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Decision No. 17,175

Appeal of MAUDINE MORRIS, on behalf of her daughter ALEXA, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,175

(August 31, 2017)

Ingerman Smith L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals in relation to a determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter, Alexa, is not a resident of the school district ("district").[1]  The appeal must be dismissed.

Petitioner asserts that she and her daughter moved to respondent’s district sometime in 2015. The record indicates that petitioner’s daughter was enrolled in the district in March 2015.  By letter dated March 20, 2017, from respondent’s director of pupil services, petitioner was notified of the determination that her family did not reside within respondent’s school district and was provided an opportunity to substantiate her residency within the district.  At a March 28, 2017 residency meeting, petitioner allegedly admitted that she had purchased a home in the Freeport Union Free School District, but stated that she wanted her daughter to remain in respondent’s schools to “create a level of stability” for her child.  Petitioner subsequently was provided with information regarding respondent’s “Non-resident Student” policy, as well as tuition rates.  By letter dated March 28, 2017, respondent’s director of pupil services informed petitioner of the district’s determination that, based on her admissions and the district’s investigation, her child was not a district resident and, thus, was not eligible to receive education services as a resident.  The letter further stated that petitioner’s daughter would be excluded from school on March 31, 2017.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 11, 2017.

Petitioner admits that she no longer resides in respondent’s school district.  However, she requests that her daughter remain in the district’s schools “to complete the rest of her fourth grade school year, ending in June, 2017 ...” without payment of tuition. 

Respondent asserts that its residency determination was not arbitrary and capricious.  Respondent contends that, notwithstanding that petitioner only sought her daughter’s continued enrollment until the end of the 2016-2017 school year, a determination is warranted that it “acted reasonably in excluding the student,” in furtherance of “the [d]istrict’s ability to seek tuition reimbursement from [p]etitioner.”    

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  As relief, petitioner requests that her daughter be permitted to complete the 2016-2017 school year in respondent’s district without payment of tuition.  Respondent admitted petitioner’s daughter to school pursuant to the April 11, 2017 interim order and the school year is now over.  In addition, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Moreover, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).[2]

Although respondent admitted petitioner’s daughter pursuant to the April 11, 2017 interim order, it seeks a determination that it “acted reasonably in excluding the student,” presumably because respondent believes that petitioner should pay back tuition for her daughter’s attendance as a non-resident.  To the extent that respondent seeks a determination that petitioner’s daughter was not a district resident during any part of the 2016-2017 school year so as to enable it to seek tuition reimbursement in another forum, such determination would be advisory in nature (see e.g. Appeal of Strassburg, 56 Ed Dept Rep, Decision No. 16,931; Appeal of L.B. and T.B., 55 id., Decision No. 16,832; Appeal of O.S. and D.S., 50 id., Decision No. 16,201).  As there is no further relief to be granted herein, the matter is academic, and the appeal is dismissed as moot.

In light of the above disposition, I need not consider the parties’ remaining contentions.




[1] I note that petitioner has captioned the instant appeal as against the “Board of Education of the Nassau County School District.”  However, as noted by respondent, it is undisputed that the respondent in this matter is the Board of Education of the Baldwin Union Free School District, and respondent does not object to the error.


[2] The April 11, 2017 interim order stated, “This order shall not preclude respondent from seeking tuition from petitioner or other responsible parties....”