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Decision No. 17,200

Appeal of C.M., on behalf of her child J.P., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 17,200

(September 27, 2017)

Ingerman Smith, LLP, attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that J.P. (“the student”) was not residing within the district at the time of enrollment, and is therefore not eligible to attend the district’s schools’ tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The record indicates that in March 2016 petitioner, the student, and petitioner’s other child relocated from Florida and were temporarily residing in a hotel in Woodbury, New York.  Petitioner indicates that on April 9, 2016, she and her children moved from the hotel to the home of a friend within the Baldwin Union Free School District. 

The record indicates that on April 12, 2016, petitioner attempted to enroll the student in respondent’s schools.  According to respondent, petitioner began to enroll the student by filling out the registration questionnaire but because she did not have the student’s birth certificate, petitioner did not complete enrollment at that time.  Also according to respondent, petitioner indicated that she would return shortly to complete the student’s enrollment.

The record indicates that petitioner did not return to the district to complete enrollment until June 7, 2016.  On that date, petitioner provided a copy of the student’s birth certificate to completing the student’s enrollment. Respondent admitted the student to school on June 8, 2016.  Subsequently, on June 15, 2016, respondent’s homeless liaison spoke to petitioner.  The liaison avers that during this conversation petitioner indicated that she and the student moved to a shelter outside of respondent’s district and within the geographic bounds of the Hempstead Union Free School District on June 6, 2016.

By letter dated June 24, 2016, respondent’s director of pupil services (“director”) informed petitioner that because the district did not believe that the student was residing within the district at the time of enrollment or had previously been enrolled in the district, he was ineligible to attend respondent’s schools.  The director’s letter further indicated that the student would be permitted to continue to attend school through the end of the school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 17, 2016.

Petitioner contends that she and her son are homeless within the meaning of McKinney-Vento because they live in a homeless shelter. Petitioner further contends that the student is entitled to attend respondent’s schools because prior to moving to the shelter on June 6, 2016, she and the student were residing in temporary housing within the district.  Petitioner further asserts that she and the student continue to be homeless within the meaning of McKinney-Vento. 

Respondent does not dispute that petitioner and the student are homeless within the meaning of McKinney-Vento.  However, respondent contends that the student is not entitled to attend its school’s tuition-free because the district is neither the school district of origin, nor the school district of current location as defined in Education Law §3209 and Commissioner’s regulation §100.2(x).  Respondent further contends that the student has never resided within the boundaries of the district, on either a temporary or permanent basis.  Respondent asserts that petitioner has failed to state a claim upon which relief may be granted.

At all times relevant to this appeal, 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;[1] 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 ....

At all times relevant to this appeal, Education Law §3209 and §100.2(x) of the Commissioner’s regulations provided that a homeless child or youth has the right to designate either the school district of origin, or the school district of current location, as the school district within which the child is entitled to attend upon instruction.

At all times relevant to this appeal, Education Law §3209(1)(c) and §100.2(x)(1)(iii) of the Commissioner’s regulations defined school district of origin as:

[T]he school district within the state of New York 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, which is different from the school district of current location.

Education Law §3209(1)(d) and §100.2(x)(1)(iv) of the Commissioner’s regulations defined school district of current location as:

[T]he public school district within the state of New York in which the hotel, motel, shelter or other temporary housing arrangement of a homeless child, or the residential program for runaway and homeless youth, is located, which is different from the school district of origin.

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). 

As a preliminary matter, I find that the student fits the definition of “homeless child” under State and federal law.  Petitioner asserts, and respondent does not dispute, that the student does not have a fixed, regular, and adequate nighttime residence and is living outside the district in a shelter designed to provide temporary living accommodations as defined by McKinney-Vento.  However, to the extent that petitioner seeks a determination that the student is eligible to attend the schools of respondent’s district, the appeal must be dismissed.

Respondent contends, and petitioner offers no evidence to rebut, that petitioner was not residing within the district when petitioner enrolled the student in respondent’s schools on June 7, 2016.  Respondent further contends that petitioner was not residing within the district when she first attempted to enroll the student in April 2016, or at any time prior to enrollment.  The record indicates that petitioner stated that she and her children were temporarily residing with a family friend within the district at the time she first filled out the registration questionnaire in April 2016.  After the student was enrolled in the district on June 7, 2016, respondent’s homeless liaison conducted a follow-up conversation with petitioner.  Respondent’s homeless liaison avers that when questioned about her temporary living arrangements within the district, petitioner could not independently recall the names of the family friend with whom she was residing in the district and had to review her registration questionnaire for such information.  The record indicates that the homeless liaison did not find petitioner credible in this respect, and petitioner has not responded to these allegations in a reply.    

Therefore, on this record, petitioner offers only a conclusory assertion that she previously resided temporarily with a friend in the district and has not met her burden of establishing that she resided within respondent’s district at the time of enrollment or at any other time or that the student attended or was ever entitled to attend respondent’s schools.  As such, respondent’s district was neither the district of origin, nor the district of current location, precluding petitioner from designating the district as the district of attendance pursuant to McKinney-Vento.

Finally, while it does not affect the outcome of this appeal, I note that while petitioner began the enrollment process by beginning a registration questionnaire on April 12, 2016, the student’s registration was not considered complete until petitioner returned to the district with the student’s birth certificate on June 7, 2016.  While the circumstances surrounding this delay are unclear, I remind respondent that Commissioner’s regulation §100.2(y) requires that when a parent or person in parental relation to a child requests enrollment in a public school, the child shall be enrolled and shall begin attendance on the next school day, or as soon as practicable (8 NYCRR §100.2[y][3]).  Commissioner’s regulation 100.2(y)(3) further provides that “[a]s soon as practicable but no later than three business days after such initial enrollment, the parent(s), the person(s) in parental relation to the child or the child, as appropriate, shall submit documentation and/or information in support of the child's residency in the district....”

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on behalf of her child at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Effective December 10, 2016, children or youth awaiting a foster care placement will no longer be included in the definition of homeless under the McKinney-Vento Homeless Assistance Act as amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][3][E][i]; 42 U.S.C. §11432[g][4][A]).

 

[2]Effective October 1, 2016, the McKinney-Vento Homeless Assistance Act was amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][3][E][i]; 42 U.S.C. §11432[g][4][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.