Decision No. 12,645

(February 5, 1992)

Serchuk and Zelermyer, Esqs., attorneys for petitioner, Kimberly C. Sheehan, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger and Reich, Esqs., attorneys for respondents, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her daughter is not a resident of the Port Washington Union Free School District and is, therefore, not entitled to continue to attend its schools. I previously issued an interim order requiring that petitioner's daughter be allowed to remain in the Port Washington schools pending my final determination on the merits. I now dismiss the appeal.

It is undisputed that petitioner and her daughter moved to respondent's school district in July 1988, and that in September 1988, petitioner's daughter entered the tenth grade in respondent's schools. Petitioner alleges that she and her daughter remained at the same address from July 1988 until October 1989. In October 1989, petitioner moved from Port Washington to Manhasset, which is not in the Port Washington Union Free School District. Petitioner alleges that her daughter did not move with her because she was unable to support her daughter, and her apartment in Manhasset was too small. It is undisputed that from October 1989 until September 1990, petitioner's daughter resided with a family in the Port Washington Union Free School District. In September 1990, petitioner's daughter moved out of respondent's school district and into petitioner's apartment in Manhasset.

Petitioner alleges that her daughter's change in residence was precipitated by a meeting with respondent's school psychologist who advised her that her daughter was experiencing emotional difficulty due to their separate living arrangements. Petitioner claims the psychologist suggested that her daughter move in with her. In response to her concern that her daughter's move could adversely impact her residency status, petitioner claims that the school psychologist assured her that exceptions to the residency requirement were made for seniors who previously attended schools in the district. Petitioner represents that based upon this assurance she arranged to have her daughter move into her apartment in Manhasset. She further alleges that in September she promptly notified school officials of her daughter's change of residence on an emergency contact card.

Respondent asserts that because petitioner's daughter is not a resident of its school district she may not attend its schools, despite its policy that recognizes an exception to its residency requirement for seniors who have completed at least three out of four years in its high school. Respondent asserts that because petitioner's daughter only attended the district's high school for two years, the exception to its residency policy does not apply. Thus, by letter dated November 19, 1990, respondent notified petitioner that as of November 30, 1990 her daughter would not be allowed to attend school in the district. This date was later extended to December 4, 1990 to allow respondent board of education an opportunity to review the initial decision. On December 5, 1990 petitioner was advised that respondent board declined to reconsider the decision and that her daughter's last day of school would be December 7, 1990. This appeal ensued.

The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exists, or which subsequent events have laid to rest (Appeal of Becker, 29 Ed Dept Rep 419; Appeal of Vachon, 28 id. 276; Matter of Rondot, 27 id. 143; Matter of Shakow, 26 id. 520). From the record it appears that petitioner's daughter, barring unforseen circumstances, has already graduated from high school. The matter is therefore academic and must be dismissed.

Even if the appeal were not moot, I would dismiss it on the merits. "The general rule is that a school district in this state must provide free education to children whose parents or legal guardians reside within the district" (Appeal of Coleman, 31 Ed Dept Rep 49; Education Law '3202(1); Catlin v. Sobol, 77 NY2d 552). Petitioner readily admits that she and her daughter do not live in respondent's district. She argues, however, that her daughter's move outside the district was based in part upon a representation by the school psychologist that her daughter would be permitted to finish high school at respondent's schools. Respondent has adopted a policy which permits students who have attended three out of four years at the senior high school to complete their high school education at respondent's schools, even if the family no longer resides in respondent's district. Petitioner's daughter admittedly does not meet the threshold requirements of respondent's policy.

Further, petitioner's argument that she reasonably relied on a representation of the respondent's school psychologist that her daughter would be permitted to finish school at respondent's schools if she moved out of the district, is similarly without merit. Respondent's school psychologist denies making the statement. Even if he had, respondent board would not have been bound by it. Essentially, petitioner is arguing that because she relied to her detriment on a statement made by respondent's school psychologist, and permitted her daughter to move in with her, respondent should be equitably estopped from removing her daughter from its schools, notwithstanding the fact that she is not a resident. The courts have repeatedly rejected this argument and held that, with limited exceptions not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Associates v. City of New York, 71 NY2d 274; Hampton Hosp. v. Moore, 52 NY2d 88). Stated another way, except in limited circumstances, a school district cannot be liable for the unauthorized acts of its employees (seeMatter of Ceprano, 17 Ed Dept Rep 298). Because respondent's school psychologist was not authorized to make any representations with respect to the daughter's residency, respondent is not bound by it.

THE APPEAL IS DISMISSED.

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