Appeal of A.W., on behalf of her child, from action of the Board of Education of the Jericho Union Free School District regarding residency and homelessness.

Decision No. 18,349

(October 24, 2023)

Ingerman Smith LLP, attorneys for respondent Board of Education of the Jericho Union Free School District, Steven A. Goodstadt, Esq., of counsel

Guercio & Guercio LLP, attorneys for Board of Education of the Harborfields Central School District, John P. Sheahan, Esq., of counsel[1]

ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the Jericho Union Free School District (“respondent”) that her child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Petitioner previously commenced two appeals to the Commissioner alleging that she and her child were homeless (Appeal of A.W., 62 Ed Dept Rep, Decision No. 18,186 [“Appeal I”]; Appeal of A.W., 62 id., Decision No. 18,292 [“Appeal II”]).  At the time this appeal was commenced, Appeal II was pending.  Because I granted a stay request in Appeal II, petitioner’s child remained enrolled in respondent’s school district.

In the instant petition, petitioner asserts that the student is homeless.  She further complains that respondent did not offer adequate accommodations to the student in connection with the administration of multiple Regents examinations.  She seeks “an extension of stay order” permitting the student to remain in respondent’s district until he “completes his High School Graduation.”

Respondent seeks dismissal of the appeal for, among other things, improper service and lack of verification.  Respondent further argues that it has not taken any action that petitioner is entitled to appeal and that the Commissioner cannot adjudicate special education claims in an appeal pursuant to Education Law § 310.  On the merits, respondent denies that petitioner or the student lack a fixed, regular and adequate nighttime residence.[2]

To the extent petitioner seeks to appeal respondent’s alleged failure to implement testing accommodations contained in his Individualized Education Services Plan (“IESP”), claims to enforce rights in an IESP must be addressed through the due process provisions of Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,943).  Indeed, records of the State Education Department reflect that petitioner subsequently filed a State complaint concerning this issue.  Therefore, petitioner’s testing accommodation claims must be dismissed as outside the scope of an appeal pursuant to Education Law § 310 (see Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of a Student with a Disability, 40 id. 170, Decision No. 14,451).

Petitioner’s remaining claims must be dismissed for failure to state a claim upon which relief can be granted.  A petition must contain “a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which the petitioner deems himself/herself entitled” (8 NYCRR 275.10).  Such statement must be “sufficiently clear” to advise the respondent of the nature of the petitioner's claim and of the specific act or acts of which the petitioner complains (id.).  Where the petitioner is not represented by counsel, the Commissioner will interpret this regulation liberally, absent prejudice to the opposing party (Appeal of M.D., 63 Ed Dept Rep, Decision No. 18,321; Appeal of D.B., 57 id., Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Nevertheless, where a petition fails to state a comprehensible claim or fails to identify the specific remedy sought, the appeal must be dismissed (see Appeal of M.D., 63 Ed Dept Rep, Decision No. 18,321; Appeal of Egan, 62 id., Decision No. 18,213; Appeal of C.P., 55 id., Decision No. 16,784).

Other than her IESP claim, petitioner has failed to identify “any ... official act or decision of any officer [or] school authorities” that could form the basis of a new appeal pursuant to Education Law § 310.  At the time this appeal was commenced, Appeal II was pending, in which petitioner sought “a determination that the student [was] homeless.”  Petitioner was not entitled to commence a separate appeal based on the same underlying facts seeking identical relief (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 18,006).  While petitioner additionally seeks a stay order, any such order is dependent upon a pending appeal (see Education Law § 311 [2]; 8 NYCRR 276.1 [a] [stay orders in appeals to the Commissioner] and Education Law § 3209 [5] [c] [automatic stay “pending final resolution of [a] dispute over the school district’s final determination of [a] child’s ... homeless status”]).  Any request to modify the stay order in Appeal II should have been made in that appeal, which has since been dismissed.  As such, there is no basis upon which to issue interim relief.

Finally, as indicated in Appeal II, “[t]he fixed, regular, and adequate nature of the grandmother’s house” will not be addressed as it “was already raised and decided against petitioner” in Appeal I (Appeal of A.W., 62 Ed Dept Rep, Decision No. 18,292).

In light of this determination, I need not address the parties’ remaining contentions, including respondent’s procedural defenses.

THE APPEAL IS DISMISSED.

END OF FILE