Appeal of M.L. and A.L., on behalf of their children R.L. and B.L., from of the Board of Education of the Hauppauge Union Free School District regarding residency.

Decision No. 17,365

(April 2, 2018)

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Hauppauge Union Free School District (“respondent”) that their children, R.L. and B.L. (“the students”), are not district residents.  The appeal must be dismissed.

According to the petition, petitioners divorced in 2014 and share “joint legal and residential custody” of the students.  Although the record does not indicate how long the students have attended school in respondent’s district, it appears that the students attended respondent’s middle school for the 2016-2017 school year. 

By letter dated November 15, 2016 (“November 15 letter”), respondent’s assistant superintendent notified petitioners of his determination that the students were not residents of the district and, therefore, not entitled to attend respondent’s schools without the payment of tuition.  The letter further indicated that the students would be excluded from school as of November 28, 2016.

The November 15 letter further stated that an administrative review had been held on October 26, 2016, to determine whether the students resided in respondent’s district.  According to the November 15 letter, petitioner M.L. asserted at the administrative review that he and petitioner A.L. shared custody of the students – “50/50.”  Specifically, petitioner M.L. alleged that the students spend Monday and Tuesday with petitioner A.L., who lives at an address outside of the district (the “out-of-district address”), and Wednesday and Thursday with petitioner M.L., who lives at an address within respondent’s district (the “in-district address”).  Petitioner M.L. further alleged that the students’ alternate weekends between petitioner A.L. and petitioner M.L.

The November 15 letter also summarized surveillance conducted by respondent.  On three mornings when the students were, in accordance with the custody schedule detailed above, scheduled to be with petitioner M.L. at the in-district address, respondent conducted surveillance at the out-of-district address. On all three occasions, petitioner A.L. and the students were observed leaving the out-of-district address and petitioner A.L. was subsequently observed “bringing” the students to respondent’s middle school.

Respondent contends that on November 21, 2016, petitioner M.L. met with the assistant superintendent, admitted that the students were living at the out-of-district residence and requested an additional thirty days before the students were excluded.  By letter dated November 22, 2016, the assistant superintendent informed petitioners that the students would be permitted to remain in respondent’s schools until December 23, 2016 but excluded thereafter unless petitioners furnished proof of residency in respondent’s district and allowed the district to conduct a home visit of whatever address petitioners identified as the students’ in-district address.  The letter indicated that if petitioners failed to meet those two conditions, the students would be excluded from the district as of January 3, 2017.  This appeal ensued. 

Petitioners argue that the superintendent did not consider certain factors when making his decision to exclude the students from the district.  Petitioners aver that the out-of-district address is “a rental” and that “the landlord has initiated various holdover proceedings for eviction which ... have been unsuccessful.”  Petitioners also aver that “two extensions were being added” to the in-district residence and “the disreputable builder involved virtually destroyed the property.”  Petitioners allege the construction at the property is not “appropriate” for the students and, therefore, they are temporarily residing at the out-of-district address.  Petitioners further aver that petitioner A.L. is in the process of purchasing the in-district address from petitioner M.L., and that the students will “return home” to the in-district address thereafter.

Respondent argues that the appeal must be dismissed as moot, and because petitioners served two separate verified petitions on respondent, one verified by petitioner M.L. and the other by petitioner A.L. 

By letter dated December 9, 2016, my Office of Counsel directed respondent, pursuant to §276.5 of the Commissioner’s regulations, to submit an affidavit or affirmation indicating whether it would permit the students to remain enrolled in the district beyond January 3, 2017.  By affirmation dated December 27, 2016, respondent’s counsel stated that the assistant superintendent spoke with petitioner M.L. who indicated that “the house was not ready for a walk through but that it would be ready before the [winter] vacation ends.”  Additionally, respondent stated that if the students’ father did not provide proof of residency and allow the walk through prior to January 3, 2017, the students would be excluded from the district. 

By letter dated January 17, 2017, my Office of Counsel directed respondent, pursuant to §276.5 of the Commissioner’s regulations, to submit an affidavit or affirmation indicating, among other details, whether respondent intended to exclude the students, and if so, when.

By affirmation dated January 18, 2017, respondent’s counsel stated that petitioner M.L. had provided “proof on a weekly basis that the [students] are residing in [a] hotel” located within respondent’s district and that it was continuing to allow the students to remain enrolled in its schools as long as petitioner continues to provide proof that they still reside within the district.[1] 

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).

Therefore, because the facts upon which the appeal is based have changed such that the parties now agree that the students currently reside within respondent’s district and are entitled to attend its schools, any discussion of petitioners’ previously existing arrangement would be academic.  The appeal must therefore be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE