Appeal of M.W., on behalf of her children M.C. and J.C., from action of the Board of Education of the Brockport Central School District regarding transportation and residency.

 

Decision No. 15,471

 

(September 26, 2006)

 

Harris Beach, PLLC, attorneys for respondent, Linda G. Kelly, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Brockport Central School District (“respondent”) to provide transportation for her children, M.C. and J.C., based on its determination that her children are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC �11431 etseq., “McKinney-Vento”).  The appeal must be dismissed.

During the summer of 2005, petitioner and her family moved out of New York State so that her husband could pursue job opportunities.  When these opportunities did not work out, the family was evicted from their home and moved back to New York State to live with a relative.  On or about October 26, 2005, petitioner was permitted to enroll her children in respondent’s schools based on her representation that, due to a loss of housing and economic hardship, she and her children were homeless and sharing the housing of another person who resided in the district.

On or about December 1, 2005, petitioner notified the district’s registrar and homeless liaison (“homeless liaison”) that she had rented a house on River Street in Rochester, New York, outside of the district.  By letter dated December 7, 2005, the homeless liaison advised petitioner that a determination had been made that her children were not homeless within the meaning of McKinney-Vento and that they would not be provided transportation to and from the district’s schools.  According to the homeless liaison’s affidavit, petitioner was advised that, even though the district would no longer provide her children with transportation, they could continue attending the district’s schools for the remainder of the school year.  This appeal ensued.  Petitioner’s interim request for relief was denied on January 18, 2006.

Petitioner contends that her children are homeless within the meaning of McKinney-Vento and, therefore, are entitled to receive transportation between the River Street residence and the district’s schools.  Petitioner claims that she and her children lack a fixed, regular and adequate night-time residence and that they are sharing the housing of another person due to loss of housing and economic hardship.  Petitioner further alleges that her current residence is temporary because she did not sign a lease and intends to move back to the district.  She claims that initially she could only afford one month’s rent and that she did not pay a security deposit.  Petitioner also maintains that removing her children from the district’s schools would be harmful to them because school is the only stable and consistent factor in their lives. 

To substantiate her claims, petitioner submits a letter from the landlord stating that he offered his River Street rental property to petitioner and her children as a temporary solution.  Petitioner also submits a letter from the district’s Committee on Special Education (“CSE”) that recommends that petitioner’s daughter receive special education services.  In addition, petitioner submits a letter from her daughter stating that she wants to remain in the district’s school until she graduates from high school, because she has moved many times and does not want to begin again at a new school.  

Respondent contends that petitioner’s children are not entitled to transportation to and from their River Street residence and the district’s schools because they are not homeless within the meaning of McKinney-Vento and Education Law �3209.  It submits photographs of the River Street residence to substantiate its contention.

Education Law �3209(1)(a) defines a homeless child as:

(1)         a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i)                     sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii)                living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii)           abandoned in hospitals;

(iv)                awaiting foster care placement;

or

(v)                  a migratory child ... who qualifies      as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2) a child or youth who has a primary night-time location that is:

(i)                     a supervised publicly or privately operated shelter designed to provide temporary living accommodations...; or

(ii)   a public or private place not designed for, or ordinarily used as, a regular sleeping accom-modation for human beings. . . .

Both Education Law �3209 and �100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento.

Petitioner’s children do not fit the definition of homeless children under either State or federal law.  The record shows that petitioner and her family reside in a house outside the district.  They have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  There also is no evidence they are sharing the housing of other persons due to loss of housing and economic hardship.  While it is unfortunate that petitioner and her children were evicted from their last home and that they were forced to move several times in the past year, there is no proof in the record that petitioner lives in a shelter or other accommodation described in Education Law �3209. Consequently, neither the provisions of Education Law �3209(2) and McKinney-Vento regarding choice of school district for homeless children (Appeal of a Student with a Disability, 44 Ed Dept Rep 94, Decision No. 15,108; Appeal of D.R., 43 id.  133, Decision No. 14,944) nor the provisions of Education Law �3209(4) and McKinney-Vento regarding the transportation of homeless children are applicable in petitioner’s circumstances.

Additionally, petitioner has not established that her current residence is temporary or transitional.  The petition contains only conclusory statements by petitioner that her current residence is temporary. The fact that petitioner is renting a house on a month-to-month basis and intends to move back to the district does not make the residence temporary or transitional.  Furthermore, there is no evidence that she needs to vacate her current residence. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Under these circumstances, I find respondent’s determination -- that petitioner’s children are not homeless and, therefore, not entitled to transportation -- reasonable.

 

THE APPEAL IS DISMISSED.

END OF FILE