Appeal of J.M., on behalf of her children, from action of the Board of Education of the Rockville Centre Union Free School District regarding residency and homelessness.

Decision No. 18,433

(July 1, 2024)

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Rockville Centre Union Free School District (“respondent”) that her 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.  The appeal must be dismissed.

Although the record in this appeal is sparse, respondent asserts in a memorandum of law[1] that petitioner enrolled the students in respondent’s schools in September 2011.  Thereafter, in or about March 2018, petitioner and her family became temporarily housed at an address in a neighboring district (the “out-of-district address”).[2]  

In a letter dated April 20, 2023, respondent’s residency officer informed petitioner of her determination that the students were no longer homeless because they had established a fixed, adequate, and regular residence at the out-of-district address.[3]  The letter further informed petitioner that she had until May 5, 2023 to appeal respondent’s determination.  If she did not appeal by that date, respondent’s determination would become final.  Petitioner did not provide any further information.  This appeal ensued.

Petitioner contends that the students are homeless because they share housing with other persons due to a loss of housing and economic hardship.  In a letter submitted with her petition, she asserts that the students’ grandparents, with whom they occasionally live, have stated their intention to move from the State “at the end of August” 2023.  Petitioner requests a determination that the students are homeless and entitled to attend respondent’s schools without payment of tuition.

Respondent argues that the petition must be dismissed as untimely.  On the merits, respondent contends that petitioner has failed to meet her burden of proving that the students’ residence is not fixed, regular, or adequate.

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).  Here, respondent’s determination became final on May 5, 2023.  Accordingly, petitioner had until June 6, 2023 to commence this appeal.  Petitioner did not deliver the petition to respondent’s homeless liaison until July 11, 2023 and presents no explanation for the delay (see 8 NYCRR 275.16).  Accordingly, the appeal must be dismissed as untimely (Appeal of P.W., 62 Ed Dept Rep, Decision No. 18,291). 

For the benefit of the parties, the appeal would have been dismissed on the merits.  “The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate” (Appeal of M.A.-C., 62 Ed Dept Rep, Decision No. 18,177; see also Appeal of N.L., 62 Ed Dept Rep, Decision No. 18.041; Appeal of A.M., 57 id., Decision No. 17,146).

Moreover, petitioner’s indication that the students’ grandparents may sell the out-of-district residence does not demonstrate an imminent loss of housing (Appeal of S.R., 62 Ed Dept Rep, Decision No. 18,162).

THE APPEAL IS DISMISSED.

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