Appeal of M.S., on behalf of her child A.B., from action of the Board of Education of the East Moriches Union Free School District regarding residency.

Decision No. 17,668

(July 1, 2019)

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, attorney for respondent, Frank A. Isler, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the East Moriches Union Free School District (“respondent”) that her child, A.B. (the “student”), is not a district resident.  The appeal must be dismissed.

Prior to the 2018-2019 school year, A.B. moved from her mother’s (petitioner’s) residence in the William Floyd Union Free School District (“William Floyd”) to her father’s residence in the East Moriches Union Free School District (“East Moriches”).  East Moriches is a K-8 district, and students residing in East Moriches may elect to attend one of three high schools, including the Eastport-South Manor High School, on a non-resident tuition basis.  Accordingly, the student began attending high school at Eastport-South Manor High School in September 2018.  In November 2018, it came to the attention of respondent’s superintendent that the student was no longer living in respondent’s district.  Respondent’s superintendent contacted petitioner, who advised him that the student had moved back in with her in William Floyd in October 2018 because the student’s father had been incarcerated.  When the superintendent spoke to the student’s father, who remained in prison, the student’s father explained that his lease had expired, and he had no residence in respondent’s district.

By letter dated November 15, 2018, the superintendent advised petitioner of his determination that the student was not a district resident because she had moved from her residence within the district to her prior residence with petitioner outside of the district.  The letter advised petitioner of her right to appeal the superintendent’s decision to respondent, and petitioner exercised her right to appeal.

Following a meeting with representatives of respondent, respondent affirmed the superintendent’s decision that the student was not a resident of respondent’s district by letter dated December 5, 2018.  The letter notified petitioner that the student would be “dropped from the School District’s register and will not be permitted to attend the Eastport South Manor School District as a non-resident tuition student of the East Moriches School District as of December 22, 2018.”  This appeal ensued.

Petitioner asserts that the student is a homeless student within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) because she does not have a fixed, regular nighttime residence.  Petitioner argues that the student’s father’s incarceration caused the student to become homeless.

Respondent argues that petitioner cannot assert a homeless claim in this appeal because it was raised for the first time in this appeal and was never presented to the district.  In the alternative, respondent argues that petitioner has not met her burden to prove that the student meets the statutory definition of homelessness.

The appeal must be dismissed because petitioner’s sole argument – that the student is homeless – was never raised to respondent prior to this appeal.  While petitioner has submitted a reply in this matter, she does not refute respondent’s argument on this point in her reply.  Issues not raised before respondent and presented for its consideration and decision, including claims of homelessness, may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (Appeal of J.M. and R.C., 58 Ed Dept Rep, Decision No. 17,470; Appeal of J.H., 52 id., Decision No. 16,376; Appeal of A.R. and S.R., 40 id. 262, Decision No. 14,477).  Respondent has never made a determination on petitioner’s newly-asserted homelessness claim and petitioner does not assert a claim of residency in this appeal.[1]  Because homelessness is the only claim asserted by petitioner, the appeal must be dismissed.

Although the appeal must be dismissed, I note that petitioner has the right to reapply for admission to respondent’s schools on the student’s behalf at any time, particularly if her or the student’s living situation changes, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DIMISSED.

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