Appeal of a STUDENT WITH A DISABILITY from action of the Board of Education of the Hicksville Union Free School District regarding residency and transportation.

Decision No. 16,255

(June 30, 2011)

Goodwin Proctor LLP, attorneys for petitioner, Daniel B. Reagan, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Christopher J. Guercio, Esq., of counsel

KING, JR. Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) that he is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or to receive transportation.  The appeal must be dismissed.

Petitioner is a student with a disability who attended 10th grade at Hicksville High School during the 2009-2010 school year.  In December 2009, petitioner withdrew from respondent’s schools and moved to Georgia with his mother.  In January 2010, petitioner returned to Hicksville and began staying with D.T. and T.T., residents of the district whose daughter is petitioner’s friend.  On January 20, 2010, D.T. and T.T. attempted to re-register petitioner in respondent’s schools as a member of their household.  Both D.T. and T.T. submitted an “Affidavit of Hicksville Resident in Custodial Relationship” stating that petitioner was residing with them because the “school district in Georgia can’t provide adequate schooling for special needs.”  Additionally, D.T. completed and signed a “New Entrant Application” and answered “No” to the question whether petitioner is homeless.  D.T. and T.T. simultaneously filed a petition in Nassau County Family Court to be appointed petitioner’s legal guardians, indicating education as a reason for the application.

By letter dated January 25, 2010, respondent’s director of special education and pupil personnel services (“director”) notified D.T. and T.T. that a residency determination meeting was scheduled for January 26, 2010 at which they could provide evidence or testimony on petitioner’s behalf.  A residency hearing (“hearing”) was conducted on January 26, 2010.  Respondent’s attorney presided over the hearing, during which D.T. and petitioner testified that petitioner and his mother moved from an apartment in Hicksville on December 1, 2009[1] to Georgia where they lived in a hotel and homeless shelter before petitioner’s mother was able to obtain a residence “through welfare” in January 2010.  D.T. also explained that petitioner left Georgia and returned to Hicksville in January 2010 upon learning that his stepfather, who had previously been arrested for attempting to kill petitioner while in Hicksville, was moving to Georgia to live with his mother.  D.T. explained that it was therefore unsafe for petitioner to remain with his mother in Georgia.

D.T. also testified that she has allowed petitioner to sleep on a couch in her house since he arrived on January 17, 2010 and that this arrangement was temporary until petitioner finished 10th grade.  D.T. stated that she and her husband applied to Nassau County Family Court for guardianship of petitioner and explained that she would prefer not to be appointed petitioner’s guardian because of the additional financial obligation but would do so if petitioner was not otherwise entitled to attend respondent’s schools.  D.T. stated that she obtained information that petitioner may be entitled to attend respondent’s schools due to his temporary living situation without appointment of a guardian and asked that respondent’s attorney contact the outreach advocate identified on a poster hanging on the wall in respondent’s school administration building.  D.T. also inquired whether the district was subject to the law pertaining to homeless students.  Respondent’s attorney indicated that he could not give D.T. legal advice and did not pursue that issue further.

By letter dated January 27, 2010, the director informed D.T., T.T. and petitioner’s mother of respondent’s final determination that petitioner was not a district resident and would not be permitted to enroll in respondent’s schools.  The January 27, 2010 determination did not address petitioner’s McKinney-Vento eligibility.

On February 23, 2010, petitioner commenced an appeal of respondent’s January 27, 2010 residency determination using the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth” (“form petition”).  In the form petition, petitioner asserted that he was homeless because he lacks a fixed, regular and adequate nighttime residence and is sharing the housing of D.T. and T.T. due to economic hardship or a similar reason.

By letter also dated February 23, 2010, the director, in her position as respondent’s liaison for homeless children and youth (“liaison”), notified D.T., T.T. and petitioner’s mother of respondent’s determination that, while petitioner did not “presently meet the definition of a homeless child or unaccompanied youth,” he was entitled to attend respondent’s schools tuition-free until the end of the 2009-2010 school year.[2]  The liaison stated that this determination was based on testimony at the hearing that, after petitioner and his mother moved to Georgia in December 2009 because they “apparently lost” their in-district residence “due to economic hardship,” they lived in a homeless shelter from December 1, 2009 until January 2010, when petitioner’s mother obtained permanent housing in Georgia.

The liaison’s letter indicated that petitioner would be permitted to immediately enroll in respondent’s schools and remain as a student without payment of tuition until the end of the academic year.  The letter informed D.T., T.T. and petitioner’s mother of their right to appeal such determination pursuant to Education Law §310 (“§310 appeal”) and stated that the “procedure for making such an appeal may be obtained” from the State Education Department’s Office of Counsel.  Petitioner’s request for interim relief was granted on March 10, 2010.

Petitioner contends that he is homeless within the meaning of McKinney-Vento, and therefore, is entitled to attend respondent’s schools and to be transported thereto.  Petitioner also seeks remedial education pursuant to his previous individualized education program (“IEP”) and tutoring for any missed instruction.

Respondent contends interalia, that the appeal must be dismissed as moot because petitioner was permitted to enroll in and attend school in the district through the end of the 2009-2010 school year.  Respondent maintains that petitioner is not homeless because he has a fixed, regular and adequate nighttime residence with his mother in Georgia.  Respondent also argues that petitioner’s mother has not surrendered custody and control of petitioner to D.T. and T.T. and that petitioner is staying with D.T. and T.T. for the purpose of attending respondent’s schools.

Respondent objects to petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).  Because the 2009-2010 and 2010-2011 school years have ended, the appeal is moot to the extent petitioner seeks enrollment in and transportation to respondent’s schools and additional educational services during that period.  Moreover, in response to a request by my Office of Counsel, respondent’s attorney submitted a letter dated June 7, 2011 stating that petitioner is “currently still enrolled” in respondent’s district.  Accordingly, since no meaningful relief can be granted, the appeal must be dismissed as moot.

However, I am compelled to comment on respondent’s attempt to determine petitioner’s McKinney-Vento eligibility in this matter.  In response to petitioner’s application to register in its schools in January 2010, respondent conducted a residency hearing pursuant to section 100.2(y) of the Commissioner’s regulations.  As noted above, however, D.T. specifically requested information during the hearing regarding petitioner’s eligibility to attend respondent’s schools as a homeless student, but was told by respondent’s attorney that he could not provide her with legal advice.  The hearing transcript also indicates that D.T. referenced correspondence from an advocacy group representative regarding petitioner’s potential McKinney-Vento eligibility and asked if the district could “call [the representative] back ... so she can explain to you what she explained to me” regarding McKinney-Vento.  D.T. also asked whether “this law [McKinney-Vento] fall[s] underneath the District” and stated that she learned about McKinney-Vento from a poster hanging in a district administration building.

McKinney-Vento requires that all districts designate a liaison whose duties include ensuring that homeless children and youths are “identified by school personnel and through coordination activities with other entities and agencies;” “enroll in, and have a full and equal opportunity to succeed in” the district’s schools; and that families are “informed of the educational and related opportunities available to their children....”  (42 USC §11432[g][1][j][ii], [6][A][i], [ii], [iv]).  Moreover, the liaison must also ensure that “public notice of the educational rights of homeless children and youths is disseminated where such children and youths receive services under this chapter, such as schools....”  (42 USC §11432[g][6][A][v]).

Accordingly, Education Law §3209 and section 100.2(x) of the Commissioner’s regulations establish certain requirements to ensure that all districts and their liaisons can properly identify, enroll and assist homeless children and youths pursuant to McKinney-Vento. 

For example, a homeless unaccompanied youth or a parent or person in parental relation to a homeless child (“designator”) has the right to designate the child’s or youth’s school district of attendance (Education Law §3209[1][b], [2][a]; 8 NYCRR §100.2[x][1][ii], [2]).  Such designation is to be made on forms specified by the Commissioner and “[a]ll school districts ... shall make such forms available to a homeless child who seeks admission to school or to the parent or person in parental relation who seeks to enroll such child in school” (8 NYCRR §100.2[x][3]; see Education Law §3209[2][d]).

Upon receipt of a designation form, a designated school district and its liaison have certain responsibilities, which, as described above, include immediate enrollment of the student and adherence to certain dispute resolution procedures (Education Law §3209[2][e]; 8 NYCRR §100.2[x][4], [7]).  Specifically, when a district makes a final determination regarding enrollment, school selection and/or transportation, the student and/or parent must be informed of the right to commence a §310 appeal and must be provided with a copy of the form petition for commencing such appeal (8 NYCRR §100.2[x][7][ii][b]).

In the instant appeal, although respondent’s homeless liaison was present at the residency hearing and despite D.T.’s expression of interest at the hearing in pursuing petitioner’s possible McKinney-Vento eligibility, the record contains no evidence that the liaison answered D.T.’s questions or provided her with any information regarding McKinney-Vento at the hearing or that she made any arrangements or attempts to do so after the hearing.  In addition, while the liaison’s February 23, 2010 final determination letter noted the right to appeal, such letter merely referred D.T. and petitioner to my Office of Counsel for information regarding the §310 appeal process and does not appear to have included a copy of the form petition as required by 8 NYCRR §100.2(x)(7)(ii)(b).

Moreover, the liaison’s letter specifically states that, in making its homeless determination, respondent relied upon the hearing testimony provided by petitioner and D.T.  In his affidavit, respondent’s attorney also acknowledges that such determination was “based on testimony given by [petitioner and D.T.] at the residency hearing, along with additional information provided to the District after the hearing, which suggests that at the time [petitioner] withdrew from the District in December, 2009, he and his mother may have been homeless.”  The liaison’s affidavit contains a similar assertion.  Although the record before me contains no description or explanation of such “additional information,” the record clearly indicates that information obtained at the residency hearing raised a question that petitioner’s McKinney-Vento eligibility could be at issue in this matter.  Yet the record does not indicate that respondent or its liaison took any of the steps required by applicable law and regulation to immediately address the question of petitioner’s possible homeless status, including providing petitioner and D.T. with information on McKinney-Vento and assisting petitioner in immediately enrolling in its schools as a homeless student.  Indeed, the residency hearing at which such question arose occurred on January 26, 2010 – nearly one month prior to the liaison’s February 23, 2010 determination letter.  Accordingly, based on the record before me, respondent’s February 23, 2010 determination regarding petitioner’s McKinney-Vento eligibility in this case was procedurally flawed.  I remind respondent of the importance of ensuring that the educational needs of this vulnerable population of students is met and I admonish respondent to ensure that all such students are properly identified and served in accordance with the State and federal requirements designed to protect their educational welfare.

Although the appeal is moot, I note that petitioner has a right to reapply for a determination that he is currently a homeless child or district resident and that respondent may request additional information regarding petitioner’s homeless or residency status.  I urge respondent to do so, and to consider such information and render any determination thereon, in accordance with all applicable State and federal laws and regulations regarding residency and/or homelessness, as appropriate.

THE APPEAL IS DISMISSED.

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