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Decision No. 14,612

Appeal of CLAUDIUS TOBIAS, on behalf of CLAUDE TOBIAS, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,612

(August 3, 2001)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that his son, Claude, is not a district resident. The appeal must be dismissed.

Respondent apparently began investigating Claude"s residency after notices sent to the family"s purported address were returned indicating that the family had moved to a Far Rockaway address, outside respondent's district. By letter dated October 25, 2000, Frederick C. Raulli, respondent"s administrative assistant to the superintendent, informed petitioner that the district had determined that Claude was not entitled to attend respondent's schools because he was not a district resident. Petitioner"s appeal of that determination prompted a November 22, 2000 residency hearing, at which petitioner admitted that he no longer lived in the district, but indicated his intention to return there when he finds suitable living arrangements. By letter dated December 21, 2000, William Niles, respondent"s administrative review officer who conducted the residency hearing, informed petitioner that he had determined that Claude was not a district resident and therefore not entitled to attend district schools. The letter further informed petitioner that Claude would be excluded from Elmont Memorial High School effective January 26, 2001. This appeal ensued.

By letter dated February 28, 2001, respondent notified my Office of Counsel that its superintendent had authorized Claude to finish the school year in the district but requested a decision on the merits because it intends "to pursue a tuition claim" against petitioner.

According to the petition, Claude was a senior at Elmont Memorial High School and was scheduled to graduate at the end of the 2000-01 school year. Petitioner asserts that Claude resided in respondent"s district from September 1997 until September 2000, when, due to "circumstances beyond [the family"s] control," the family moved to 2237 Dix Avenue, Far Rockaway, outside respondent"s district. Petitioner, nevertheless, sought an interim order requiring respondent to admit Claude to the district"s schools for the remainder of the school year on the grounds that excluding him four months before his anticipated graduation would create an "undue hardship."

In its answer, respondent asserts that it rationally determined that petitioner"s son is not a district resident. Respondent also raises a number of procedural defenses, claiming that the appeal is untimely and the petition is unverified and does not contain a notice of petition.

In response to an inquiry from my Office of Counsel, respondent confirmed by letter dated July 2, 2001 that Claude did, in fact, graduate from respondent"s high school in June 2001.

The appeal must be dismissed. The Commissioner of Education only decides 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 a Student with a Disability, 39 Ed Dept Rep 45, Decision No. 14,169; Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101). Respondent has permitted Claude to finish the school year at Elmont Memorial High School, thereby providing petitioner with the relief he seeks. Respondent also confirms that Claude has, in fact, graduated from high school. These events have rendered the instant appeal moot.

Respondent, nevertheless, requests a decision on the merits because it intends to pursue a tuition claim against petitioner. However, the Commissioner of Education has no statutory authority to award student tuition (Appeal of Marino, 40 Ed Dept Rep 13, Decision No. 14,404; Application of Pierrelus, 37 id. 502, Decision No. 13,913). Therefore, any discussion of the merits would be advisory in nature. The Commissioner of Education does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Instone-Noonan, 39 Ed Dept Rep 413, Decision No. 14,275; Appeal of Weiss, 39 id. 69, Decision No. 14,176). Accordingly, the appeal must be dismissed. Respondent may, however, seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Board of Education of Lawrence Union Free School District v. Gaffney, 233 AD2d 357; Appeal of Marino, supra).

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