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Decision No. 17,760

Appeal of X.W., on behalf of his child A.W., from action of the Board of Education of the Manhasset Union Free School District regarding residency.

Decision No. 17,760

(October 1, 2019)

Hogan & Cassell, LLP, attorneys for petitioner, Michael Cassell, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Manhasset Union Free School District (“respondent”), that his child, A.W. (“the student”) is not a district resident.  The appeal must be dismissed.

Petitioner is the student’s father.  According to the record, petitioner and the student’s mother divorced on or about February 27, 2008.  The record contains a judgment of divorce that provides petitioner and the student’s mother with a three-year rotating schedule of custody.  Consistent with this schedule, petitioner has custody of the student from February 2017 through February 2020.  The student’s mother resides at an address outside of respondent’s district.

In October 2017, petitioner enrolled the student in respondent’s district based on a representation that he and the student lived in an apartment located within respondent’s district (“the in-district address”).

According to respondent, concerns about petitioner’s residency initially arose in spring 2018.  In fall 2018, respondent commenced a residency investigation.

By letter dated December 18, 2018, respondent’s deputy superintendent for business and finance (“deputy superintendent”) notified petitioner of his “preliminary determination” that petitioner and the student did not reside in the district and therefore, the student was not entitled to attend the district’s schools on a tuition free basis.  During the next month, the parties participated in two residency meetings and petitioner provided additional documentation to support his claim that he and the student resided in the district.

By letter dated January 15, 2019, the superintendent notified petitioner of his determination that the student was not a district resident and, therefore, not entitled to attend respondent’s schools.  The letter further informed petitioner that the student would be excluded from the district after January 18, 2019.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 25, 2019.

Petitioner contends that he and the student reside at the in-district address and, therefore, the student is entitled to attend school in respondent’s district.  For relief, petitioner requests a determination that the student is a resident of the district and therefore, entitled to attend the schools of respondent’s district.

Respondent argues that petitioner has failed to meet his burden of proving that its determination was arbitrary or capricious.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

By letter dated September 6, 2019, my Office of Counsel directed the parties, pursuant to §276.5 of the Commissioner’s regulations, to submit an affidavit or affirmation indicating:  (1) whether the student was enrolled in respondent’s district for the 2019-2020 school year; and (2) the current residency status of the student, including whether he resided with petitioner or his mother.  Petitioner states that the student is “presently residing with his mother ... [t]hus he is not enrolled in [respondent’s district] for the 2019-2020 academic year.”  Because petitioner no longer seeks to enroll the student within respondent’s district, the appeal must be dismissed as moot.

To the extent petitioner argues that the appeal is not moot due to a continuing dispute over tuition costs for the 2018-2019 school year, the Commissioner has historically declined to award tuition in residency appeals (Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of M.S. and M.R.F., 57 id., Decision No. 17,347 Appeal of Morris, 57 id., Decision No. 17,175).  Such relief should be sought in a court of competent jurisdiction (Appeal of Morris, 57 Ed Dept Rep, Decision No. 17,175; Appeal of Clark, 48 id. 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).

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