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Decision No. 16,536

 

 Appeal of K.L., on behalf of her son Z.L., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 16,536

(August 28, 2013)

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

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

The record indicates that until approximately October2011, petitioner resided within respondent’s district, where her son attended school. On or about October 24,2011, petitioner informed the district that she and her son had been evicted from their district residence and that they were homeless. On or about October 31, 2011, during a meeting with respondent’s homeless liaison, petitioner stated that she and the student were residing with her parents in Shirley, New York (“Shirley address”), outside the district. Based on petitioner’s claims of homelessness, the district continued her son’s enrollment in its schools and provided him with transportation.

By letter dated June 20, 2012, which was mailed to petitioner at the Shirley address, the homeless liaison advised petitioner that he had several concerns regarding her son’s continued enrollment in the district’s schools. The letter further stated that the homeless liaison had been unable to contact petitioner at the telephone numbers the district had on file for her and that it had come to the district’s attention that petitioner and her son might no longer be residing at the Shirley address. The letter also notified petitioner of a meeting scheduled for July12, 2012, to discuss her current living situation and advised her to bring any documentation she had regarding her current living situation to this meeting. In addition, the letter informed petitioner that, if she was unable to

prove that she and her son were still living in temporary housing, her son would no longer be entitled to attend the district’s schools. According to respondent, petitioner neither responded to this letter nor attended the scheduled meeting.

By letter dated July 12, 2012, which was mailed to the Shirley address, respondent’s director of pupil services informed petitioner that a determination had been made thither son was no longer entitled to attend the district’s schools. The letter stated that the basis for this determination was that the district was unable to substantiate the residency of petitioner’s family due to her failure to respond to the district’s request for additional information regarding her housing status. The letter further stated that petitioner’s son would be excluded from attendance, effective July 20, 2012. The letter also notified petitioner that the district had determined that her son was not a homeless student within the meaning of McKinney-Vento.

According to respondent, on or about September 12,2012, petitioner contacted the district and stated that she had just received the July 12, 2012 letter because it was sent to her temporary address, by which she presumably meant the Shirley address.

On or about September 28, 2012, petitioner went to the district’s registration office where she was provided with a copy of the July 12, 2012 letter and the paperwork she needed to commence this appeal. According to respondent, petitioner was also given the opportunity to meet with the homeless liaison in order to get assistance in commencing this appeal. The district re-enrolled petitioner’s son in its schools pending a determination on petitioner’s request for interim relief and/or a determination on this appeal. This appeal ensued. Petitioner’s request for interim relief was denied on October 24, 2012.

Petitioner contends that her son is homeless within the meaning of McKinney-Vento because he is sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. To substantiate her claims, petitioner further alleges that, in addition to her parents, she and her son are sharing housing with six other relatives. Petitioner also submits copies of an eviction notice and her lease for her former district residence.

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:

(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 the student does not meet the definition of a homeless child under either State or federal law. Since October 2011, petitioner and her son have resided in her parents’ home outside the district. Although petitioner claims that, including herself and her son, 10 family members are sharing this home, she submits no documentation to substantiate this claim, nor has she provided any details concerning the living arrangements at the Shirley residence. Petitioner has not proven that the residence is inadequate, and there is no evidence in the record that it is inadequate. While it is unfortunate that petitioner and her son were evicted from 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 failed to demonstrate that her son lacks a fixed, regular and adequate night-time residence and is homeless (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 S.D., 47 id. 44, Decision No. 15,620).

Additionally, petitioner has not established that her current residence with her parents in Shirley is of a temporary or transitional nature. In fact, petitioner makes no assertions that her current residence is temporary or transitional. The record further shows that petitioner and her son have been living in her parent’s residence for over 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 son 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., 50 id., 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 the appeal must be dismissed for the reasons set forth above, 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 July 12, 2012 letter to petitioner failed to specifically state the basis for the district’s determination that petitioner’s son was not a homeless child or youth within the meaning of McKinney-Vento. The letter merely stated that petitioner and her son did “not meet the criteria of being temporarily housed under . . . McKinney-Vento . . . .” I remind respondent of the importance of ensuring that the educational needs of this vulnerable population is 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.

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

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE