Appeal of S.B., on behalf of her son A.A., from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 15,786

(July 19, 2008)

Law Offices of Paul Ajlouny & Associates, P.C., attorneys for petitioner, Neil Flynn, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her son, A.A., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to continue to attend the district’s schools or to receive transportation.  The appeal must be dismissed.

Petitioner and her son resided within respondent’s school district until July 2007 when, due to a disability, petitioner lost her job and was evicted from her apartment.  Petitioner and A.A. then moved into an apartment outside respondent’s district.

By letter dated September 24, 2007, respondent informed petitioner that A.A. was not a district resident and would be excluded from school effective October 1, 2007.  On October 12, 2007, respondent’s attorney informed petitioner’s attorney that A.A. had been enrolled in respondent’s district and would receive transportation as a homeless child pending the outcome of any appeal pursuant to Education Law §310 (“§310 appeal”).

On October 31, 2007, respondent’s homeless liaison contacted petitioner by letter stating that he was available to assist her in filing a §310 appeal and that the appropriate forms for filing such an appeal were enclosed.

By letter dated December 4, 2007, respondent’s homeless liaison informed petitioner that, because she had not filed a §310 appeal within 30 days of respondent’s September 24, 2007 residency decision, A.A. would be excluded from respondent’s schools as of January 7, 2008.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 16, 2008.

Petitioner asserts that A.A. is a homeless child within the meaning of McKinney-Vento and, therefore, is entitled to attend and receive transportation to and from respondent’s schools.  Petitioner also maintains that respondent’s homeless liaison failed to provide her with the appropriate forms to commence a §310 appeal.  Finally, petitioner alleges that on January 7, 2008, A.A. was informed over the loudspeaker on his bus that he would no longer be able to attend respondent’s schools.  Petitioner claims that this announcement was made “in the presence of other students and outside of my presence or that of any responsible adult.”

Respondent contends that neither petitioner nor her son reside within the district and that they are not homeless within the meaning of McKinney-Vento.  Respondent also maintains that petitioner was provided with the appropriate forms for appealing its determination.  Finally, respondent denies petitioner’s account of A.A.’s January 7, 2008 bus ride and claims that A.A. was the only student transported on that particular vehicle, which was not equipped with a loudspeaker.

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:
   1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
   2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
   3. abandoned in hospitals;
   4. awaiting foster care placement;
      or
   5. 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. child or youth who has a primary night-time location that is:
   1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
   2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation 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 son does not fit the definition of a homeless child under state or federal law.  The record indicates that petitioner and A.A. have a fixed, regular night-time residence.  Petitioner acknowledges that, since July 2007, she and A.A. have lived in a basement apartment in a one-family house outside respondent’s district.  Petitioner claims that this is not a fixed, regular night-time residence because the house is in foreclosure and “we expect to be evicted at any time.”  However, other than her own statements, petitioner has submitted no evidence to support these claims or that she has made any effort to locate an apartment or house within respondent’s district.  In sum, petitioner has not established that her and A.A.’s living arrangement outside the district is temporary or transitional.

Moreover, the record does not support petitioner’s contention that her current housing is inadequate.  Petitioner maintains that “the other tenant in the home was the one who contracted with the utility companies for the provision of heat and electricity.  Since her eviction on November 1, 2007, we have been without heat, hot water and electricity” and that as a result, she and A.A. have been showering and spending the night with friends and family members.  However, respondent claims that during surveillance conducted on January 7, 2008 at approximately 8:30 p.m., its investigator observed lights on in the first floor of petitioner’s building.  Petitioner submits no evidence to the contrary.  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).  Accordingly, based on the record before me, I find respondent’s determination to be reasonable.

Petitioner also claims that respondent’s homeless liaison failed to provide her with the forms necessary to commence a §310 appeal.  However, as noted above, in his October 31, 2007 letter to petitioner, the homeless liaison states:  “I am the designated homeless liaison for the school district.  In that capacity I am available to assist you with the filing of your appeal of the District’s determination.  Enclosed are the forms for filing an appeal.”  Again, other than her own assertions, petitioner submits no evidence to the contrary.  As a result, I find that the record does not support petitioner’s contention.

I have considered petitioner’s remaining contention and find it to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE