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Decision No. 13,579

Appeal of ARACELY CALDERA, on behalf of her daughter, JANNET GUERRERO, from action of the Board of Education of the Westbury Central School District regarding residency.

Decision No. 13,579

(March 21, 1996)

Angela Divaris, Esq., attorney for petitioner

Mastroianni & Mastroianni, Esqs., attorneys for respondent,

Tomasina Cuda Mastroianni, Esq., of counsel

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

Petitioner is a resident of the Westbury Central School District. She and her daughter previously resided in the Hempstead Union Free School District. The facts are in significant dispute regarding Jannet's registration. Petitioner states that she first attempted to register her daughter in respondent's schools on or about April 1995, making four separate attempts. She initially brought her daughter's birth certificate, immunization records, school transfer records, a notarized letter from her landlord and two household bills in her landlord's name. Petitioner claims that she again attempted to register her daughter two times in September 1995 at respondent's Dryden Street School. As directed by respondent on one of her previous registration attempts, this time she also brought a bill with her name and address on it. Petitioner states that respondent's employee told her that she would now also have to bring in her landlord's tax statement. Petitioner's mother and sister then went to the Dryden Street School to attempt to register Jannet. They were told that petitioner must bring the landlord's tax statement, a recent notarized affidavit and bills addressed to petitioner at the district address.

According to petitioner's version of the facts, she again went to the Dryden Street School on October 23, 1995, with a new letter she had obtained from her landlord dated October 17, 1995, stating that petitioner resided at an address in the district. This time, district personnel informed petitioner that they needed further documentation of residency, and that they would contact her landlord directly and investigate her residency. Petitioner commenced this appeal on October 25, 1995 and requested interim relief pending a determination on the merits.

Respondent's version of the events differ markedly from petitioner's. Respondent claims that petitioner initially contacted the district regarding her daughter's enrollment on May 8, 1995. A bilingual secretary assisted petitioner and informed her that the transfer form she presented from the Hempstead Union Free School District lacked the child's immunization record. The secretary then advised petitioner that a current physical examination form would be required to complete the registration process, along with proof of residence. Respondent claims that petitioner never returned for the remainder of the 1994-95 school year to complete Jannet's registration.

Respondent sent a follow-up letter dated August 8, 1995 to petitioner. Respondent claims that petitioner appeared at the school office sometime between August 24 and September 6, 1995. Petitioner brought a copy of a complete physical examination form dated August 23, 1995 with proof of immunization. School personnel informed petitioner that as of July 1, 1995, individual schools were no longer handling registrations, and directed petitioner to respondent's Central Registration Office located at the Dryden Street School. Respondent acknowledges that petitioner sent a representative to that school on September 29, 1995 to register Jannet. On October 23, 1995, petitioner went to respondent's Central Registration Office to register her daughter.

At that point, respondent's director of pupil personnel services became involved. She directed a district employee to contact petitioner's landlord and engage the services of the district's investigator to determine Jannet's residency. When contacted, petitioner's landlord stated that she would not sign any document or affidavit on petitioner's behalf because petitioner would be moving from the residence on November 1, 1995. On October 31, 1995, petitioner again appeared at the Central Registration Office and informed respondent's representative that she was no longer planning to move from her residence. On November 1, 1995, the district's investigator returned to the landlord's home and the landlord agreed to sign respondent's landlord affidavit. On November 2, 1995, respondent's investigator submitted his report along with the landlord's affidavit and a copy of the deed to the property. On Friday, November 3, 1995, respondent's representative contacted petitioner to inform her that she could enroll Jannet in respondent's school. Petitioner enrolled her daughter on Tuesday, November 7, 1995 in the Park Avenue School. Petitioner's counsel withdrew petitioner's request for interim relief pending a determination on the merits based on the fact that Jannet was admitted to school.

Petitioner seeks a determination that respondent acted unlawfully and in bad faith with regard to her residency. She requested compensatory education for the time her daughter was wrongfully excluded from school. Petitioner seeks a finding that the district's registration practices are unlawfully restrictive and discriminatory. She also requests a determination that the threshold requirement of an enumerated list of necessary documents denies a public education to bona fide residents of the district who are unable to provide such documents.

Respondent raises a number of procedural objections to the appeal, including mootness, since the district has admitted petitioner's daughter. Respondent also claims the appeal is premature, since petitioner never sought a determination from respondent's board, and that it fails to state a cause of action because the allegations are vague and unclear. Respondent contends that petitioner has failed to establish that its registration requirements and procedures resulted in the denial of her daughter's admission to school and that petitioner fails to prove that respondent's practices are unlawful under the Education Law. Finally, respondent contends that the delay in registering Jannet was petitioner's fault, not respondent's.

Before reaching the merits, I will address respondent's mootness argument. The Commissioner of Education will only decide matters in actual controversy and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Brown, 34 Ed Dept Rep 33; Appeal of Paye, 33 id. 241; Appeal of Vachon, 28 id. 276). Since respondent has determined that Jannet is a resident of the district and she has enrolled in school, the appeal is moot.

However, in view of the circumstances of this case, I am compelled to comment on petitioner's claim that respondent's registration procedures are onerous and discriminate against a class of people who do not possess certain documents that respondent requires. I am particularly troubled by petitioner's allegations that she needed to produce her landlord's tax statements before her daughter would be admitted to school. I am hard pressed to see the relevance of such documents for the purpose of demonstrating petitioner's residence. Respondent appears to believe that it can hold landlords responsible for the payment of tuition for their tenant's children who are not district residents, and the affidavit form respondent presented to petitioner's landlord appears to indicate the same. However, there is no legal basis to permit a school district to recover the tuition costs for a nonresident student from the landlord of the student's parent or guardian. While Education Law '3202(2) permits a school district to charge the parent or guardian of a nonresident student tuition in order for the student to attend school in the district (Appeal of Cippitelli, 34 Ed Dept Rep 348; Appeal of Villefranche, 34 id. 52), it does not provide a mechanism to recover tuition costs from third parties.

Although I am sympathetic to respondent's concerns that it provide educational services only to bona fide district residents, respondent cannot exclude bona fide district residents who are unable to produce documents from a prescribed list in an effort to shortcut the case by case analysis necessary to ascertain a particular student's residency. In this case, petitioner is a non-English speaking individual who did not own her own home or lease an apartment. She was, therefore, unable to provide the documents that respondent required to prove her residency. As respondent is aware, my Office of Counsel has reviewed respondent's registration materials and reminded respondent that it must be flexible in making residency determinations when individuals are not in traditional living arrangements and cannot provide standard proofs of residency. Although respondent claims that it is flexible, the record in this case proves otherwise, since the documentation initially provided by petitioner, was sufficient to notify respondent that petitioner resided in the district.

I have reviewed the parties' remaining contentions and find them without merit.