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Decision No. 16,537

Appeal of A.N.Z., on behalf of her son A.Z., from action of the Board of Education of the Fredonia Central School District regarding residency.

Decision No. 16,537

(August 28, 2013)

Wayne A. Vander Byl, Esq., attorney for respondent

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Fredonia Central School District (“respondent”) that her son, A.Z., 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. The appeal must be dismissed.

According to the record, since the 2007-2008 school year, petitioner’s son has been attending the district’s schools. However, on October 13, 2011, petitioner notified the district that she and her son had moved to a residence on Main Street in Dunkirk, New York (“Main Street residence”), outside the district. Petitioner also claimed that she and her son were homeless and that the Main Street residence was only a temporary living arrangement for them.

By letter dated December 16, 2011, the district’s director of instruction (“director”) advised petitioner that a determination had been made that her son was not homeless within the meaning of McKinney-Vento because the Main Street residence was a fixed, regular and adequate night-time residence. The letter further notified petitioner that her son would be excluded from school 30days from the date of the letter. This appeal ensued. Petitioner’s request for interim relief was denied on January 18, 2012.

Petitioner asserts that she and her son were asked to leave their in-district residence, presumably by their landlord. Petitioner further maintains that she has been unable to find another residence within the district that would permit her to keep her dog. Petitioner alleges she and her son share the Main Street residence with five other people, who, based on the record, all appear to be family members. Petitioner also states that A.Z. has his own room at this residence and that he often shares it with his younger brother. Petitioner contends that her son is,

therefore, homeless within the meaning of McKinney-Vento because he 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:

(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 son does not meet the definition of a homeless child under either State or federal law. According to the record, since at least October 2011, petitioner and her son have lived at the Main Street residence, outside the district. The record indicates that petitioner’s son has his own room at the Main Street residence, which he sometimes shares with his younger brother. Petitioner has not proven that this residence is inadequate. While it is unfortunate that petitioner and her son 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 son 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., 47 id. 44, Decision No. 15,620).

Additionally, petitioner makes no assertion that her current Main Street residence is of a temporary or transitional nature. The record shows that petitioner and her son have been living at the Main Street residence for almost two years. 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 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 record does not indicate whether petitioner was given an opportunity to submit information in support of her homeless claim before the district made its final determination. 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 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.

THE APPEAL IS DISMISSED.

END OF FILE