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Decision No. 16,951

Appeal of S.P., on behalf of her daughter N.P., from action of the Board of Education of the Monroe-Woodbury Central School District regarding residency.

Decision No. 16,951

(August 22, 2016)

Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Monroe-Woodbury Central School District (“respondent”) that her daughter is a district resident.  The appeal must be dismissed.

The record indicates that, at the time this appeal was commenced, N.P was a student in her senior year of high school in respondent’s district, and had been enrolled continuously since September 2004.  N.P.’s parents are divorced and, according to a Family Court order submitted with the petition and dated July 13, 2010, petitioner was awarded sole legal and physical custody of N.P. and her sister, subject to the visitation rights of their father. 

According to the record, during the week of February 15, 2016, N.P. informed her guidance counselor that she had left petitioner’s home and was now living with her father outside the district.  An affidavit submitted by the district’s high school principal states that N.P. “expressed that she had been subjected to verbal abuse, manipulation, and voiced concern about other issues between her and [p]etitioner.”  The principal’s affidavit also states that it was his understanding that N.P. was “spending some of her time at a friend’s house within the [d]istrict and some of her time with her father” outside the district.  Petitioner states that N.P. “refused to return ... despite multiple requests by [p]etitioner to return home” and that her father drives her to and from school each day.  Petitioner also states that respondent is “purposely interfering with [her] rights as the sole custodial parent” by continuing to allow her daughter to attend school within the district “although they have been aware that she moved out of its (sic) boundaries.”  This appeal ensued.  Petitioner’s request for interim relief was denied on March 9, 2016.[1]

Petitioner seeks, among other things, a determination that N.P. is no longer a resident within respondent’s school district and immediate revocation of any rights that N.P. may have as a student of the district.

Respondent contends that petitioner fails to state a claim that would entitle her to the relief sought, and that respondent’s residency decision had a rational basis, and was neither arbitrary nor capricious.  Respondent further contends that N.P. is a resident of the district and has not abandoned her domicile within district boundaries. Respondent also argues that even if N.P. is determined not to be a district resident, she would still be considered both homeless and an unaccompanied youth under the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq.) and 8 NYCRR §100.2(x), and as such, the district may allow the student to continue to attend the same school until the end of the 2015-2016 school year.  In the alternative, respondent claims that even if N.P. is determined not to be a district resident, nor homeless, nor an unaccompanied youth, she would be considered a non-resident student entitled to attend school in the district pursuant to respondent’s policy permitting non-resident students to attend without payment of tuition in the event they move out of the district in the middle of the semester or during their senior year.  Respondent also alleges that petitioner failed to join all necessary parties and does not have standing to bring this appeal.  Respondent requests that the petition be dismissed in its entirety.

I will first address a procedural issue.  Respondent objects to petitioner’s attempt to submit a “Verified” Supplemental Affidavit” with attachments by letter dated July 1, 2016.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Petitioner’s July 1 submission was not submitted in accordance with §276.5 of the Commissioner’s regulations and it contains new allegations not relevant to those originally raised in the petition challenging respondent’s residency determination.  Thus, I will not accept the material submitted by petitioner by letter dated July 1, 2016, or that portion of respondent’s July 27, 2016 letter which is responsive thereto. 

The appeal must be dismissed as moot.  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).  By letter dated June 27, 2016, my Office of Counsel directed that respondent provide an affidavit or affirmation regarding whether N.P. was awarded a high school diploma and graduated from respondent’s school district and, if so, the date of such graduation.  In response, respondent’s attorney provided an affidavit of the principal, stating that N.P. “was awarded a high school diploma from the [d]istrict” and “graduated on June 24, 2016.”  Consequently, the appeal is moot and must be dismissed (see Appeal of L.B. and T.B., 55 Ed Dept Rep, Decision No. 16,832).

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




[1] In the letter informing petitioner that no interim order would be issued, my Office of Counsel advised that, regarding petitioner’s request “to disenroll [N.P.] as a student in the district,” respondent’s “board of education has stated that it will permit [N.P.] to continue to attend school in the district for the remainder of the 2015-2016 school year – her senior year.”