Appeal of M.E., on behalf of her daughter G.S., from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 16,921

(July 8, 2016)

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the determination of the Board of Education of the White Plains City School District ("respondent") that her daughter, G.S. ("the student"), is not a district resident.  The appeal must be dismissed.

Petitioner alleges that the student has been enrolled in the school district since the 2013-2014 school year.  At an unspecified point, respondent made a determination that the student did not reside within the district.  Respondent, thereafter, excluded the student from attending school in the district.  This appeal ensued.

Petitioner alleges that, since 2010, she has resided in a home in White Plains, within respondent's school district ("White Plains address").  Petitioner asserts that she sometimes stays overnight at her boyfriend's residence in Garnerville, outside the district.  In support of her claim, petitioner provides rent payment receipts and billing statements from ConEdison at the White Plains address from September 2015 through April 2016.  Petitioner requests interim relief permitting the student to attend school in respondent's district pending a final determination in this appeal, as well as a final determination that the student is a resident of respondent's school district entitled to attend school without the payment of tuition. 

By letter dated May 6, 2016, respondent's counsel notified my Office of Counsel that respondent did not oppose the interim relief requested by petitioner.  The letter further stated that petitioner was notified, as of the date of writing, that respondent would permit the student to attend school in the district while the appeal is pending.  Thereafter, in a letter to my Office of Counsel, dated May 20, 2016, respondent's counsel indicated that respondent did not oppose the instant appeal.  The letter stated that the student was attending the district's schools, and that respondent would "continue to monitor this situation" and reserved "the right to challenge the residency status" of the student in the future.  No verified answer was submitted by respondent.

Education Law §3202(1) provides, in pertinent part, as follows:

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 statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924). “Residence” for purposes of Education Law §3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Respondent has not opposed the appeal and, instead, admitted the student to school in the district.  Petitioner, thus, has been afforded the relief requested, and the matter is academic. 

Respondent has indicated that it will "monitor this situation."  I note that any future determination of petitioner's residency must be made pursuant to §100.2(y) of the Commissioner's regulations, and may be the subject of a new appeal, if necessary, pursuant to Education Law §310. 

Inasmuch as the current appeal is academic, it is dismissed as moot.

THE APPEAL IS DISMISSED.

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