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Decision No. 14,802

Appeal of LYNN and STEVEN BARONTI, on behalf of their children JULIA and STEVEN, JR., from action of the Board of Education of the Blind Brook-Rye Union Free School District regarding residency.

Decision No. 14,802

(August 28, 2002)

Keane & Beane, P.C., attorneys for respondent, Susanna L. Mould, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Blind Brook-Rye Union Free School District ("respondent") that their children, Julia and Steven, Jr., are not entitled to attend the district"s Bruno M. Ponterio Ridge Street School without the payment of tuition. The appeal must be dismissed.

On or about May 2, 2002, petitioners moved from their home in respondent"s district to a new home in the Bedford Central School District. On or about May 7, 2002, petitioners notified their children"s teachers of their new address and phone number. That day, the district"s business official contacted Mr. Baronti by telephone to explain the district"s nonresident tuition policy and to inform petitioners that they would have to pay tuition if they continued to send their children to the district"s school. The district"s policy #5152 provides in the last paragraph of section III:

The Board of Education may permit students currently resident in the District who are relocating outside the District to continue as tuition students for a limited time, provided space is available and behavior is appropriate.

According to respondent, another conversation, a meeting and a letter followed this initial conversation on May 7. The business official also informed petitioners that if they did not pay tuition, their children would be excluded from the district"s schools. This appeal ensued. Petitioners" request for interim relief was granted on June 7, 2002.

Petitioners contend that: they were not given notice of respondent"s policy; the policy was enacted without public input and notice; the superintendent has authority to waive the tuition requirement for elementary students who move out of the district; the policy is ambiguous regarding the availability of waivers; respondent violated their due process rights; and respondent acted arbitrarily and capriciously. Petitioners request that their children be permitted to attend the district"s school for the remainder of the 2001-2002 school year and that respondent be restrained from collecting tuition.

Respondent contends that the petition fails to state a claim upon which relief may be granted since petitioners admit that they reside outside the district. Respondent also asserts that its policy to charge tuition for nonresident students is authorized under Education Law "3202(2), was properly and publicly enacted, and properly applied to petitioners.

I will first address respondent"s request to file a supplemental affidavit and exhibit. As the affidavit and exhibit are offered in response to certain allegations in petitioners" reply and there is no objection from petitioners, I will grant respondent"s request.

To the extent that petitioners seek to have their children complete the school year in respondent"s district, the appeal must be dismissed as moot. 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 Schrader 42 Ed Dept Rep ___, Decision No. 14,771; Appeal of Tobias, 41 id. ____, Decision No. 14,612). Petitioners" request that their children be permitted to complete the 2001-2002 school year in respondent"s district was granted by the Commissioner"s June 7, 2002 interim order. As the school year has ended, no further meaningful relief can be granted (Appeal of Bryan, 40 Ed Dept Rep 152, Decision No. 14,445).

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 Thomas, 41 Ed Dept Rep ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603; Appeal of Lapidus, 40 id. 21, Decision No. 14,408). A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177).

Petitioners admit that they moved out of respondent"s district on or about May 2, 2002. Consequently, respondent"s determination that their children were not eligible to attend its school was not arbitrary, capricious or unreasonable and will not be set aside.

In light of the above disposition, I decline to address the parties" remaining arguments. I note, however, that school districts are entitled to charge tuition for nonresident students attending public schools in their district (Education Law "3202(2); 8 NYCRR "174.2). Tuition is computed according to a formula established by the Commissioner (8 NYCRR Part 174). However, the Commissioner has no statutory authority to make a finding awarding student tuition (Appeal of Zavetsky, 40 Ed Dept Rep 517, Decision No. 14,543; Appeal of Smith, 40 id. 126, Decision No. 14,438). Respondent may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Bd. of Educ. of Lawrence Union Free School District v. Gaffney, 233 AD2d 357).