Decision No. 16,950
Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Sayville Union Free School District regarding residency and transportation.
Decision No. 16,950
(August 22, 2016)
Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sayville Union Free School District (“respondent”) that her son (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation. The appeal must be sustained in part.
The record indicates that, during the 2014-2015 school year, petitioner and the student resided within respondent’s district prior to becoming homeless and relocating to housing outside the district in April 2015. The student received preschool special education services from April through June 2015, although the record is not entirely clear as to whether such services were recommended by respondent’s committee on preschool special education. Petitioner subsequently sought to enroll the student in the district’s schools for the 2015-2016 school year as a homeless student. Petitioner alleges that she and the student currently reside at a motel or hotel outside the district that is a shelter designed to provide temporary living accommodations.
By letter dated August 19, 2015, the superintendent informed petitioner of respondent’s determination that the student is not homeless within the meaning of McKinney-Vento and Education Law §3209 because the student was not enrolled in the district at the time the family became homeless.
This appeal ensued. Petitioner’s request for interim relief was granted on September 2, 2015.
Petitioner contends that she and her son are homeless within the meaning of McKinney-Vento because they are living in a motel or hotel due to the lack of alternative adequate accommodations. In her petition, petitioner claims that the student is residing at a motel or hotel outside the district in a single room with a separate bathroom and that he has his own bed.
Respondent asserts that the district is not the student’s school district of origin as defined in Education Law §3209 and §100.2(x) of the Commissioner’s regulations and, as such, the student is not entitled to attend respondent’s district tuition-free. Respondent maintains that it acted properly at all times and has complied with all applicable laws, regulations, and policies, including Education Law §3209 and §100.2(x)-(y) of the Commissioner’s regulations.
Education Law §3209(1)(a) defines “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 ....
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., 48 id. 348, Decision No. 15,882).
Under the circumstances presented in this case, I find that the student fits the definition of “homeless child” under State and federal law. Petitioner asserts that the student does not have a fixed, regular, and adequate nighttime residence and is living in a motel or hotel outside the district that is a shelter designed to provide temporary living accommodations. Petitioner states that the motel or hotel room is a single room with a separate bathroom and that the student has his own bed. By its very nature, petitioner’s and the student’s housing in a motel or hotel is temporary and transitional and they cannot be said to have a fixed, regular, and adequate nighttime residence (see Education Law §3209[a][ii], [i]; see e.g. Appeal of R.G., 41 Ed Dept Rep 428, Decision No. 14,736; Appeal of Woodward, 27 id. 442, Decision No. 12,003; cf. Appeal of Curtin, 27 id. 446, Decision No. 12,005). Accordingly, the appeal is sustained to the extent petitioner requests a determination that the student is a homeless child.
However, respondent contends that, at the time petitioner became homeless in or about April 2015, during the 2014-2015 school year, the student was not eligible to attend the district’s schools. Pursuant to Education Law §3209(2)(a)(2) and §100.2(x)(2)(i)(b) of the Commissioner’s regulations, a homeless student is entitled to attend school in his or her school district of origin, which is defined as the school district “in which the homeless child was attending a public school on a tuition-free basis or was entitled to attend when circumstances arose which caused such child to become homeless...” (Education Law §3209[c]; 8 NYCRR §100.2[x][iii]). According to respondent, since the student was not eligible to attend and, in fact, did not attend a school in its district when the child became homeless in April 2015, respondent’s district is not the school district of origin and, therefore, he is not entitled to attend its schools.
Education Law §3202(1) provides that “[a] person over five and under twenty-one years of age ... is entitled to attend public schools maintained in the district in which such person resides without the payment of tuition.” Similarly, a homeless child as defined in Education Law §3209(1), “over the age of five and under twenty-one years of age” who has not received a high school diploma is also entitled to attend a public school in accordance with Education Law §3209 (Education Law §3202). Further, according to respondent’s Policy #5140, entitled, “Entrance Age” (“Policy #5140”), “[c]hildren reaching the age of five years on or before December 1st of a given school year shall be eligible for admission to kindergarten in the preceding September. Children reaching the age of five years after December 1st will not enter kindergarten until the following September.”
The record indicates that the student did not reach the age of five before December 1, 2014 and was therefore not entitled to attend the district’s schools during the 2014-2015 school year pursuant to respondent’s Policy #5140 and Education Law §3202(1). Additionally, there is no information in the record that the student has attended a public school in respondent’s district at any time. Respondent asserts as much on appeal, and petitioner did not submit a reply or other evidence to refute respondent’s contention.
McKinney-Vento and corresponding portions of the Education Law require districts to afford homeless children equal access to educational programs (42 USC §11431). However, the determination as to what programs a district must offer is governed by State law and district policy, including entrance age policies. As explained above, the student would not have been entitled to attend respondent’s schools when he became homeless in April 2015 under State law and Policy #5140. Because the district would not enroll any in-district resident in its schools under these circumstances, McKinney-Vento and the Education Law do not change this result.
It appears from the record that, during the 2014-2015 school year, the student received preschool special education services from April through June 2015. Respondent does not dispute that the student received such services from April through June 2015. This fact, however, is not relevant to the relief sought by petitioner; namely, enrollment in respondent’s schools.
Accordingly, I find that, upon becoming homeless in April 2015, the student was not entitled to designate respondent’s district as his school district of origin (cf. Appeal of R.W., 49 Ed Dept Rep 73, Decision No. 15,962).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
END OF FILE
 I note that Education Law §4410-a(2) provides that the school district of current location of a homeless child is responsible for the evaluation and placement procedures prescribed for a preschool child suspected of having a disability. Contract and payment responsibility for such services for homeless children lie with the appropriate municipality (county) pursuant to Education Law §4410-a(3) and (4).
 Although respondent’s August 19, 2015 determination letter concludes that the student is not homeless within the meaning of McKinney-Vento and Education Law §3209, respondent does not appear to dispute in the instant appeal that the student lacks a fixed, regular, and adequate nighttime residence.
 As noted above Educational Law §4410-a pertains to CPSE evaluation and placement responsibility as well as to contract and payment responsibility and does not contain designation provisions as are found in Education Law §3209.