Appeal of E.B., on behalf of her granddaughter A.B., from action of the Board of Education of the Massapequa Union Free School District regarding residency. 

Decision No. 15,638

(August 16, 2007)

Guercio & Guercio, attorneys for respondent, Randy Glasser, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that her granddaughter, A.B., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 etseq., “McKinney-Vento”).  The appeal must be dismissed.

It is undisputed that petitioner is her granddaughter’s guardian and that petitioner and her family were evicted from their home within the district on July 14, 2006.  Petitioner was permitted to enroll her granddaughter in respondent’s schools for the 2006-2007 school year based on her representation that, due to loss of housing, she and her family were homeless and sharing the housing of another person or persons outside of the district.  On or about September 8, 2006, petitioner submitted a Massapequa Public Schools Education Program for Homeless Students form and a STAC 202 – Designation of School District of Attendance for a Homeless Child form to respondent, pursuant to §100.2(x) of the Commissioner’s regulations, designating respondent’s district as her granddaughter’s school district of attendance.

Subsequently, the district commenced an investigation to determine where petitioner and her family were residing.   By letter dated October 12, 2006, the district’s assistant superintendent advised petitioner that a hearing was scheduled for October 31, 2006 because there was a question regarding A.B.’s residence.  At petitioner’s request, the hearing was rescheduled to November 2, 2006.

According to the record, during the hearing, petitioner claimed that she and her family were illegally evicted from their home within the district.  Petitioner asserted that she had filed complaints against her landlord with the New York State Division of Human Rights and the United States Department of Housing and Urban Development.   Petitioner submitted copies of these complaints to the district.  Petitioner stated that immediately after the eviction, she and her family stayed at various hotels or her daughter’s (A.B.’s mother’s) apartment in Hollis, Queens, New York. 

Petitioner also stated that on or about September 1, 2006, she and her husband entered into a one-year lease for a fully furnished three-bedroom house on 180th Street in St. Albans, Queens, New York (“St. Albans residence”).  Petitioner submitted a copy of this lease and an addendum to the district.  The lease indicates that petitioner pays $1,800 a month to rent the house and that the landlord lives in the basement.

Petitioner stated that she considered herself and her family to be homeless because all their furniture, possessions and clothing are in storage.  Petitioner also asserted that she and her family are homeless because they are living in someone else’s house with someone else’s furniture and sharing the kitchen with their landlord, which sometimes causes them to go out to eat.  Petitioner alleged that her current residence is temporary because she intends to move back to the district.  Petitioner also asserted that she unsuccessfully attempted to purchase a home within the district in August 2006. 

By letter dated November 6, 2006, the assistant superintendent advised petitioner that a determination had been made that her granddaughter was not homeless within the meaning of McKinney-Vento because she was residing at the St. Albans residence and that she would be excluded from respondent’s schools after November 22, 2006.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 22, 2006.

Subsequently, on or about December 5, 2006, petitioner submitted an application to the United States District Court for the Eastern District of New York for a temporary restraining order and preliminary injunction to allow her granddaughter to continue attending the district’s schools.  By decision dated December 13, 2006, the Court denied this application and dismissed the case on the grounds that petitioner had failed to exhaust her administrative remedies.

Petitioner contends that her granddaughter is homeless within the meaning of McKinney-Vento and, therefore, is entitled to continue her enrollment in respondent’s district.  Petitioner claims that she and her family lack a fixed, regular and adequate night-time residence and that they are sharing the housing of another person, their landlord, due to loss of housing.  Petitioner alleges that her current residence is temporary and transitional housing because her family’s clothing and other possessions are in storage and they intend to move back to the district.  Petitioner maintains that this residence is temporary, transitional and inadequate because her daughter (A.B.’s aunt) and A.B. are sharing the bedroom of her landlord’s daughter, who is away at college.

To substantiate her claims, petitioner submits a STAC-202 Designation of School District of Attendance for a Homeless Child form, dated September 8, 2006; a Massapequa Public Schools Education Program for Homeless Students form, dated September 8, 2006; the assistant superintendent’s November 6, 2006 letter; the addendum to her lease for the St. Albans residence; a County of Nassau Sheriff’s Department Notice to Vacate, dated July 6, 2006; a Nassau County District Court Amended Hold Over Warrant, dated May 22, 2006; a New York State Division of Human Rights Notice of Conference and Production of Records, dated November 9, 2006; the rider to the lease agreement for petitioner’s former residence in Massapequa Park, New York; a Coldwell Banker listing for a residence on Koehl Street in Massapequa Park, New York; a Coldwell Banker Acknowledgement of Prospective Buyer form, dated August 8, 2006; and a Uniform Residential Loan Application.

Respondent contends that petitioner’s granddaughter is not entitled to attend the district’s schools because she is not homeless within the meaning of McKinney-Vento and Education Law §3209. 

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 granddaughter does not fit the definition of a homeless child under either State or federal law.  The record shows that petitioner and her family reside in a fully furnished three-bedroom house outside of the district.  A.B. has a fixed, regular night-time residence and there is insufficient evidence on the record that such residence is inadequate.  The petition includes only conclusory statements from petitioner that her current residence is inadequate because she and her family share the kitchen with their landlord, who resides in the basement, and her daughter and A.B. share the bedroom of her landlord’s daughter, who is away at college.  While it is unfortunate that petitioner and her family were evicted from their last home, there is no proof in the record that petitioner lives in a shelter or other accommodation described in Education Law §3209. Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (Appeal of M.W., 46 Ed Dept Rep 151, Decision No. 15,471; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108; Appeal of D.R., 43 id.  133, Decision No. 14,944).

     Additionally, petitioner has not established that her current residence is temporary or transitional.  The petition only contains conclusory statements by petitioner that her current residence is temporary.  The fact that petitioner is renting a house and intends to move back to the district does not make the residence temporary or transitional.  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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Under these circumstances, I find respondent’s determination -- that petitioner’s granddaughter is not homeless –- to be reasonable.

THE APPEAL IS DISMISSED.   

END OF FILE