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Decision No. 16,512

Appeal of M.Y., on behalf of his children B.Y. and C.Y., from action of the Board of Education of the Freeport Union Free School District regarding residency and transportation.

Decision No. 16,512

(July 26, 2013)

Ingerman Smith, L.L.P., attorneys Walker, Esq., of counsel for respondent, Noah

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

Petitioner initially enrolled his children in respondent’s schools in September 2006, from an address within the district. In September 2010, petitioner reregistered his children using a different in-district address.

Later in September 2010, the principal clerk of the district’s central registry (“clerk”), received an anonymous tip that petitioner’s children did not reside within the district. The clerk purportedly learned later that petitioner and his family were residing outside of the district in Hempstead, New York (“Hempstead address”). The district commenced an investigation and surveillance.

As a result, by letter dated April 13, 2011, the clerk notified petitioner of his determination that petitioner resided outside of the district and, therefore, his children were not eligible to attend its schools without payment of tuition. Petitioner was informed that his children would be excluded from school on April 29, 2011,but that he could contest the determination in writing to the superintendent.

By letter dated April 13, 2011, petitioner’s wife appealed the clerk’s determination to the superintendent asking only that the children be permitted to finish out the school year and receive transportation. Although the record does not include a copy of any decision by the superintendent, the request was apparently granted to the extent that the exclusion date was moved to June 30, 2011.

The record indicates that, due to a clerical error, petitioner’s children were again enrolled in respondent’s schools in September 2011. In March 2012, the error was discovered and, by letter dated March 12, 2012, the clerk notified petitioner that his children would be excluded from school on March 21, 2012. The notice again stated that the determination could be contested, in writing, to the superintendent.

By letter dated March 20, 2012, petitioner’s wife wrote to the superintendent again asking that her children be permitted to continue to attend school in the district at least until the end of the 2011-2012 school year. Petitioner’s children were permitted to remain in respondent’s schools until June 22, 2012. Similarly, the record contains no written determination by the superintendent.

In September 2012, petitioner apparently met with respondent’s executive director of operations (“executivedirector”) regarding his children’s attendance in the district in the 2012 – 2013 school year. By letter dated September 5, 2012, the executive director informed petitioner that his children would not be permitted to attend respondent’s schools for the 2012-2013 school year. That correspondence informed petitioner of his right to appeal the determination to the Commissioner of Education. This appeal ensued. Petitioner’s request for interim relief was denied on September 21, 2012.

Petitioner contends that his children are homeless within the meaning of McKinney-Vento because they are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. Petitioner states that he and his wife lost their in-district home because they were unable to pay their mortgage. Petitioner also states that he was injured at his job and has not worked since July 2010. Petitioner describes his current out-of-district living arrangements as follows: “There are 3 adults and 7 children living in a6 bedroom house that is overcrowded.”

Respondent asserts that petitioner’s children are not district residents nor are they homeless within the meaning of McKinney-Vento. Respondent maintains that, therefore, its determination that B.Y. and C.Y. are not entitled to attend its schools is not arbitrary or capricious.

Petitioner does not dispute that he and his children reside outside of respondent’s district in Hempstead.

Petitioner’s claim that they are homeless, however, is not supported by the record.

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

1. a child or youth who lacks a fixed, regular, and adequate nighttime 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 nighttime 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 accommodation for human beings

Section 100.2(x) of the Commissioner’s regulations also conforms 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).

Based on the record before me, I find that petitioner’s children do not meet the definition of homeless children under either State or federal law. Petitioner argues that he is homeless because he and his children are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. However, aside from conclusory assertions that he became homeless due to “an adjustable rate mortgage,” and loss of his job and income, petitioner produces no evidence to support his claim.

Moreover, petitioner has produced no evidence that he and his children lack a fixed, regular and adequate nighttime residence or are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).

To the contrary, petitioner and his family have resided at the Hempstead address since March 2011. Moreover, petitioner previously indicated to respondent that the Hempstead address contains six bedrooms that were adequately divided among the inhabitants with one room each for the adult couples and the remaining four rooms divided among the seven children.

Based on the record before me, petitioner has failed to meet his burden of proving that his children are homeless under State or federal law. Accordingly, I cannot conclude that respondent’s determination that petitioner’s children are not homeless and are not entitled to attend district schools is arbitrary or capricious.

As a final matter, although not raised by petitioner, it is unclear from the record whether respondent complied with all procedural requirements set forth in §100.2(x)and/or §100.2(y) of the Commissioner’s regulations in rendering its determination. I remind respondent to ensure such compliance in making determinations concerning residency and/or homelessness.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner has the right to reapply for admission on his children’s behalf at any time, particularly if his living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE