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Decision No. 14,936

Appeal of ROSEMARY R. WILCOX, on behalf of her children CASSONDRA L. TAFT and HANNAH C. WILCOX, from action of the Board of Education of the Elmira Heights Central School District regarding residency.


Decision No. 14,936


(August 22, 2003)


Shull & Coyles, attorneys for respondent, Donald B. Coyles, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmira Heights Central School District ("respondent") that her children, Cassondra L. Taft and Hannah C. Wilcox, are not district residents.  The appeal must be dismissed.

By letter dated April 9, 2003, petitioner informed respondent"s superintendent that she and her daughters were living on Ridge Road in Horseheads, outside the district.  She also requested that the superintendent permit her children to remain in respondent"s schools until the end of the 2002-2003 school year.  By letter dated April 30, 2003, the superintendent notified petitioner that respondent would permit the children to attend its schools as non-resident students for the remainder of the school year upon the payment of tuition on a pro-rated basis. 

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 Berkman, 43 Ed Dept Rep ___, Decision No. 14,921; Appeal of Baronti, 42 id. ___, Decision No. 14,802; Appeal of Schrader 42 id. ___, Decision No. 14,771).  Thus, to the extent that petitioner requests that her children be permitted to attend school in respondent"s district through the end of the 2002-2003 school year, the appeal is moot because the school year has ended (Appeal of Bryan, 40 Ed Dept Rep 152, Decision No. 14,445).   

Even if the appeal were not dismissed on procedural grounds, it would 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 Cuesta, 42 Ed Dept Rep ___, Decision No. 14,755; Appeal of L.W., 41 id. 372, Decision No. 14,717).  A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of L.W., supra; Appeal of Donohue, 41 Ed Dept Rep 26, Decision No. 14,601).  Petitioner admits that she and her children are residing outside the district.  While she alleges that their residence is temporary and that she is seeking housing within respondent"s district, petitioner presents no evidence in support of this claim.  Consequently, respondent"s determination that the children are not district residents was not arbitrary, capricious or unreasonable.