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Decision No. 17,490

Appeal of E.C., on behalf of her children J.C. and K.C., from action of the Board of Education of the Malverne Union Free School District regarding residency and transportation.

Decision No. 17,490

(August 21, 2018)

The Law Office of Suzanne Myron, attorneys for petitioner, Suzanne Myron, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Peter G. Albert, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that her children (the “students”) are not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be sustained in part and remanded.

The students attended respondent’s schools prior to the events described in this appeal.  In mid-October 2017, respondent initiated an investigation into the students’ residency when student J.C. told his teacher that he did not live within respondent’s district.  Respondent’s residency investigation suggested that the students resided at an address in Hempstead, New York.

In a letter dated November 6, 2017, respondent’s assistant superintendent for district operations (“assistant superintendent”) informed petitioner of the district’s determination that the students were not district residents.  The letter indicated that petitioner could contact the assistant superintendent if she wished to “dispute those facts” and that, if she did not do so, the students would be excluded from respondent’s schools effective November 13, 2017.

On November 8, 2017, petitioner, who was assisted by a Spanish translator, student K.C., the district’s school registrar and the assistant superintendent met to discuss the district’s residency determination.  At the conclusion of this meeting, petitioner stated that she would disenroll the students from respondent’s schools.

Sometime in November 2017, the district was contacted by a representative from the New York State Technical and Educational Assistance Center for Homeless Children (“NYS TEACHS”), who claimed that the students may be homeless.

In a letter dated November 22, 2017, the assistant superintendent indicated that the district would delay implementation of its non-residency determination “[i]n accordance with the McKinney-Vento Act” for 30 days, and that the students would be excluded from its schools at the end of the school day on December 22, 2017.  The record indicates that petitioner removed the students from respondent’s schools on November 9, 2017 and re-enrolled them on November 27, 2017.  This appeal ensued.

Petitioner contends that the students lack a fixed, regular and adequate nighttime residence at the Hempstead address.  Specifically, petitioner contends that she “sleep[s] with [her] 2 boys” in a room, and that student K.C. “sleeps on [a] couch.”  Petitioner further submits evidence indicating that she and the students will be forced to leave the Hempstead address in July 2018.

Respondent contends that petitioner has failed to meet her burden of proving that the students’ residence is not fixed, regular or adequate.

For the reasons described below, the appeal must be sustained in part and remanded.  In response to a directive issued by my Office of Counsel pursuant to 8 NYCRR §276.5, student K.C. submitted an affidavit indicating that she and her brother J.C. no longer reside at the Hempstead address.  According to the affidavit, as of August 6, 2018, the students “were forced to leave [the Hempstead address] after [they] were evicted by the owner, who [wished] to sell the residence.”  K.C. further attests that the students will be receiving mail at her friend’s house in Malverne and “temporarily rotating our sleeping arrangements” between her friend’s house in Malverne and two other locations in West Hempstead and Roosevelt, where petitioner and K.C.’s two other siblings will “be living in a shared housing situation.”  Thus, the students’ circumstances have changed since this appeal was commenced such that petitioner and the students no longer reside at the Hempstead address.

Nevertheless, the allegations presented by K.C. in the affidavit strongly suggest that the students are physically present, at least some of the time, at a location within respondent’s district and may currently be homeless.  In view of this apparent change in circumstances, it is appropriate to remand this matter to respondent for a new determination as to whether the students are currently homeless children or district residents based on the totality of the circumstances (see e.g. Appeal of Choi, 48 Ed Dept Rep 43, Decision No. 15,788).  Prior to making such determination, petitioner shall be afforded a full opportunity to submit any and all information concerning the students’ residency or homeless status and respondent must make such determination in accordance with all applicable State and federal laws and regulations regarding residency and/or homelessness, as appropriate.  Moreover, if a dispute arises surrounding the students’ McKinney-Vento eligibility, school selection or enrollment, the students shall be immediately enrolled in respondent’s district pending final resolution of the dispute, including all available appeals (42 USC §11432[g][3][E][i]; Education Law §3209[5][c]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.

IT IS ORDERED that, within 10 days of the date of this decision and order, respondent issue a written decision as to whether the students are entitled to attend the schools of the district, and that prior to making such determination, petitioner shall be afforded a full opportunity to submit any and all information concerning the students’ residency.

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