NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

Here is another recent case. It illustrates the procedures involved. An investigation is done on residencey (here it was a temporary change). The school board sent a request for school tuition reimbursement and the issue of repayment must now be resolved in a regular court and not the DOE:

"Appeal of O.S. and D.S., on behalf of their children J.S. and K.S., from action of the Board of Education of the Herricks Union Free School District regarding residency.

Decision No. 16,201

(February 17, 2011)

Regina Brandow, P.C., attorneys for petitioner, Regina Brandow, Esq., of counsel

Jaspan Schlesinger LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Herricks Union Free School District (“respondent”) that their children are not district residents. The appeal must be dismissed.

Petitioners have four children, two of whom, J.S. and K.S., are school age. On or about August 15, 2009, petitioners and their children moved into O.S.’s parents’ home on Bellwood Drive in New Hyde Park (“Bellwood address”), in respondent’s district. Thereafter, they registered J.S. and K.S. in the district’s schools. On or about September 15, 2009, O.S.’s father purchased a home on Hillside Boulevard in New Hyde Park (“Hillside address”), outside respondent’s district. Following an investigation, on or about December 9, 2009, the superintendent notified petitioners that J.S. and K.S. were not district residents and would be excluded from the district’s schools, effective December 18, 2009. O.S. and her mother met with the superintendent on December 16, 2009 and stated that petitioners still lived at the Bellwood address.

Additional surveillance was conducted and by letter dated March 9, 2010, the superintendent advised petitioners that their residency in the district was in question. After a residency meeting on March 22, 2010, the superintendent notified petitioners by letter dated March 23, 2010, that J.S. and K.S. were not district residents and would be excluded from attending district schools effective April 5, 2010. The district further claimed back tuition in the amount of $10,529.40 for each child for the period of September 1, 2009 through April 5, 2010. On April 13, 2010, petitioners appealed the superintendent’s decision to respondent. Respondent denied petitioners’ appeal and this appeal ensued.

Petitioners allege that they resided at the Bellwood address from September 2009 through April 5, 2010 while they were renovating the Hillside address. Petitioners request a determination that J.S. and K.S. were residents of the district, entitled to attend its schools without payment of tuition, from September 2009 through April 5, 2010.

Respondent maintains that it properly determined that petitioners’ children were not district residents and that the appeal is moot. Respondent also challenges the scope of petitioners’ reply.

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). Petitioners withdrew J.S. and K.S. from the district’s schools in April 2010. Accordingly, their residency is no longer at issue.

Petitioners argue that the appeal is not moot because respondent has sent them non-resident tuition bills for the period from September 2009 through April 5, 2010 when J.S. and K.S. attended school in the district. 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). Therefore, any discussion of the merits of petitioners’ residency claim for the time period at issue would be advisory in nature. 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). Accordingly, the appeal must be dismissed (see Appeal of Butler and Dunham, 50 Ed Dept Rep __, Decision No. 16,103; Appeal of Azatyan, 49 Ed Dept Rep 65, Decision No. 15,959).

THE APPEAL IS DISMISSED."