longer reside in respondent's district, but asserts that a move to a new school for the remaining weeks of the school year would irreparably harm her daughters. Respondent asserts that petitioner's claim of irreparable harm does not overcome the district's right to exclude nonresidents.

The Commissioner of Education will only consider 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 only relief that petitioner sought was for her daughters to complete the 2001-2002 school year in respondent's district. Since that relief was granted in an interim order, the matter is now moot.

Even if the appeal was not dismissed as moot, it would 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 her daughters reside outside respondent"s district. Accordingly, I find that respondent"s determination that her daughters are not district residents was not arbitrary, capricious or unreasonable and should not be set aside.

THE APPEAL IS DISMISSED.

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