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Decision No. 16,328

Appeal of V.G. and L.G., on behalf of their children E.G., V.G. and M.G., from action of the Board of Education of the Eastport-South Manor Central School District regarding residency and transportation.

Decision No. 16,328

(February 9, 2012)

Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Eastport-South Manor Central School District (“respondent”) that their children, E.G., V.G. and M.G., are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

At the start of the 2008-2009 school year, petitioners resided on Moriches-Middle Island Road within the district, and their children attended the district’s schools.  Prior to the end of that school year, petitioners moved to Crestwood Drive, outside the district (“Crestwood Drive address”).  The district permitted petitioners’ children to remain enrolled in its schools for the remainder of that school year but advised petitioners that their children would be excluded if they failed to provide proof of residency prior to the start of the 2009-2010 school year.

Petitioners provided the district with a copy of a lease for a house within the district and the children continued attending school there during the 2009-2010 school year.  However, in January 2010, the district received an application for admission for the children of another family who had purchased that property.  Thereafter, petitioners indicated that they were living with a friend on Barnes Road within the district (“Barnes Road address”). 

The district subsequently conducted an investigation, including surveillance of both the Crestwood Drive and Barnes Road addresses, and provided petitioners an opportunity to submit information regarding their residency.

By letter dated April 21, 2010, the district clerk notified petitioners that a determination had been made that their children were not district residents and would be excluded from its schools, effective April 28, 2010.  Shortly thereafter, petitioners contacted the district claiming that their children were homeless within the meaning of McKinney-Vento because they lacked a fixed, regular and adequate nighttime residence and were sharing the housing of other persons due to loss of housing, economic hardship or other similar reason and, therefore, were entitled to attend respondent's schools.

The district conducted a further investigation of petitioners’ claim and, by letter dated February 28, 2011, the assistant superintendent informed petitioners of the district’s determination that their children were not homeless.  This appeal ensued.  Petitioners’ request for interim relief was granted on March 31, 2011.

Petitioners contend that their children are homeless within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools and to receive transportation.  Respondent denies these contentions and maintains that petitioners have a fixed, regular and adequate nighttime residence at Crestwood Drive, outside the district.

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).

In August 2011, subsequent to the close of the 2010–2011 school year, respondent submitted copies of requests it received from the Hampton Bays Union Free School District for the transfer of educational records for each of petitioners’ children.  The requests indicate that petitioners have enrolled their children in the schools of the Hampton Bays Union Free School District for the 2011–2012 school year.  As petitioners’ children completed the 2010–2011 school year in respondent’s district and are enrolled in another district for the 2011–2012 school year, this appeal is moot.

Although the appeal must be dismissed, I am compelled to comment on respondent’s failure to comply with one of the requirements of 8 NYCRR §100.2(x)(7)(ii)(b).  When, as in the instant appeal, a district determines that students are not homeless, it must provide the students or their parents written notice that the students are not entitled to attend its schools and the basis for its determination.  The notice must also state that the district’s determination may be appealed to the Commissioner of Education.  In addition, the notice must contain the name and contact information for the district’s homeless liaison, who is required to assist the students or their parents in filing such an appeal, along with the form petition (8 NYCRR §§100.2[x][7][ii][b] and 100.2[x][7][iii][c][1] and [2]).  In this case, the district failed to include the form petition with the written notice sent to petitioners.  I remind respondent of the importance of ensuring that the educational needs of this vulnerable population are met and I urge respondent to ensure that all such students are properly served in accordance with the State and federal requirements designed to protect their educational welfare. 

In light of this disposition, I need not consider the parties’ remaining contentions.