Appeal of JOYCELYN JAMES, on behalf of her grandchild AADEN, from action of the Board of Education of the Bayshore Union Free School District regarding residency.

Appeal of JOYCELYN JAMES, on behalf of her grandchild ADALIZ, from action of the Board of Education of the Bayshore Union Free School District regarding residency.

Appeal of JOYCELYN JAMES, on behalf of her child AVERI, from action of the Board of Education of the Bayshore Union Free School District regarding residency.

Decision No. 17,659

(June 18, 2019)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

BERLIN, Acting Commissioner.--In three separate appeals, petitioner challenges the determination of the Board of Education of the Bayshore Union Free School District (“respondent”) that her grandchildren, Aaden, Adaliz and Averi (the “students”), are not district residents.  Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

The record reflects that the students began attending respondent’s schools as district residents during the 2017-2018 school year.  During the 2018-2019 school year, respondent conducted an investigation into the students’ residency.  In a letter dated January 11, 2019, respondent communicated its determination that the students did not reside within its district.

On January 16, 2019, a residency conference was held between the students’ father, respondent’s director of student services and central registration (“director”) and a district administrator, wherein the participants discussed the basis for the district’s residency determination.

In a letter dated January 18, 2019, the district administrator informed the students’ parents of his determination that the students were not district residents.  While the district administrator indicated that he had considered the information discussed during the January 16, 2019 meeting, he indicated that his determination was based upon “a lack of any reliable evidence of [the students’] residency, as well as documented surveillance.”  Those appeals ensued and petitioner’s requests for interim relief were denied because they were determined to be moot.

Petitioner, the students’ grandmother, contends that the students are district residents entitled to attend respondent’s schools without payment of tuition.

Respondent argues that the appeal must be dismissed, inter alia, for lack of standing, and as untimely and moot.  Respondent further contends that its determination was rational.

The appeals must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Here, although petitioner purports to be the students’ legal guardian, respondent has submitted evidence which contradicts this assertion.  Specifically, respondent submits parent and custodian affidavits that the students’ mother executed on September 18, 2018 in which she effected a “permanent” transfer of custody and control of the students to an individual who is not a party to this appeal.  Petitioner did not submit a reply and has not otherwise responded to respondent’s contentions in this respect.  Accordingly, on this record, I find that petitioner has failed to establish that she is legally aggrieved by the students’ exclusion and the petitions must be dismissed for lack of standing (Appeals of K.M. and M.H., 49 Ed Dept Rep 244, Decision No. 16,015; Appeal of M.H., 43 id. 210, Decision No. 14,973).

Even if the appeal were not subject to dismissal for lack of standing, they would 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Respondent submits an affidavit from the director dated May 20, 2019 in each appeal which indicates that, subsequent to the initiation of each appeal, respondent determined that the students were district residents and admitted them to its schools on May 13, 2019.  Given respondent’s subsequent admission of the students as district residents, the instant appeals challenging respondent’s exclusion of the students as non-residents are moot (see Appeal of He, 57 Ed Dept Rep, Decision No. 17,299).

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEALS ARE DISMISSED.

END OF FILE