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N.J., Individually, and As Parent and Natural Guardian of N.J. and A.J., Minor Children, Individually v. State of New York

December 13, 2011

N.J., INDIVIDUALLY, AND AS PARENT AND NATURAL GUARDIAN OF N.J. AND A.J., MINOR CHILDREN, INDIVIDUALLY,
PLAINTIFFS,
v.
STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT AND MALVERNE UNION FREE SCHOOL DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

The plaintiffs in this case are N.J. and her children N.J(m)*fn1 and A.J ("the plaintiff children" and collectively "the Plaintiffs"). The Plaintiffs allege that they are "homeless" as defined under federal and state law. The Plaintiffs have commenced this action against the Malverne Union Free School District ("the District"), the State of New York ("the State") and the New York State Education Department ("the NYSED" and together with the District and the State "the Defendants"). The Plaintiffs allege that the Defendants denied to them the rights afforded to homeless children in obtaining a free public education in violation of the McKinney-Vento Act, 42 U.S.C. § 11431 et seq., New York Education Law § 3209, and 42 U.S.C. § 1983. Presently before the Court is a motion by the Plaintiffs for a preliminary injunction preventing the District from disenrolling the plaintiff children from the schools they currently attend within the District, and an order requiring the District to arrange for the plaintiff children's transportation in accordance with the McKinney-Vento Act and New York law. For the reasons set forth below, the Plaintiffs' motion is granted.

I. BACKGROUND

On May 8, 2009, the home where N.J(m). and A.J. lived was destroyed by a fire. At the time, both N.J.(m) and A.J. attended public school in the Malverne Union Free School District. After the fire, the Plaintiffs rented the upstairs apartment of a residence owned by N.J.'s friend E.V., which was located in Lynbrook ("Lynbrook Residence"). Because the Lynbrook Residence was also within the District, N.J.(m) and A.J. continued to attend public school within the District while living there. Although the circumstances surrounding their departure are disputed by the parties, neither party disputes that, at the end of the summer in 2011, the Plaintiffs moved from the Lynbrook Residence to an apartment in the Bronx belonging to N.J.'s boyfriend, V.C. ("the Bronx Residence").

The Bronx Residence, which is located outside of the District, is a single bedroom suite in the basement of a home that V.C. owns and leases to another family. (Compl., ¶ 20.) N.J.(m) and A.J. do not have a bedroom in the Bronx Residence and sleep on a sofa in the living room of the basement. (Id.) According to the Plaintiffs, their living arrangement in the Bronx Residence is not a permanent housing solution, but rather "a temporary situation necessitated by economic hardship". (Compl., ¶ 21.)

In September 2011, the District became aware that N.J.(m) and A.J. were no longer residing within the District and commenced a residency investigation. On September 13, 2011, Thedra McCrae, the Director of Pupil Personnel Services for the Malverne District, sent N.J. a letter informing her that the District had obtained information indicating that she was no longer a resident of the district ("the September 13 Letter"). (McCrae Aff., Ex. C.) The September 13 Letter advised N.J. that if she disputed the allegation of non-residency, she could arrange a meeting with McCrae, where N.J. and the District would have the opportunity to present evidence. (Id.)

On September 19, 2011, N.J. sent an email to the principals of N.J.(m) and A.J.'s schools, stating that she did not have a permanent address. (Id. at Ex. D.) That same day, N.J., accompanied by another District parent, attended a meeting held by the District Registrar, Maureen Madden and McCrae to address the allegations of non-residency ("the Residency Meeting"). (McCrae Aff., ¶ 23--25.) At the conclusion of the Residency Meeting, the District concluded that the Plaintiffs were not residents of the District, and therefore the students would be disenrolled from their schools. According to McCrae, at the conclusion of the Residency Meeting, she advised N.J. that a non-residency determination could be appealed to the Board of Education and provided N.J. with written instructions on how to appeal the non-residency determination. (McCrae Aff., ¶ 30--31.)

Following the Residency Meeting, also on September 19, 2011, N.J. sent a letter to the District stating that N.J.(m) and A.J. were eligible for protection as homeless students under the McKinney-Vento Act, 42 U.S.C. § 114334(a), and the New York Education Law. (McCrae Aff., Ex. F.) In addition, on September 20, 2011, McCrae received a call from Melanie Faby, an associate from the New York State Education Department Homeless Education Program, with regard to N.J.'s claim of homelessness. (McCrae Aff., ¶ 34.) That same day, McCrae forwarded all of the information related to N.J.'s case, including the September 19 Letter and the information provided by Faby, to Spiro Chris Colaitis, the Assistant Superintendent for Business in the District. (McCrae Aff., ¶ 36.)

By letter dated September 20, 2011 from Colaitis to N.J., Colaitis affirmed the District's non-residency determination and further found that N.J.(m) and A.J. did not qualify as "homeless" under the McKinney-Vento Act. (McCrae Aff., Ex. G.) The September 20, 2011 letter also informed N.J. of her right to appeal the decision to the Commissioner pursuant to New York Education Law § 310. (Id.)

In early October, the Plaintiffs attempted to appeal the finding that they were neither residents of the District nor homeless students, but their petition was rejected for insufficient service of process. (See letter from the New York State Education Department to the Malverne District, October 12, 2011, McCrae, Ex. I.) On November 16, 2011, the Plaintiffs filed another petition appealing the District's determination to the Commissioner pursuant to New York Education Law § 310 ("the section 310 appeal"), as well as a stay application that would permit N.J.(m) and A.J. to remain at their schools pending the Commissioner's ruling on their section 310 appeal.

According to the Plaintiffs, the NYSED informed them by phone on November 30, 2011 that their application for a stay was denied. (Compl., ¶ 28.) The NYSED also confirmed the denial of the stay application to N.J. in a December 1, 2011 letter. (McCrae Aff., Ex. J.) As a result of the denial of the stay application, on December 5, 2011, the District sent a letter to N.J. stating that, as of the end of the day on December 6, 2011, N.J.(m) and A.J. would no longer be permitted to attend school within the District. (McCrae Aff., Ex. K.)

On December 6, 2011, N.J., individually and as parent and natural guardian of N.J.(m) and A.J. commenced the instant action against the State of New York, the New York State Education Department, and the Malverne Union Free School District alleging violations of the federal McKinney-Vento Act, 42 U.S.C. § 11431, et seq., New York Education Law § 3209, and 42 U.S.C. § 1983. In addition, by order to show cause, the Plaintiffs filed an application for a Temporary Restraining Order and Preliminary Injunction, seeking to enjoin the Defendants from disenrolling the plaintiff children from the District schools pending the resolution of their section 310 appeal to the NYSED.

On December 12, 2011, the Court held a hearing on the order to show cause. The Court is not aware whether the District had actually excluded the plaintiff children from the District schools as of the date of the hearing. After hearing argument from counsel for all parties, the Court rendered a decision on the record granting the preliminary injunction and stated that a short written decision would follow. This order memorializes the Court's decision rendered on the record at the hearing.

II. DISCUSSION

A. The McKinney-Vento Act and its Implementation under the New York Education Law

The McKinney--Vento Act ("the Act") was enacted in 1987 "to provide urgently needed assistance to protect and improve the lives and safety of the homeless . . . ." Pub.L. No. 100--77, 101 Stat. 525 (codified at 42 U.S.C. § 11431 (1988)). In 2002, the Act was reauthorized as part of the No Child Left Behind Act (NCLBA). Pub.L. No. 107--110, 115 Stat. 1989. The Act requires states to assure that each child of a homeless individual and each homeless youth have access to a free and appropriate public education. 42 U.S.C. § 11431. Under the Act, Congress authorized the Secretary of Education to grant funds to the states that comply with the ...


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