Appeal of R.A., on behalf of his child, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 18,039

(August 24, 2021)

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that his 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 schools tuition-free.  The appeal must be dismissed. 

The facts of this appeal are largely undisputed.  Prior to the events leading to this appeal, petitioner and the student resided in respondent’s district, and the student attended respondent’s schools as a resident student.  On October 29, 2012, petitioner’s Massapequa home (the “in-district address”) was substantially damaged by Hurricane Sandy.  As a result, petitioner and the student relocated to a residence in Bellmore, New York (the “out-of-district residence”).  On or about November 29, 2012, the student was admitted to respondent’s schools as a homeless student.  The student thereafter attended respondent’s schools through the 2018-2019 school year.  In response to annual requests for updates to his housing circumstances, petitioner continually asserted that he was working toward repairing the in-district address and intended to return. 

By letter dated August 5, 2019, respondent again requested updated information regarding petitioner’s housing.  Petitioner indicated that his situation remained unchanged.  

By letter dated August 30, 2019, respondent informed petitioner of its determination that he and the student were neither district residents nor homeless.  Respondent further indicated that the out-of-district residence was a fixed, adequate, and regular nighttime residence.  As such, respondent asserted that the student would be disenrolled as of June 26, 2020. 

By email dated May 26, 2020, petitioner inquired about enrolling the student in respondent’s district for the 2020-2021 school year as a homeless student.  Respondent replied later that day, advising petitioner that, pursuant to its August 30, 2019 decision, the student would be disenrolled on June 26, 2020.  Respondent indicated that if petitioner wanted the student to attend respondent’s schools for the 2020-2021 school year, he would have to enroll the student as a district resident.

In June 2020, petitioner sought to re-enroll the student as a district resident, asserting that she was homeless.  By letter dated August 7, 2020, respondent determined that the student was not a resident of the district and, thus, not entitled to attend district schools.  This appeal ensued.

Petitioner maintains that he and the student are homeless because they have been temporarily displaced due to the 2012 damage to his home.  Petitioner further asserts that he and the student intend to reside at the in-district address.  Petitioner seeks a determination that the student is homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent argues that the appeal must be dismissed as untimely.  On the merits, respondent argues that the student is not homeless because there is no evidence that petitioner’s living arrangements are temporary or inadequate.

I must first address a procedural issue.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  A request for reconsideration of the underlying decision or act does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Respondent determined that the student was neither homeless nor a district resident on August 30, 2019.  Petitioner did not appeal that determination within 30 days; instead, he commenced the instant appeal approximately a year later.  While petitioner indicates that he did not initially anticipate the need to appeal respondent’s decision, I do not find that this constitutes good cause to excuse the delay (see Appeals of T.M., Sr., 42 Ed Dept Rep 281, Decision No. 14,855).

I further note that respondent’s August 7, 2020 denial of petitioner’s request to re-enroll the student was not a new, final decision that restarted the 30-day time limitation (compare Appeal of Clarey, 59 Ed Dept Rep, Decision No. 17,703; Appeal of Skiff, 57 id., Decision No. 17,191).  Petitioner’s subsequent request was in the nature of a request for reconsideration, which does not extend the time within which an appeal must be commenced (Appeal of Simonis, 60 Ed Dept Rep, Decision No. 17,889; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Therefore, petitioner’s appeal is untimely and must be dismissed.[1]

Even if the appeal were timely, I note for the benefit of the parties that it would be dismissed on the merits.  Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.”[2]  Both Education Law § 3209 and section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner admits that he and the student have lived at the out-of-district residence since 2012; he does not allege that it is inadequate or temporary.  As such, he has not met his burden of proving that the student lacks a fixed, regular and adequate nighttime residence (see e.g. Appeal of J.B., 56 Ed Dept Rep, Decision No. 17,115; Appeal of D.W., 56 id., Decision No. 16,924).  

Although the appeal must be dismissed, petitioner retains the right to reapply for his child’s admission as a district resident at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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