Appeal of MELODY BENNETT, on behalf of her daughter SAMANTHA GIANCOLA, from action of the Board of Education of the City School District of the City of Auburn regarding residency.

Decision No. 15,274

(August 12, 2005)

Randy J. Ray, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of Auburn ("respondent") that her daughter, Samantha, is not a district resident. This appeal must be dismissed.

It is undisputed that petitioner is not a resident of respondent's district. She is a resident of the Southern Cayuga Central School District. However, Samantha's father, Thomas Giancola ("Giancola"), is a resident of the district. Petitioner and Giancola are divorced. At the beginning of the 2004-2005 school year, Samantha was permitted to attend respondent's schools because, at that time, her parents had joint legal custody of her and she resided one week with her father and the next week with her mother.

According to the petition, in March 2005, the Family Court ("Court") modified the custody arrangement for Samantha by deciding that it was in her best interest to reside fulltime with her mother, outside the district. It further determined that Samantha's parents would continue to have joint legal custody and that she would spend every other weekend with her father, within the district. In addition, the Court decided that she should continue attending respondent's high school for the remainder of the 2004-2005 school year and that she would transfer to the Southern Cayuga Central School District at the beginning of the 2005-2006 school year.

Subsequently, respondent's Assistant Superintendent for Student Services ("Assistant Superintendent") became aware of the new custody arrangement for Samantha. On April 11, 2005, the Assistant Superintendent informed petitioner, by telephone, that Samantha could not continue to attend respondent's schools on a tuition-free basis because she was no longer dividing her time between her father's residence within the district and petitioner's residence outside of it. Thus, Samantha was not a district resident. The Assistant Superintendent further advised petitioner that Samantha could attend respondent's schools on a tuition-free basis until April 15, 2005 but, thereafter, she could only attend said schools on a tuition basis.

By letter dated April 14, 2005, the Assistant Superintendent affirmed her initial determination that due to Samantha's limited physical presence in the district, she was not a district resident and therefore not entitled to attend respondent's schools on a tuition-free basis. The letter also informed petitioner that she could submit additional information regarding Samantha's residency within the district to the Assistant Superintendent or appeal her decision to respondent Board of Education.

The record appears to indicate that petitioner commenced this appeal prior to her receipt of the aforementioned letter. On April 13, 2005, petitioner's request for interim relief was granted.

In this appeal, petitioner claims that Samantha must be permitted to remain in respondent's high school until the end of the 2004-2005 school year because it is essential to her health and emotional well being. Petitioner requests a determination that Samantha is entitled to attend respondent's schools on a tuition-free basis.

Respondent claims that Samantha is not a district resident. It further contends that this appeal should be dismissed because petitioner has failed to exhaust her administrative remedies.

To the extent that petitioner asks that her daughter be permitted to attend respondent's schools for the balance of the 2004-2005 school year, 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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). On April 20, 2005, an interim order was granted directing respondent to permit Samantha to attend the district's schools pending the ultimate determination of this appeal. Because the 2004-2005 school year has ended and petitioner has obtained the relief she seeks, the matter is moot and the appeal must be dismissed (Appeal of Welch, 44 Ed Dept Rep 57, Decision No. 15,097; Appeal of D'Angelo, 39 id. 849, Decision No. 14,399; Appeal of Lascala, 38 id. 16, Decision No. 13,974).

As to the issue of tuition, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025; Appeal of Baronti, 42 id. 140, Decision No. 14,802; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613). Should respondent seek such relief, it should do so in a court of competent jurisdiction (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025).

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

THE APPEAL IS DISMISSED.

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