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Decision No. 16,288

Appeal of JIANEN XU on behalf of his children YU and HUI XU, from action of the Board of Education of the Great Neck Union Free School District regarding the residency.

Decision No. 16,288

(August 17, 2011)

Law Office of Ming Hai, P.C., attorneys for petitioner, Charles Jefferson Spraggins, Jr. Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals from a decision of the Board of Education of the Great Neck Union Free School District (“respondent”) that his sons, Yu and Hui Xu, are not district residents.  The appeal must be dismissed. 

In August 2007, petitioner enrolled his two sons in respondent’s schools from an address in the district (“Great Neck address”).  At that time, petitioner submitted two affidavits, his own and one from a Mr. Chen attesting that petitioner and his sons were residing with Mr. Chen, at the Great Neck address.  He also submitted a power of attorney letter signed by Yu and Hui’s mother, authorizing petitioner to relocate with the children to the United States for education purposes.

In November 2009, the district registrar received a telephone call from the high school assistant principal reporting that one of petitioner’s sons stated to a staff member that both of his parents live in China.  In addition, attempts by a guidance counselor to contact petitioner had been unsuccessful.  The registrar contacted Mr. Chen, who informed him that petitioner was in China, but that Mr. Chen had legal guardianship of petitioner’s children.  The registrar requested documentation.  Mr. Chen provided a power of attorney from petitioner, but it had expired.

By letter dated November 9, 2009, the registrar notified petitioner that his sons were not district residents and would be excluded from school on November 20, 2009.  Petitioner was provided an opportunity to submit additional information regarding residency and, on November 18, 2009, petitioner and Mr. Chen met with the registrar.  Petitioner provided various documents in support of his residency, including a letter from his employer in New York City stating that he was assigned to China as a project manager.  Petitioner stated that he traveled for work, but that he would change his schedule to be present in the district.  Based on this information, the registrar determined that petitioner and his sons were district residents and permitted the boys to continue to attend school.

In April 2010, however, the registrar was informed by staff that petitioner was continuously living in China and that Mr. Chen was caring for the children.  By letter dated April 22, 2010, the registrar notified petitioner of her determination that his sons were not district residents and were excluded from school as of May 1, 2010.  Petitioner again was provided an opportunity to present information.  On May 4, 2010, petitioner met with the registrar to discuss his residency.   By letter dated May 4, 2010, the registrar determined that petitioner and his children were not district residents.

On May 11, 2010, petitioner appealed the decision to respondent and submitted a lease agreement and proof of rental payments.  By letter dated June 8, 2010, respondent denied the appeal and notified petitioner that his children would be excluded from school, effective June 26, 2010.  This appeal ensued.  Petitioner’s request for interim relief was granted on July 26, 2010, in part, directing respondent to admit Yu to school.  No interim relief was granted as to Hui, who was 21 years of age. 

Following submission of the pleadings in this appeal, respondent requested permission to submit additional papers.  Respondent’s “second Sur-Reply” was accepted and included additional evidence indicating that, during another residency investigation, respondent discovered that petitioner and his sons no longer resided at the Great Neck address.  Petitioner was afforded the opportunity to respond.  By letter dated September 27, 2010, petitioner’s counsel submitted information confirming that petitioner and his family had moved out of the Great Neck address in the summer of 2010.  However, petitioner did not wish to withdraw the appeal.  

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner and his sons left respondent’s district in the summer of 2010.  Petitioner’s request for a determination that his sons are district residents who are entitled to attend respondent’s schools is, therefore, academic since petitioner no longer asserts that they reside in the district. 

To the extent that petitioner seeks to maintain this appeal to demonstrate residency for tuition purposes, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Therefore, the appeal must be dismissed as moot.