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Decision No. 13,183

Appeal of LINDA ALTMAN, on behalf of her children, MICHAEL, JASON, TARA and TIFFANY, from action of the Board of Education of the Nyack Union Free School District, regarding residency.

Decision No. 13,183

(May 19, 1994)

Legal Aid Society of Rockland County, Inc., attorneys for petitioner, Alexander Bursztein, Esq., of counsel

Plunkett & Jaffe, P.C., Esqs., attorneys for respondent, Jamie H. Cotel, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her children, Michael, Jason, Tara and Tiffany, are not homeless within the meaning of '100.2(x) of the Commissioner's regulations and, therefore, are not entitled to continue to attend school in respondent Nyack Union Free School District. The appeal must be sustained.

Petitioner's children have been enrolled in the district since 1989. The record indicates that in 1988 petitioner and her family were evicted from their home in respondent district. They now live in a motel located in the East Ramapo Central School District. On October 15, 1993, respondent notified petitioner that her children must attend the East Ramapo CSD rather than respondent district, because respondent does not deem her children to be homeless within the meaning of '100.2(x) of the Commissioner's regulations. This appeal followed. Respondent has agreed to allow petitioner's children to remain enrolled in the district pending my decision in this matter.

Petitioner seeks to have me declare her children homeless within the meaning of 8 NYCRR 100.2(x), enabling her to continue their enrollment in respondent district. Respondent asserts that petitioner's children cannot continue to attend school in its district because they aren't homeless pursuant to '100.2(x) because they don't receive any assistance or services from the local department of social services.

Section 100.2(x) of the Commissioner's regulations states in pertinent part:

(i) Homeless child means a child entitled to attend school in the State of New York who, because of the unavailability of permanent housing, is living in a hotel, motel, shelter, or other temporary living arrangement in a situation in which the child or his or her family is receiving assistance and/or services from a local social services district...

(2) The parent or person in parental relation to a homeless child... may designate either the school district of current location or the school district of last attendance as the district in which such child shall attend upon instruction.

In cases challenging a student's residency, the party alleging a change in residence bears the burden of proof (Appeal of Virginia L., 32 Ed Dept Rep 132; Appeal of Gibson, 31 id. 284; Appeal of Bonfante-Ceruti, 31 id. 38). As the party challenging petitioner's entitlement to attend its schools, respondent bears the burden of proof that petitioner is not homeless pursuant to 8 NYCRR 100.2(x). Respondent provided sworn statements from their personnel alleging that, according to department of social services ("DSS") personnel, petitioner is not receiving assistance or services from the local DSS. Although requested by my Office of Counsel, respondent failed to supply proof of this assertion. However, petitioner presented a sworn statement from the Director of Legal Services for the Rockland County DSS ("RCDSS") asserting that petitioner does receive medicaid and services from "Preventive Services" of the RCDSS to ensure compliance with family court orders. The sworn statement also indicated that until December 1993, petitioner and her family were receiving home relief and food stamps.

Respondent has not met its burden of proof. The record indicates that petitioner does receive assistance and services from the RCDSS and, therefore, is homeless within the meaning of '100.2(x) of the Commissioner's regulations. Under '100.2(x)(2), petitioner is, therefore, entitled to send her children to school in respondent district as the district of last attendance.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow petitioner's children to remain enrolled in its district unless petitioner elects to enroll her children in the school district of current location in accordance with '100.2(x) of the Commissioner's regulations.

END OF FILE