Decision No. 13,546

(February 5, 1996)

MILLS, Commissioner.--Petitioner appeals the determination of the Baldwin Union Free School District ("respondent") to exclude her children from its schools on the basis of residency. The appeal must be sustained in part.

Gary Priestley, a senior, and Lindsey Priestley, a seventh grader, have attended school in respondent district since the 1988-89 school year. On October 6, 1995, respondent notified petitioner that her children would be excluded from school because petitioner was not a district resident. It alleged that she did not live on Wood Park Drive in Baldwin as she had indicated, but that she lived on Cramer Court within the Roosevelt Union Free School District. This conclusion was based upon the report of district investigators who saw both children leaving the Cramer Court residence for school at approximately 7:30 a.m. and Lindsey returning to that address after school at approximately 3:20 p.m.

At a conference with district administrators, petitioner provided her driver's license, auto registration, insurance papers, and her son's driver learning permit as evidence of her Baldwin residence. She indicated that she ran a family day care center at the Cramer Court address, which was her husband's residence. Because she needed to be there by 7 a.m., her children went to work with her, then left for and returned from school to that address. On October 18, 1995, respondent notified petitioner that her children would be excluded from school as of October 20 because it had determined that she was not a resident of the district.

On November 10, 1995, at petitioner's request, I granted a stay directing respondent to permit Gary and Lindsey to attend school in Baldwin pending a determination on the merits of this appeal. On December 12, 1995, I denied respondent's request to vacate the stay. Respondent based its request upon further surveillance at both addresses which indicated that on four dates, investigators saw no one leave Wood Park Drive nor arrive at Cramer Court between approximately 5:30 a.m. and 7:30 a.m., at which time the children were seen leaving Cramer Court for school. Respondent also indicated that on November 21, 1995, petitioner withdrew Lindsey from respondent school district to enroll her in the South Shore Christian School.

Petitioner contends that she and her children live with her sister on Wood Park Drive in the Baldwin school district. She maintains that she runs a family day care center at her husband's residence on Cramer Court in the Roosevelt school district, and that because of her long hours, her children leave for school from the Cramer Court address and return there after school. She acknowledges that her children also spend time at that address with their father (petitioner's husband) on weekends, and that she occasionally spends the night at the Cramer Court residence.

Petitioner further contends that respondent cannot exclude Gary from school under the terms of its own policy. According to that policy, a student who becomes a nonresident in his senior year may continue to attend school in the district tuition free if he completed grades nine through eleven in the district. Petitioner, therefore, contends that the district cannot exclude Gary if he became a nonresident in his senior year.

Respondent contends that petitioner fails to state a claim upon which relief can be granted. Respondent further contends that petitioner's claims are without merit and that petitioner is trying to evade respondent's nonresident policy. Respondent finally asserts that the district policy concerning seniors who become nonresidents is inapplicable to Gary because he did not become a nonresident when he was a senior, since he was not a district resident during the entire preceding school year.

As a preliminary matter, I find that this appeal must be dismissed as to Lindsey because it is moot. Respondent asserted, and petitioner does not deny, that petitioner withdrew Lindsey from respondent school district on November 21, 1995. Since 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, the appeal is moot with respect to Lindsey Priestley (Appeal of Nash, 35 Ed Dept Rep ___, Decision No. 13,516 dated November 15, 1995; Appeal of Warner, 32 id. 533; Appeal of Langenmayr, 30 id. 322).

Respondent contends that petitioner fails to state a claim upon which relief can be granted. Commissioner's regulation '275.10 requires a petition to contain a claim showing that petitioner is entitled to relief and a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioner's claim and the act(s) complained of. Petitioner's claims against respondent and the relief requested are apparent and respondent addressed those claims in its answer. Therefore, I will not dismiss this appeal for failure to state a claim.

Respondent alleges that petitioner is attempting to evade respondent's nonresident policy. Education Law '3202(1) provides in pertinent part:

The purpose of that 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 Allen, 35 Ed Dept Rep 112, Appeal of Warburton, 35 id. 74). Section 100.2(y) of the Commissioner's regulations sets forth the procedures to be followed by the board of education in determining the residency of a student. Where proper procedures have been followed, a district's determination as to the residence of a child will not be set aside unless it is shown to be arbitrary or unreasonable (Appeal of Allen, supra; Matter of Wadas, 21 Ed Dept Rep 577; Matter of Buglione, 14 id. 220).

However, in this case respondent's policy also provides that a senior who becomes a nonresident may continue to attend school in the district tuition free if that student completed grades nine through eleven in the district. Therefore, I need not reach the question of Gary's residency. In view of the district's October 1995 determination that Gary is a nonresident and the undisputed fact that he completed grades nine through eleven in respondent school district, he is entitled to continue to attend school in the district tuition free for his senior year in accordance with respondent's policy.

Respondent's allegation that Gary did not become a nonresident during his senior year, but that he was a nonresident for the entire preceding year, is unsupported by any evidence in this record. There is no indication that respondent challenged Gary's residency before his senior year.

Similarly, respondent's reliance on Appeal of Curtin, 27 Ed Dept Rep 446, is misplaced. In that case, during a student's junior year she was found to be a nonresident. The Commissioner upheld the district's determination, but allowed her to complete her junior year in the district. The Commissioner clarified, however, that the student was finishing the year as a nonresident. Therefore, she would not be entitled to attend that district during her senior year as she would have, under district policy, if she had completed her junior year as a district resident. Here, since Gary's resident status was not challenged until his senior year, the Curtain decision is not applicable.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent shall permit petitioner's son, Gary Priestley, to continue in attendance without the payment of tuition.

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