Appeal of JANICE STRASSBURG, on behalf of her daughter VICTORIA, from action of the Board of Education of the Niagara-Wheatfield Central School District regarding residency.

Decision No. 16,931

(July 27, 2016)

Jenelle Faso Messer, Esq., attorney for petitioner

Harris Beach PLLC, attorneys for respondent, Shannon K. Buffum, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Niagara-Wheatfield Central School District (“respondent”) that her child is not a resident of the district.  The appeal must be dismissed.

By letter dated December 10, 2015, respondent’s superintendent notified petitioner that a determination had been made that her daughter was not entitled to attend the district’s middle school because she was neither a resident of the district nor a homeless student pursuant to §100.2(x) of the Commissioner’s regulations.  Respondent notified petitioner that Victoria would be excluded from school as of January 4, 2016.  This appeal ensued. Petitioner’s request for interim relief was granted on December 30, 2015.

Petitioner requests a determination that Victoria is a district resident and is entitled to attend respondent’s schools without the payment of tuition.

Respondent maintains that petitioner is not a district resident and seeks tuition reimbursement for the 2015-2016 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 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).  The record indicates that, after commencing this appeal, petitioner entered into a lease for property within the geographic boundaries of the district, whereupon respondent admitted petitioner’s daughter as a district resident on February 11, 2016. Accordingly, this appeal is moot.

I note that while respondent admitted petitioner’s daughter as a resident student in February 2016, in its answer to the petition, respondent seeks the award of tuition.  However, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  To the extent respondent asks that I determine that Victoria was not a district resident during the 2015-2016 school year and set tuition so that respondent can seek reimbursement in another forum, I note that any discussion of the merits of petitioner’s residency claim for the time period at issue would be advisory in nature (see e.g. Appeal of L.B. and T.B., 55 Ed Dept Rep, Decision No. 16,832; Appeal of O.S. and D.S., 50 id., Decision No. 16,201).  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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