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Decision No. 18,175

Appeal of N.A., on behalf of her child, from action of the Board of Education of the Remsenburg-Speonk Union Free School District regarding residency and transportation.

Decision No. 18,175

(August 18, 2022)

Volz & Vigliotta, PLLC, attorneys for respondent, Michael G. Vigliotta, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Remsenburg-Speonk 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 district’s school tuition-free.  The appeal must be dismissed.

Prior to the events leading to this appeal, petitioner and the student resided at an address within the district (the “in-district residence”), and the student attended respondent’s school as a resident.  On May 19, 2021, the Town of Southampton issued a violation to the owner of the in-district residence.  The violation indicated that the in-district residence had been illegally converted from a “garage to living space.”  The violation gave the owner 30 days to undertake corrective action, which entailed seeking “a rental permit through code enforcement.”

On May 25, 2021, the owner evicted petitioner and the student, effective August 31, 2021. 

In September 2021, petitioner notified respondent that, as of September 20, 2021, she and the student would be temporarily residing outside of the district with her boyfriend (the “out-of-district residence”) and requested transportation for the student.  Petitioner provided the district with a copy of her boyfriend’s lease for the out-of-district residence.

By letter dated September 17, 2021, respondent’s superintendent informed petitioner that, as of September 19, 2021, the student would “no longer legally reside” in the district and directed petitioner to submit any information regarding the student’s residency by September 20, 2021.  Petitioner provided the district with documentation regarding the termination of her lease for the in-district residence, as well as documents indicating that she had received unemployment benefits and was eligible for certain public assistance benefits.

By letter dated September 20, 2021, respondent’s superintendent determined that the student was neither a resident nor homeless and would be excluded from the district’s school effective October 20, 2021.  This appeal ensued.

Petitioner seeks a determination that the student is homeless within the meaning of McKinney-Vento and State law and, thus, entitled to attend respondent’s school, for her final year at the school, and receive transportation.  Petitioner argues that their living arrangement is temporary because the out-of-district residence rented by her boyfriend is a “winter rental property,” with the lease term ending on May 15, 2022.

Respondent contends that the student is not homeless under McKinney-Vento because petitioner has not established that the student lacks a fixed, regular, and adequate nighttime residence or that the out-of-district residence is temporary or transitional.

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 that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Following submission of the pleadings in this appeal, petitioner and respondent informed the Office of Counsel that the student no longer resides at the out-of-district residence.  Any determination as to whether the student remains homeless would center on the adequacy and permanency of the student’s new residence.[1]  Therefore, the appeal must be dismissed as moot (Appeal of L.P., 61 Ed Dept, Decision No. 18,080; Appeal of M.G. and W.G., 60 id., Decision No. 17,878; Appeal of A.L., 56 id., Decision No. 17,072).  Petitioner retains the right to seek a determination from respondent as to whether the second out-of-district residence is fixed, regular and adequate.




[1] Although respondent has continued the student’s enrollment in its district, it has only done so to abide by the automatic stay provisions of McKinney-Vento and State law, which apply during the pendency of this appeal (see 42 USC § 11432 [g] [3] [E]; Education Law § 3209 [5] [c]).