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Decision No. 13,990

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Northport-East Northport Union Free School District regarding residency.

Decision No. 13,990

(August 18, 1998)

Ingerman, Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Northport-East Northport Union Free School District ("respondent") that her son is not a resident of the district. The appeal must be dismissed.

Petitioner resides at 21 Cherry Place, Huntington, which is not within respondent's district ("district"). Petitioner had formerly resided within the district, but moved to the Huntington address sometime prior to September 1997. Respondent allowed petitioner's son to remain enrolled in its schools based upon petitioner's prior residence in the district and her assertion that she was in the process of moving back to an address within the district. On November 3, 1997, respondent's high school principal wrote to petitioner and afforded her the opportunity to present documentation to prove her residence within the district. The principal wrote letters on December 17, 1997, January 8, 1998 and January 14, 1998 informing petitioner that her son would be excluded from the district's schools because petitioner had not yet produced the requested documentation. Petitioner's appeal to respondent's Executive Director of Pupil Services was denied on January 16, 1998. This appeal ensued. On February 10, 1998, the Commissioner denied petitioner's request for interim relief.

Petitioner contends that she will be moving back to respondent's district as soon as she is able to locate suitable housing. She alleges that she offered to pay tuition for her son, but that respondent stated that it did not accept nonresident students on a tuition-paying basis. Petitioner alleges that respondent admitted that it accepts tuition for foreign students. Petitioner argues that her son, as a student with a learning disability, will be adversely affected by removing him from respondent's schools. She requests that I issue an order permitting her son to continue in respondent's schools through the end of the 1997-98 school year.

Respondent contends that the appeal should be dismissed because petitioner is not a resident of the district. Respondent asserts that it does not accept tuition-paying nonresident students and only accepts tuition from certain foreign students, who reside within the district, who are required by federal law to pay tuition as a condition of the issuance of their visas.

The appeal must be dismissed as moot. It is well settled that the Commissioner 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 Schuler, 37 Ed Dept Rep 512; Appeal of Lawson, 36 id. 450). Petitioner only requests interim relief for the 1997-98 school year, which the Commissioner denied on February 10, 1998. As that school year has ended and the Commissioner had already ruled on the requested relief, the issues raised in the petition are moot.

The appeal must also 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 Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446). For the purposes of Education Law "3202, a person can only have one legal residence (Appeal of Elliott, 36 Ed Dept Rep 70; Appeal of Britton, 33 id. 198). Residence is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Elliott, supra; Appeal of Reifler, 31 Ed Dept Rep 235).

As noted above, in order to show that an individual has selected a particular location as his or her residence, that individual must both actually reside at that location and intend that such location be his or her permanent residence. Petitioner admits that she and her son are actually living outside the district. Consequently, respondent's determination that petitioner's son may not attend its schools was not arbitrary, capricious or unreasonable and will not be set aside.