Appeal of RACHEL MAYERS-TARBELL, on behalf of her children, from action of the Board of Education of the North Syracuse Central School District regarding residency.

Decision No. 18,043

(August 30, 2021)

Bond Schoeneck & King, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the North Syracuse Central School District (“respondent”) that her two children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools tuition free or receive transportation.  The appeal must be sustained to the extent indicated.

Prior to the events described in this appeal, petitioner and the students lived with petitioner’s mother at an address located within the district (the “in-district address”).  The students experienced a period of homelessness in early 2019 but were reenrolled in July 2019 when they moved back in with petitioner at the in-district address.

On or about August 2, 2020, respondent received police reports identifying the students’ address as a location outside of the district’s geographic boundaries (the “out-of-district address”).  

On August 11, 2020, the district’s homeless liaison spoke to petitioner by telephone.  According to the homeless liaison, petitioner informed her that she had lied to the police and that she and the students lived with the students’ grandmother at the in-district address.  The homeless liaison states that she subsequently contacted the students’ grandmother, who “refus[ed] to confirm” that the students resided with her at the in-district address.

By letter dated August 11, 2020, the homeless liaison informed petitioner of her determination that the students were not district residents and would be excluded on August 25, 2020.  In an affidavit submitted with this appeal, the homeless liaison asserts that she based this determination “on [petitioner’s] admissions to the police on several occasions, as well as the refusal of petitioner’s mother to confirm that petitioner resided in the District.”  This appeal ensued.

Petitioner contends that she and the students are sharing the housing of other persons due to loss of housing, economic hardship, or similar reason and, therefore, are homeless within the meaning of McKinney-Vento.  In a written statement submitted with her petition, petitioner states that she and the students live at the in-district address, although the children “visit their dad frequently.”  Petitioner seeks a determination that the students are homeless within the meaning of McKinney-Vento and State law and, thus, entitled to attend respondent’s schools and receive transportation.

Respondent contends that petitioner fails to state a claim upon which relief may be granted.

Petitioner’s claims of homelessness must be dismissed as premature.  There is no evidence in the record that petitioner claimed that the students were homeless prior to this appeal.  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 pursuant to Education Law § 310 (Appeal of R.V., 60 Ed Dept Rep, Decision No. 17,911; Appeal of M.S., 59 id., Decision No. 17,668; Appeal of J.M. and R.C., 58 id., Decision No. 17,470).  Therefore, petitioner’s claim that the students are homeless must be dismissed as premature.

Nevertheless, I find it necessary to sustain the appeal because respondent did not comply with 8 NYCRR 100.2 (y) in rendering the residency determination that gave rise to this appeal.  That provision requires that, prior to making such a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the children, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding parents’ right to appeal to the Commissioner.  Other than the August 11, 2020 phone call between petitioner and the homeless liaison, there is no evidence that respondent provided petitioner the opportunity to submit information concerning the students’ residency.  Additionally, respondent’s August 11, 2020 determination did not identify the basis for its determination.  Therefore, I remand this matter to respondent to make a residency determination consistent with 8 NYCRR 100.2 (y) within 30 days of this decision and order (see Appeal of a Student with a Disability, 36 Ed Dept Rep 81, Decision No. 13,664).  At that time, petitioner may submit any documentary evidence for respondent’s consideration. The students shall remain enrolled in respondent’s district during this process.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of this decision and order, respondent evaluate the residency status of the students and make a final written determination in accordance with 8 NYCRR 100.2 (y).  Prior to making such determination, petitioner shall be afforded a full opportunity to submit any information concerning the students’ residency.  The students shall remain enrolled in respondent’s district during this process.

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