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Decision No. 17,073

Appeal of DANIEL CHAO, on behalf of his granddaughter CLAIRE CHAO, from action of the Board of Education of the Bronxville Union Free School District regarding residency.

Decision No. 17,073

(April 10, 2017)

Collins, Fitzpatrick & Schoene, LLP, attorneys for petitioner, Ralph F. Schoene, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Bronxville Union Free School District (“respondent”) that his granddaughter, Claire, is not a district resident.  The appeal must be dismissed.

Claire’s parents are separated and her mother resides in Taiwan and her father resides in Hong Kong.  In January 2015, Claire began residing with petitioner and his wife within respondent’s school district.  Claire attended a private parochial school until the end of the 2015-2016 school year.

On or about February 17, 2016, Claire’s father completed application materials to register Claire in respondent’s high school. 

In an email dated April 25, 2016, the district’s Assistant Superintendent for Human Resources and Pupil Services (“assistant superintendent”) informed Claire’s father of her determination that Claire was not a district resident and was not eligible to attend respondent’s schools tuition-free.  The assistant superintendent offered petitioner the option of enrolling Claire as a tuition-paying student.  In an email dated April 26, 2016, Claire’s father responded, inquiring as to what the tuition and other fees would be.

In an email dated May 3, 2016, petitioner’s counsel requested “a reconsideration” of the assistant principal’s determination that Claire was not a district resident.

On May 6, 2016, the assistant superintendent wrote to Claire’s father and requested information regarding property located within the district which he owned as well as a current tax bill.   The assistant superintendent indicated that a review of the current tax bill would “help [her] determine if Claire can attend Bronxville High School tuition-free.”

On May 11, 2016, petitioner’s counsel provided the requested information via email.  Petitioner’s counsel indicated that he believed this information was “sufficient to establish that [petitioner and his wife] [w]ere bonafide residents” of the district, and that this entitled Claire to attend the district’s high school “as a non-tuition paying student.”  Petitioner’s counsel further requested that the assistant superintendent notify him when she reached a final determination regarding Claire’s residency so that he would “know whether an appeal to the Commissioner of Education [w]as necessary.”

In a letter to Claire’s father dated June 17, 2016, the assistant superintendent stated that “[a]s you know, your family does not meet the residency requirements” of State law.  The assistant superintendent indicated, however, that Claire could attend the district’s high school as a non-resident student upon payment of tuition, and that petitioner could offset this amount by the school taxes which he and his wife had paid on property located within respondent’s district.

By email dated June 26, 2016, Claire’s father indicated that he would like to enroll his daughter in respondent’s high school as a non-resident student under the terms outlined in the June 17, 2016 letter and Claire subsequently attended respondent’s high school as a tuition paying student.  This appeal ensued.

Subsequently, by letter dated March 15, 2017, respondent submitted information as part of this appeal indicating that, effective January 9, 2017, Claire had been voluntarily removed from respondent’s schools and placed in a boarding school in Maryland.  Respondent asserts that this renders the appeal moot.  Petitioner does not dispute that Claire has been placed in an out-of-state boarding school, but maintains that the appeal is not moot because he requests reimbursement for the tuition that has been paid.

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).  Since Claire no longer attends respondent’s schools, the appeal is moot (see eg. Appeal of K.S. 51 Ed Dept Rep, Decision No. 16,319).

In light of the above disposition, I need not address the parties’ remaining contentions.  However, I note that to the extent petitioner seeks tuition reimbursement, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of Williamson, 51 Ed Dept Rep, Decision No. 16,333; Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on Claire’s behalf in the future, should circumstances change, and to present any new documentation or information for respondent’s consideration.