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Decision No. 14,406

Appeal of CHRISTOPHER EMBLER and THERESA SCHWERBEL, on behalf of BRANDYN EMBLER, from action of the Board of Education of the Valley Central School District regarding residency.

Decision No. 14,406

(July 20, 2000)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Natalie J. Marshall, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Valley Central School District ("respondent") that their son, Brandyn, is not a district resident. The appeal must be dismissed.

Petitioners and Brandyn apparently lived at an apartment in respondent’s district when they enrolled Brandyn in respondent’s schools for the 1999-2000 school year. At some point during the school year, the family moved to a neighboring school district. Respondent notified petitioners that their residence was in question and convened a residency hearing on February 29, 2000. By letter dated March 2, 2000, respondent notified petitioners of its determination that Brandyn was not a district resident and was no longer eligible to attend its schools. Petitioners commenced this appeal and interim relief was granted on March 29, 2000.

Petitioners contend that they are in the process of constructing a house within respondent’s district and ask for a determination that they will be district residents. Respondent contends that its determination that petitioners are not district residents was not arbitrary or capricious.

The appeal must be dismissed. 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 D. F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Furthermore, for purposes of this statute, a person can have only one legal residence (Appeal of Morgan, 38 Ed Dept Rep 207, Decision No. 14,016; Appeal of Daniels, supra).

In this case, petitioners do not deny that they moved out of respondent's district and currently reside in a neighboring district. Accordingly, I find that respondent’s determination that petitioners were no longer district residents was not arbitrary, capricious or unreasonable.

As for petitioners’ request for a determination that they will become residents of the district when their new house is constructed, it must be dismissed as premature. It is well established that I will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of WNI Sales, 38 Ed Dept Rep 822, Decision No. 14,152; Appeal of Jacobson, 37 id. 75, Decision No. 13,808; Appeal of Sullivan, 23 id. 264, Decision No. 11,212). Petitioners are asking for a determination based upon events which may or may not occur in the future, the completed construction of a house and their move into that house. If, at some further date, petitioners do relocate to an address within respondent's district, they may apply to respondent for Brandyn’s admission at that time.