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Decision No. 17,878

Appeal of M.G. and W.G., on behalf of their child C.G., from action of the Board of Education of the Brushton-Moira Central School District regarding residency and transportation.

Decision No. 17,878

(July 13, 2020)

Ferrara Fiorenza PC, attorneys for respondent, Catherine E. M. Muskin, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Brushton-Moira Central School District (“respondent”) that C.G. (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 or receive transportation.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Briefly, the student began attending respondent’s schools as a district resident in 2016.  On or about January 15, 2019, petitioner M.G. notified respondent’s homeless liaison that the family had been evicted from their in-district residence “in or around October 2018.”  Petitioner M.G. further informed the homeless liaison that the family was staying at her parents’ residence – located in the neighboring Salmon River Central School District (“Salmon River”) – while they sought to obtain a new residence within the district.  Respondent permitted the student to attend its schools as a homeless student for the remainder of the 2018-2019 school year.

In a letter dated August 22, 2019, respondent’s superintendent notified petitioners of his determination that based upon the information petitioners had provided, they and the student were not homeless under McKinney-Vento and corresponding State law.  Accordingly, the superintendent informed petitioners that the student was no longer entitled to attend the district’s schools effective September 26, 2019.  This appeal ensued.

Petitioners contend that the student is homeless within the meaning of McKinney-Vento because the family “is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  For relief, petitioners seek a determination that the student is homeless and, thus, entitled to attend respondent’s district schools without payment of tuition and to receive transportation.

Respondent argues that petitioners have failed to establish that the student is entitled to attend the district’s schools as a homeless student.

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 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).

Following submission of the parties’ pleadings, respondent filed with my Office of Counsel and served upon petitioners a supplemental affidavit from its superintendent asserting that the appeal is now moot because petitioners have withdrawn the student from the district.  In this supplemental affidavit, which I have accepted into the record (see 8 NYCRR §276.5[b]), the superintendent asserts that, on or about January 17, 2020, he “became aware” that petitioners were withdrawing the student from respondent’s district and enrolling him in Salmon River Central School District (“Salmon River”).  On that date, respondent requested that the student’s records be transferred to Salmon River.  Moreover, during a January 21, 2020 telephone call with Salmon River’s assistant superintendent for curriculum and instruction, the superintendent indicates that he obtained confirmation that the student was, in fact, enrolled in Salmon River.  Thus, although the student was entitled to attend respondent’s schools during the pendency of this appeal under the automatic stay provisions of McKinney-Vento (42 USC §11432[g][3][E][i]) and State law (Education Law §3209[5][c]), petitioners chose to enroll the student in Salmon River as a resident student.  In light of this information, I find that petitioners’ request to have the student attend respondent’s schools as a homeless student has been rendered moot (Appeal of K.P., 58 Ed Dept Rep, Decision No. 17,661; Appeal of A.L., 56 id., Decision No. 17,072; Appeal of K.S., 51 id., Decision No. 16,319).

Although the appeal must be dismissed as moot, petitioners retain the right to reapply for admission to respondent’s schools on the student’s behalf at any time should their circumstances change, and to submit any documentary evidence for respondent’s consideration.