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Decision No. 18,313

Appeal of L-J.H. from action of the Board of Education of the Silver Creek Central School District regarding residency and homelessness.

Decision No. 18,313

(July 31, 2023)

Webster Szanyi LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the Silver Creek Central School District (“respondent”) that she (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.

Petitioner attended respondent’s district during the 2021-2022 school year as a foreign exchange student.  On June 19, 2022, the student’s parents executed a document transferring temporary legal guardianship of the student to two district residents.  The student then attempted to enroll in respondent’s schools as a resident to complete her senior year of high school but was denied.  On October 28, 2022, petitioner asserted that she was eligible for enrollment as an unaccompanied youth under McKinney-Vento.  Respondent thereafter enrolled petitioner in the district.  By letter dated November 10, 2022, the district’s residency officer determined that the student was not homeless within the meaning of McKinney-Vento and Education Law § 3209.  The residency officer reasoned that the student’s residence was fixed, regular and adequate and that petitioner was residing with the temporary guardians solely to take advantage of district schools.  This appeal ensued.

Petitioner argues that she is homeless because she is “residing in a temporary household” and unable to return to her home country due to “family issues and a lack of financial resources ....”  She seeks a determination that she is entitled to attend respondent’s schools and receive transportation.

Respondent maintains that the student is not homeless and only alleging such as a “ruse” to attend its schools.

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]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

The record reflects that the student graduated from respondent’s district on June 23, 2023.  As a result, there is no current dispute over the student’s residency or homeless status and the appeal must be dismissed (Appeal of Walsberg, 57 Ed Dept Rep, Decision No. 17,332; Appeal of S.P., 56 id., Decision No. 16,951; Appeal of L.B. and T.B., 55 id., Decision No. 16,832).[1]  To the extent that there is a remaining dispute over tuition, I do not find that this presents a live controversy (e.g., Appeal of X.W., 59 Ed Dept Rep, Decision No. 17,760; Appeal of S.T.V., 57 id., Decision No. 17,371; Appeal of M.S. and M.R.F., 57 id., Decision No. 17,347).

While I decline to address the merits of this dispute, I am not persuaded that the record contains evidence that petitioner, as respondent asserts, “engaged in misleading and/or dishonest conduct” or “act[ed] in bad faith.”

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




[1] Petitioner does not argue that the exception to the mootness doctrine applies (see Appeal of Hargrave, 60 Ed Dept Rep, Decision No. 17,923 [describing criteria applied by Court of Appeals]).