Appeal of D.S., on behalf of her daughter D.S., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 16,503

(July 19, 2013)

Ingerman Smith L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter, D.S., is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and is therefore not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.

According to the record, in 2005, petitioner registered D.S. in respondent's district listing an in-district address as her family’s residence. However, on or about June 11, 2012, petitioner submitted to the district a Change of Student Information Form indicating that her family had changed its address to one in Massapequa, New York (“Massapequa address”), outside the district. Based on petitioner’s claims of homelessness, the district continued her daughter’s enrollment in its schools.

In February 2013, the district’s homeless liaison (“liaison”) conducted a home visit at the Massapequa address to determine whether petitioner’s family’s living arrangement was still temporary. According to the liaison, during this visit, petitioner informed him that her family had been evicted from their in-district residence in June 2012¹ and that they were temporarily staying with petitioner’s friend at the Massapequa address.

During this visit, the homeless liaison observed that petitioner and her daughter had their own bedrooms, which contained their respective personal belongings. He further observed that the person with whom that they were living also had her own bedroom.

Subsequently, by letter dated February 20, 2013, the district’s director of pupil services advised petitioner that a determination had been made that her daughter was not homeless within the meaning of McKinney-Vento and that she would be excluded from school effective June 21, 2013. The letter also informed petitioner that the district would permit her daughter to complete the 2012-2013 school year in its schools, but that petitioner would have to register her daughter in her local district’s schools for the 2013­2014 school year. This appeal ensued. Petitioner’s request for interim relief was rendered moot by respondent’s determination to permit her daughter to continue attending its schools until the end of the 2012­2013 school year.

1. The liaison avers that, in March 2013, petitioner informed him that she had not been able to find the June 2012 eviction notice.  

In the petition, petitioner asserts that her family was forced to move in with a family member at the Massapequa address after their in-district residence was sold. Petitioner contends that her daughter is, therefore, homeless within the meaning of McKinney-Vento because she is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason. Petitioner submits no documentation to substantiate her claims.

Respondent argues that the student is not homeless within the meaning of McKinney-Vento.

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:

2

(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 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.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

On the record before me, I find that petitioner’s daughter does not meet the definition of a homeless child under either State or federal law. According to the record, since at least June 2012, petitioner and her daughter have lived at the Massapequa residence outside the district. The record indicates that the Massapequa residence has three bedrooms and that petitioner and her daughter each have their own separate bedrooms. Petitioner does not assert that this residence is inadequate. Thus, the record indicates that petitioner and her daughter have a fixed, regular night-time residence, and petitioner has not established that such residence is inadequate. While it is unfortunate that petitioner and her daughter had to leave their district residence, there is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209. Thus, petitioner has failed to demonstrate that her daughter lacks a fixed, regular and adequate night-time residence and is homeless (see Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeals of P.R., 48 id. 24, Decision No. 15,781; Appeal of S.D., 47id. 44, Decision No. 15,620).

Additionally, petitioner makes no assertion that her current residence in Massapequa is of a temporary or transitional nature. The record shows that petitioner and her daughter have been living at the Massapequa residence for approximately a year. In addition, there is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she and her daughter can reside there (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of J.U., 50id., Decision No. 16,095). Accordingly, based on the record before me, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

Although petitioner does not raise this issue and it does not affect the outcome of this appeal, I am compelled to comment on respondent’s failure to comply with certain requirements of 8 NYCRR §100.2(x)(7). If, as in this case ,a district disputes that a student is homeless, it must follow the dispute resolution procedures established in Commissioner’s regulations, including providing the student and/or the student’s parents an opportunity to submit information before making a final determination (8 NYCRR §100.2[x][7][ii][a]). At the conclusion of this dispute resolution process, if the district determines that a student is not homeless, it must provide written notice that the student is not entitled to attend its schools and the basis for the determination (8 NYCRR §100.2[x][7][ii][b]). The notice also must state that the determination may be appealed to the Commissioner of Education and contain the name and contact information for the school district’s homeless liaison, who is required to assist in filing such an appeal, along with a form petition(8 NYCRR §§100.2[x][7][ii][b], [iii][c][1] and [2]).

In this case, the February 20, 2013 letter to petitioner failed to explain the basis for the district’s determination that petitioner’s daughter was not a homeless child or youth within the meaning of McKinney-Vento. The letter merely stated that “[a]fter reviewing the records we have, the district does not feel that you qualify as temporarily housed under the McKinney-Vento Homeless Act. ”I remind respondent of the importance of ensuring that the educational needs of this vulnerable population are met and I admonish respondent to ensure that all such students are properly served in accordance with the State and federal requirements designed to protect their educational welfare.

Finally, I note that petitioner has the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, particularly if her living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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