Decision No. 18,297
Appeal of S.P.M. II, on behalf of his children, from action of the Board of Education of the West Seneca Central School District regarding residency.
Decision No. 18,297
(June 29, 2023)
Harris Beach, PLLC, attorneys for respondent, Jeffrey J. Weiss, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the West Seneca Central School District (“respondent”) that his children (the “students”) are not district residents. The appeal must be dismissed.
Given the disposition of this appeal, a complete recitation of the facts is unnecessary. Prior to the incidents that gave rise to this appeal, petitioner and the students resided within respondent’s district and the students attended its schools. On or about March 3, 2023, petitioner notified respondent that the family had moved from an address within respondent’s school district to an address outside the district. By email dated March 16, 2023, respondent informed petitioner that, because the students were no longer district residents, they would be excluded from its schools as of March 17, 2023. This appeal ensued. Petitioner’s request for interim relief was granted on March 29, 2023, which permitted the students to continue attending respondent’s schools pending an ultimate determination on the instant appeal.
Petitioner asserts that respondent’s decision to exclude the students prior to the end of the school year violated district policy and was retaliatory. He seeks “[i]nterim relief permitting [the students] to attend [respondent’s district] pending an appeal submission and decision on the merits of [the] appeal.” Respondent argues that petitioner acknowledges that he and the students no longer reside in the district and that its decision to exclude the students was therefore neither arbitrary nor capricious.
First, I must address the scope of this appeal. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Petitioner also submitted an “additional pleading” after respondent submitted its memorandum of law. Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Petitioner claims that the additional pleading is necessary to “add some evidence to elaborate more on an issue that was briefly covered in the [v]erified [r]eply.” However, petitioner’s claims largely reiterate prior accusations of respondent’s alleged wrongdoing. As such, they will not be considered.
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 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 ). 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).
As noted above: (1) petitioner acknowledges that he no longer resides within respondent’s district, and (2) on March 29, 2023, I granted petitioner’s request for interim relief, which permitted the students to continue attending respondent’s schools through the end of the school year. Therefore, petitioner has received all of the relief he requested and the appeal must be dismissed as moot.
THE APPEAL IS DISMISSED.
END OF FILE
 Respondent’s email indicated that, according to the district’s “Non-Resident Student Policy,” the students could remain in the district until the end of the current marking period, which was March 17, 2023.
 To the extent petitioner raises allegations concerning the federal Family Educational Rights and Privacy Act (FERPA), the Commissioner lacks jurisdiction to consider FERPA claims. The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC § 1232g; 34 CFR part 99; Appeal of Kosack, 53 Ed Dept Rep, Decision No. 16,611; Appeal of G.H.L., 46 id. 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509). Moreover, claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC § 1415), Education Law § 4404, and section 200.5 (j) of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500). Finally, petitioner himself acknowledges in the additional pleading that the matter is moot as the students will attend school in the district in which the family now resides.