Decision No. 17,027
Appeal of CHANTAL LAVENTURE-LOUIS and RENALD LOUIS, on behalf of their son, from action of the Board of Education of the Nyack Union Free School District regarding residency and transportation.
Decision No. 17,027
(January 19, 2017)
Keane & Beane, P.C., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Nyack Union Free School District (“respondent”) that their son (“the student”) is not a district resident. The appeal must be dismissed.
On May 16, 2014, a relative of Mr. Louis executed a residency affidavit indicating that petitioners and the student resided with him at his home located within respondent’s district due to flooding in petitioners’ previous residence. The district admitted the student to its schools, and he attended a district elementary school for the 2014-2015 school year.
In May 2015, due to “lack of space,” petitioners moved to a residence owned by Ms. Laventure-Louis’s uncle which is also located within respondent’s district (the “in-district address”). On June 14, 2015, Ms. Laventure-Louis’s cousin executed a residency affidavit indicating that petitioners and the student resided at the in-district address. The student continued to attend respondent’s schools.
In a letter dated November 18, 2015, the district’s director of pupil personnel services and special education (“director”) indicated that the district possessed “substantial evidence” that petitioners did not reside within respondent’s district. The director further stated that the student would be excluded from respondent’s schools as of November 30, 2015.
On or about November 23, 2015, petitioners submitted documentation supporting their claim that they resided within respondent’s district. In a letter dated November 25, 2015, the director indicated that, after considering petitioners’ documentation, the district would continue to allow the student to attend its schools while it “further determin[ed] [petitioners’] residency ....” The district subsequently initiated an investigation into petitioners’ residency.
Investigators proceeded to conduct surveillance on 20 dates between November 2015 and May 2016. The investigator did not observe petitioners or the student at the in-district address on any of these dates. However, the investigators observed the student leaving from, or returning to, an apartment building in New York City (the “out-of-district address”) with one of the petitioners on three separate occasions. On three occasions, the investigators also observed the student being dropped off before school at another in-district address that petitioners do not claim to be their legal residence, and the student returned to that other in-district address after school on four occasions.
In a letter dated May 18, 2016, the director summarized the results of the district’s surveillance and informed petitioners of the district’s determination that the student was not a district resident. The director gave petitioners until June 1, 2016 to submit evidence demonstrating the student’s residency.
Having received no response from petitioners, the director rendered a final determination in a letter dated June 14, 2016 that the student was not a district resident. This appeal ensued. Petitioners’ request for interim relief was denied on August 31, 2016.
In this appeal, petitioners claim for the first time that they are sharing the housing of other persons due to loss of housing, economic hardship or a similar reason, and are therefore homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”). Petitioners request a finding that the student is homeless and, thus, entitled to attend respondent’s schools tuition-free.
Respondent argues that the appeal must be dismissed, as petitioners have not met their burden to show a clear legal right to the requested relief. Respondent further contends that its determination that petitioners do not reside within the district is supported by the evidence in the record, including its surveillance evidence.
Although the district determined that the student did not reside within the district on June 14, 2016, petitioners inexplicably allege on appeal that the student is homeless and entitled to attend respondent’s schools pursuant to McKinney-Vento. The record reflects that petitioners have not requested that respondent make a determination as to whether the student is homeless and entitled to attend its schools under McKinney-Vento.
While petitioners assert that they are sharing the housing of other persons due to economic hardship, they do not contest the district’s determination that petitioners do not physically reside within the district. The district’s determination that petitioners and the student do not physically reside within the district, then, has become final and binding on petitioners for purposes of this appeal (cf. Appeal of Sitaras and Saint Basil Academy, 44 Ed Dept Rep 320, Decision No. 15,187).
In any event, I note that the district’s residency determination is supported by the evidence in the record. Respondent’s surveillance revealed no evidence that petitioners and the student lived at the in-district address, and instead revealed that the student left from, or returned to, the out-of-district residence with one of the petitioners on three separate occasions. Coupled with the evidence that the student was observed being dropped off at another in-district address on three occasions and then being transported to school (at which petitioners do not claim to reside), and the evidence that the student was observed returning to that in-district address on four occasions, this surveillance evidence indicates that the student does not reside at the in-district residence. Petitioners were provided an opportunity to respond to this evidence, but failed to do so.
In this appeal, petitioners have not met their burden of proving that they are homeless within the meaning of McKinney-Vento. Education Law §3209(1)(a) defines “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 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.
Petitioners make a conclusory allegation that they are sharing housing with a relative due to financial hardship, but have not provided evidence to support that claim. Even if petitioners had provided such evidence, proof of economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221); petitioners must demonstrate that they are sharing housing with another due to loss of housing, economic hardship or a similar reason. On this record, petitioners have failed to prove that they are actually sharing housing with anyone. The record indicates that petitioners have housing in the out-of-district residence, and petitioners have failed to prove that the student lacks a fixed, regular and adequate night-time residence. The appeal must therefore be dismissed.
THE APPEAL IS DISMISSED.
END OF FILE
 The record reflects that the student attended a different district elementary school for the 2015-2016 school year.
 The director allowed the student to remain enrolled in respondent’s district until he rendered a final determination as to the student’s residency.
 Specifically, the student was observed with one of petitioners at the out-of-district residence on December 4, 2015, April 12, 2016, and April 20, 2016.
 Effective December 10, 2016, children or youth awaiting a foster care placement are no longer included in the definition of homeless under McKinney-Vento as amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][E][i]; 42 U.S.C. §11432[g][A]).
 Effective October 1, 2016, McKinney-Vento was amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][E][i]; 42 U.S.C. §11432[g][A]). The circumstances which gave rise to this appeal occurred prior to October 1, 2016. As a result, the requirements of McKinney-Vento and the conforming provisions of Education Law §3209 and Commissioner’s regulation §100.2(x) in effect prior to October 1, 2016 are applicable to this appeal.