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Decision No. 17,965

Appeal of L.T., on behalf of her child Y.T., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency and transportation.

Decision No. 17,965

(February 25, 2021)

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

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

The record indicates that, in November 2017, petitioner and the student moved to respondent’s district after becoming displaced from their home in Puerto Rico due to Hurricane Maria.  The student attended respondent’s schools as a homeless student.  In or about August 2018, respondent learned that petitioner and the student had moved to an address outside the district (the “out-of-district residence”).

Respondent allowed the student to continue attending its schools as a homeless student through the 2019-2020 school year.  In August 2020, respondent’s transportation coordinator and residency officer (“residency officer”) conducted a home visit of the out-of-district residence.  In an affidavit submitted with respondent’s answer, the residency officer relays the following observations from his visit:

  • The out-of-district residence is a two-family home.  Petitioner’s aunt and her boyfriend lived in the basement, which is a separate apartment with its own entrance, bathroom, living area and kitchen; petitioner and the student resided in the “main living area” with petitioner’s daughter  (who is not subject to this appeal) and cousin  (the aunt’s daughter).
  • Each person living in the house had his or her own bedroom.
  • Petitioner’s bedroom and the student’s bedroom each contained personal items, including a large television in the student’s bedroom.
  • All rooms were organized, and the house appeared to be petitioner’s and the student’s “permanent residence.”
  • “[A]ll ... utilities were working properly” in the home.

By letter dated September 9, 2020, respondent’s homeless liaison informed petitioner that respondent did not believe she and the student resided within the district or that the student was entitled to attend respondent’s schools pursuant to McKinney-Vento.[1]  Respondent offered to meet with petitioner on September 16, 2020 to review any documentation or information regarding the student’s right to attend school in the district under McKinney-Vento.  The letter further stated that, if petitioner did not present such evidence, the student would be excluded from respondent’s schools as of October 9, 2020.[2]  This appeal ensued.

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

Respondent argues that petitioner and the student reside at the out-of-district residence, which is fixed, regular, and adequate; consequently, the student is not entitled to attend the district’s schools as either a district resident or 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 petitioner a supplemental affidavit from its homeless liaison, asserting that the appeal is now moot because petitioner has withdrawn the student from the district.  In this supplemental affidavit, which I have accepted into the record (see 8 NYCRR §276.5[b]), the homeless liaison asserts that, on November 24, 2020, petitioner “submitted a withdrawal request” for the student, indicating that the student would be transferring to a school in Florida.  The homeless liaison further states that the student’s last day of attendance in respondent’s district was November 24, 2020.  Attached as an exhibit to the supplemental affidavit is a copy of the November 24, 2020 withdrawal form.  

Petitioner has not submitted any information addressing respondent’s submission.  In light of the information in the homeless liaison’s supplemental affidavit and the attached withdrawal form executed by petitioner, I find that, 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]), petitioner voluntarily withdrew the student and indicated her intention to move to Florida.  Accordingly, I find that petitioner’s request to have the student attend respondent’s schools as a homeless student has been rendered moot (Appeal of M.G. and W.G., 60 Ed Dept Rep, Decision No. 17,878; Appeal of K.P., 58  id., Decision No. 17,661; Appeal of A.L., 56 id., Decision No. 17,072).

Although the appeal must be dismissed as moot, I note that petitioner retains the right to reapply for the student’s admission to respondent’s schools on the basis of residency, should their circumstances change.  At that time, petitioner may submit any documentary evidence for respondent’s consideration.




[1] The homeless liaison sent copies of this letter to petitioner in both English and Spanish.


[2] The record reflects that the offered meeting on September 16, 2020 did not occur.