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Decision No. 18,182

Appeal of Y.A., on behalf of her children, from action of the Board of Education of the Hilton Central School District regarding residency.

Decision No. 18,182

(August 18, 2022)

Harris Beach, PLLC, attorneys for respondent, Anne M. McGinnis, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Hilton Central School District (“respondent”) that her children (the “students”) are not district residents entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

Given the disposition of this case, a complete recitation of the facts is not necessary.  Petitioner, who formerly resided in the district with her family, reported to respondent in March 2022 that she and the students had moved out of the district.  She requested that respondent permit the students to continue attending the district’s schools.  By letter dated April 26, 2022, respondent excluded the students from the district as of May 6, 2022.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 5, 2022. 

Petitioner admits that she and the students have moved out of the district and intend to remain outside of the district for the duration of the 2022-2023 school year.  Petitioner requests that the students be allowed to complete the 2021-2022 school year in their current school and that one of her children, who receives special education services, be permitted to complete the 2022-2023 school year.

Respondent argues that petitioner has failed to meet her burden to demonstrate a right to the relief requested.

The portion of the petition requesting that the students be permitted to finish the 2021-2022 school year in respondent’s schools 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 that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  I granted petitioner’s interim relief such that the students remained enrolled for the remainder of the 2021-2022 school year, which has concluded.  Thus, petitioner cannot be afforded further relief with respect to the 2021-2022 school year.

Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, that “[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.”  The purpose of this provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

By petitioner’s own admission, she and the students no longer reside in the district; thus, she has failed to meet her burden of demonstrating a clear right to the relief requested.  While it is understandable that petitioner is hesitant to transfer the students to a new school, this does not provide a legal basis for overturning respondent’s residency determination (Appeal of Koban, 49 Ed Dept Rep, Decision No. 16,025; Appeal of Martoccia, 42 Ed Dept Rep 76, Decision No. 14,781).[1]  Accordingly, given petitioner’s admission that the students reside outside of the district, the appeal must be dismissed.




[1] Upon enrollment in her district of residence, petitioner’s child with a disability will receive the services recommended by his current individualized education program until such time as that district convenes a meeting of its Committee on Special Education (see 8 NYCRR 200.4 [e] [8]).