Appeal of the BOARD OF EDUCATION OF THE MORAVIA CENTRAL SCHOOL DISTRICT from action of the Board of Education of the Southern Cayuga Central School District regarding residency and homelessness.

Decision No. 18,303

(July 17, 2023)

Costello, Cooney & Fearon, PLLC, attorneys for petitioner, Christopher A. Militello, Esq., of counsel

Ferrara Fiorenza, PC, attorneys for respondent, Jennifer E. Mathews, Esq., of counsel

ROSA., Commissioner.--Petitioner (“Moravia”) challenges a homelessness determination of the Board of Education of the Southern Cayuga Central School District (“Southern Cayuga”) that parent M.Z. and her two children (“the students”) are homeless students 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 school tuition-free.  The appeal must be sustained to the extent indicated.

Prior to the events described herein, parent M.Z.’s two children attended the Lansing Central School District (“Lansing”) as resident students.  On July 15, 2022, Lansing excluded the students as non-residents.  M.Z. did not appeal this determination.

In fall 2022, M.Z. attempted to enroll her children in Moravia.  In a residency determination dated September 13, 2022, Moravia’s superintendent found that M.Z. and the students resided in respondent’s school district.  M.Z. did not appeal this determination.

Later that month, M.Z. registered the students in Southern Cayuga.  In connection therewith, M.Z. indicated that she was residing in temporary housing within respondent’s district.  Specifically, M.Z. asserted that she and the students were temporarily residing in two homes, one in Moravia and the other in Southern Cayuga.  M.Z. admitted that she owned a home but could not live there “due to a fire in the home” and other familial circumstances.  Respondent’s homeless liaison indicated to M.Z. that her temporary housing situation for purposes of McKinney-Vento allowed her to choose whether she wanted the students to attend Moravia or Southern Cayuga.  M.Z. elected Moravia.  While Moravia disagreed with this determination, it enrolled the students in its schools. 

In October 2022, Southern Cayuga’s homeless liaison informed petitioner of its “decision” that M.Z.’s children were “McKinney[-]Vento [e]ligible due to their temporary housing situation.”  This appeal ensued.

Moravia argues that respondent’s homelessness determination was in error.  Moravia seeks a determination that M.Z. and her children are not homeless and “such … further relief” as appropriate.

Southern Cayuga contends that petitioner lacks standing to bring the instant appeal as petitioner was not an aggrieved party.  On the merits, Southern Cayuga contends that its homelessness determination was rational and based on the evidence before it.

The appeal must be dismissed, in part, for lack of standing.  Education Law § 310 provides, in relevant part, that “[a]ny party ... aggrieved may appeal ... any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools” (Education Law § 310 [7]).  Courts have interpreted this broad grant of authority to encompass “controversies within the common school system” (Matter of Bowen v Allen, 17 AD2d 12, 15 [3d Dept 1962], affd without opn 13 NY2d 663 [1963]; see Matter of Bd. of Ed. City School Dist. of Rome v Ambach, 118 AD2d 932, 934 [3d Dept 1986]).

Here, Moravia is not aggrieved by Southern Cayuga’s decision that M.Z. and her children lack a fixed, regular and adequate nighttime residence.  However, Moravia is aggrieved to the extent respondent directed it to enroll and educate students whom it does not consider to be residents or homeless (see Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712).  This claim is addressed below.

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).

I find that respondent lacked authority to direct petitioner to admit M.Z.’s children as homeless students.  It is true, as respondent argues, that homeless students may attend the district in which they became homeless (the district of origin) or where they reside (the district of current location) (8 NYCRR 100.2 [x] [2] [i]).  However, each school district is entitled to determine for itself whether students seeking admission lack a fixed, regular, and adequate nighttime residence.  Thus, upon determining that M.Z.’s children were homeless, Southern Cayuga’s homeless liaison should have assisted M.Z. in registering her children as homeless students in Moravia.  If Moravia determined that the students were not homeless, it could then issue a decision to that effect.

Therefore, this appeal must be remanded to Southern Cayuga to determine whether M.Z. continues to seek admission to Moravia.  If so, respondent shall assist M.Z. in enrolling the students in Moravia.  During this process, Moravia shall maintain the students’ enrollment in the district “pending final resolution of the dispute” (8 NYCRR 100.2 [x] [7] [ii] [c]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of this decision and order, respondent determine whether M.Z. and her family continue to lack a fixed, regular and adequate nighttime residence and seek enrollment in the Moravia Central School District in connection therewith.  If so, respondent shall assist petitioner in seeking her children’s enrollment in Moravia.  The student shall remain enrolled in petitioner’s district during this process and shall be entitled to remain pending final resolution of any dispute.

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