Decision No. 13,684

(October 2, 1996)

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Sara Edelman,

Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of Community School District 26 ("respondent") refusing to promote his son to seventh grade and denying his request for a variance to attend middle school in the school district. The appeal must be dismissed.

Petitioner resides in Queens in Community School District 25. Petitioner's son commenced the 1994-95 school year in Community School District 25. However, as a result of a knee injury, the student was unable to attend school from October 1994 through March 1995. During that time petitioner attempted to obtain home instruction from respondent for his son but minimal service was provided. As a result, petitioner hired private tutors to provide educational services for his son. Prior to his return to school in March 1995 petitioner's son went to live with his grandmother at 45-22 220th Place in Community School District 26. Petitioner indicates that the arrangement was intended to be temporary and, in March 1995, petitioner enrolled his son at MS 158 in respondent's school district.

In April 1995, petitioner's son sustained further injuries in connection with an incident involving other students and missed additional days of school. Thereafter, respondent determined that petitioner did not reside in Community School District 26 but, instead, resided in Community School District 25. Respondent informed petitioner by letter dated May 16, 1995 that his son would not be permitted to return to school in its district. Petitioner appealed the residency determination to former Commissioner Thomas Sobol on June 8, 1995 and, subsequently, the parties stipulated to permit petitioner's son to complete the 1994-95 school year in respondent's district.

By letter dated June 30, 1995, respondent's superintendent of schools notified petitioner that, because of the work his son missed throughout the year, his son would not be promoted to seventh grade. On July 28, 1995 petitioner initiated this appeal, alleging that respondent failed to consider his son's school work and evaluations submitted by the tutors petitioner had hired to instruct his son during the student's absence from school. Petitioner submitted the material as part of the record in this appeal and sought an interim order directing his son's promotion to the seventh grade at the commencement of the 1995-96 school year pending a final determination in this appeal. Petitioner also sought a variance permitting his son to continue attending school in respondent's district.

On September 5, 1995, Acting Commissioner Thomas Sheldon issued an interim order directing that petitioner's son be promoted to seventh grade for the 1995-96 school year. Acting Commissioner Sheldon refused to order interim relief on the variance issue. Consequently, petitioner's son was promoted to seventh grade and attended school in Community School District 25 during the 1995-96 school year.

By letter dated August 23, 1996, the parties were directed pursuant to 8 NYCRR '276.5 to submit current information regarding petitioner's son's educational performance for the 1995-96 school year and current enrollment status. Respondent submitted an affidavit indicating that, pursuant to the September 5, 1995 interim order, petitioner's son had attended seventh grade in Community School District 25 but that in April 1996 petitioner withdrew his son from public school and enrolled him in private school.

The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Kitt, 35 Ed Dept Rep 490; Appeal of Nash, 35 id. 203; Appeal of Warner, 32 id. 533). By virtue of the September 5, 1995 interim order, petitioner's son was promoted to seventh grade for the 1995-96 school year. Thus, petitioner obtained the relief sought in his petition. Moreover, in April 1995, petitioner voluntarily withdrew his son from public school and enrolled him in private school. I find, therefore, that the issues raised in this appeal are moot.

THE APPEAL IS DISMISSED.

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