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Decision No. 17,459

Appeal of J.D., on behalf of her children I.P. and M.P., from action of the Board of Education of the Longwood Central School District regarding residency and transportation.

Decision No. 17,459

(July 20, 2018)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Longwood Central School District (“respondent”) that her children, I.P. and M.P. (“the students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioner’s children attended school in respondent’s district during the 2016-2017 school year.  The record indicates that when they were first enrolled in respondent’s schools, the students lived in “transitional” housing at an address within the district.  On July 11, 2017, the district was notified by a social services examiner that, effective July 1, 2017, petitioner and the students were placed in permanent housing within the Wyandanch Union Free School District.

By letter dated August 31, 2017, respondent’s assistant superintendent notified petitioner that the students were no longer homeless pursuant to McKinney-Vento and therefore, would not be entitled to attend respondent’s schools for the 2017-2018 school year.  This appeal ensued.

Petitioner alleges that she and the students are currently homeless as defined by McKinney-Vento because they currently reside at an “affordable residential transitional family rental housing program.” 

Respondent argues that petitioner fails to state a claim upon which relief may be granted and that the appeal is untimely.  Respondent maintains that petitioner and the students have permanent housing within the Wyandanch Union Free School District and are not homeless pursuant to McKinney-Vento.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Respondent’s final determination from which petitioner appeals was made on August 31, 2017, and petitioner did not commence this appeal until January 26, 2018, almost five months later.  Petitioner does not assert good cause, or any cause, to excuse the delay (see 8 NYCRR §275.16).  Therefore, the appeal must be dismissed as untimely (see e.g. Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeal of J.S., 49 id. 411, Decision No. 16,066).

The appeal must also 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Pursuant to §276.5 of the Commissioner’s regulations, respondent requested permission to submit an affirmation dated April 20, 2018 from respondent’s counsel stating that petitioner voluntarily withdrew both students who are the subject of this appeal from respondent’s district. 

Respondent submits the completed student transfer/withdrawal forms as exhibits to the affirmation.  On these forms, petitioner answered “no” in response to the question: “[a]re you leaving the district because you are homeless?”  Since petitioner admits that she is no longer “homeless” and the students have withdrawn from the district, this matter is moot and the appeal must be dismissed (see Appeal of  A.L., 56 Ed Dept Rep, Decision No. 17,072; Appeal of K.S., 51 id., Decision No. 16,319).

Although the appeal must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for admission to the district on the students’ behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.