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Decision No. 17,288

Appeal of VINCENT SPERANDEO, on behalf of his daughter CASSANDRA, from action of the Board of Education of the Eastport-South Manor Central School District regarding residency.

Decision No. 17,288

(December 20, 2017)

Law Offices of Thomas M. Volz, PLLC, attorneys for respondent, Thomas M. Volz, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Eastport-South Manor Central School District (“respondent”) that his daughter, Cassandra Sperandeo (the “student”), is a resident entitled to attend its schools tuition-free.  The appeal must be dismissed.

Petitioner resides outside of respondent’s district, and is divorced from the student's mother, who resides within respondent’s district.  The record indicates that the student lives with her mother pursuant to a court-ordered divorce stipulation, dated September 7, 2010.  Petitioner states that a May 2, 2013 court-approved stipulation “identif[ied] 6 (six) districts Cassandra would be allowed to attend,” but that such stipulation did not include attendance in respondent’s district.  Apparently, petitioner objected to the student’s attendance in respondent’s district and, on August 16, 2013, a residency hearing was held.  Three days later, a written determination was issued by respondent’s district clerk that found, “[b]ased upon a review of the documents gathered as a result of the District’s investigation and the testimony provided,” that the student was “a legal resident of the District and therefore legally entitled to attend the District’s schools absent the payment of tuition.”  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that respondent’s determination violates the May 2013 court-approved stipulation agreement.  Petitioner seeks a reversal of respondent’s residency determination, and asks that respondent not allow the student to attend its schools.  Petitioner argues that respondent is “enabling a direct violation of a Supreme Court [o]rder.”  

Respondent asserts that petitioner has failed to sustain his burden of establishing that he is entitled to the relief sought.  Respondent states that petitioner has admitted that the student resides within the district’s geographical boundaries.  Respondent notes that the student spends the majority of her time at the in-district residence with her mother, who is the primary physical custodian.  Moreover, respondent claims that, in cases of joint custody, it is the “family” that determines district of attendance.  Therefore, respondent argues, it has rendered a correct determination based on applicable statutes, Commissioner’s regulations, and district polices in this matter.  Respondent further asserts that it does not have independent authority to enforce any such stipulation agreements or decide disputes regarding them.  Respondent further argues that the issues raised dealing with this stipulation agreement should be adjudicated in a court of competent jurisdiction. 

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).

Pursuant to §275.6 of the Regulations of the Commissioner of Education, my Office of Counsel directed that respondent provide an affidavit or affirmation regarding whether the student resides within the district’s geographical boundaries, and if so, whether she is still enrolled within respondent’s schools.  In response, respondent’s attorney provided an affidavit by the district clerk, stating that “the student ... was discharged from the District on July 26, 2016 pursuant to records received by the District which indicated [that] she would be moving [out of state]....”  The district clerk further stated that the student is not enrolled in respondent’s schools and “to the best of my knowledge, is not a resident of the Eastport-South Manor Central School District.” 

Because the student no longer attends respondent’s schools, I find that the matter of student’s residency in respondent’s district has now been rendered academic. Therefore, no meaningful relief may be granted and the appeal must be dismissed.

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