Appeal of B.N. and J.N., on behalf of their children B.N., T.N., L.N., and E.N., from action of the Board of Education of the Sauquoit Valley Central School District regarding residency.

Decision No. 17,448

(July 16, 2018)

Ferrara, Fiorenza, Larrison, Barrett & Rietz, P.C., attorneys for respondent, Catherine E. M. Muskin, Esq., of counsel

ELIA, Commmissioner.--Petitioners appeal the determination of the Board of Education of the Sauquoit Valley Central School District (“respondent”) that their children (the “students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend its schools or receive transportation.  The appeal must be dismissed. 

Prior to the events described in this appeal, the students were enrolled in respondent’s district.  According to an affidavit from respondent’s superintendent of schools (“superintendent”) submitted with this appeal, he met with petitioner J.N. on July 20, 2017, to “discuss the status of [the children] with respect to their eligibility to enroll in the schools within [the] [s]chool [d]istrict.”[1]  The affidavit indicates that petitioner J.E. stated that she, petitioner B.N. and the students were living with petitioner B.N.’s mother at an address located outside the geographical confines of respondent’s school district (“out-of-district address”). 

By letter dated July 27, 2017, the superintendent notified petitioners of his determination that students B.N., E.N. and L.N. were not entitled to attend the schools of the district because “they are not a resident of the [d]istrict and are not homeless.” The letter further stated that B.N., E.N. and L.N. would be excluded from the schools of respondent’s district “effective as of August 27, 2017.”

By letter dated August 4, 2017, the superintendent notified petitioners of his decision that student T.N. was not entitled to attend the schools of the district because T.N. “is not a resident of the [d]istrict and is not homeless.”  The letter further advised that T.N. would be excluded from the schools of respondent’s district “effective as of September 4, 2017.”  This appeal ensued. 

Petitioners contend that the students are homeless and, therefore, should be allowed to continue attending school in respondent’s district.  Petitioners assert that they and the students are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”

Respondent argues that petitioners and the students “are not, and never have been, homeless within the meaning of the [law].”  Respondent asserts that its determination “was made in good faith based on a diligent investigation” and that it complied with all applicable laws, rules and regulations.  Respondent further argues that the petition, with respect to three of the students, must be dismissed as untimely.

I must first address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Next, respondent argues that the appeal, as it relates to students B.N., E.N. and L.N., must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).  

The final determination with respect to B.N., E.N., and L.N., was issued by letter dated July 27, 2017.  Because the record does not indicate when petitioners received the letter, petitioners therefore had until September 1, 2017 to commence this appeal.  In an affidavit submitted with this appeal, respondent’s homeless liaison indicates that he accepted service of the petition on  August 31, 2017.  Therefore, petitioner’s claims, with respect to B.N., E.N., and L.N., are timely.

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:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
5. an unaccompanied youth ...; or
2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings....[2]

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.

The students do not fit the definition of a homeless child under either State or federal law.  While petitioners allege that they and the students lack a fixed, regular, and adequate night time residence and are sharing the housing of other persons due to loss of housing, economic hardship or other similar reasons, they offer no evidence to support this claim other than their conclusory assertions. Petitioners assert that four adults and four children live in a three-bedroom house and that the six members of their immediate family share one bed in one of the bedrooms.  While this could support a finding that the house is inadequate due to overcrowding, petitioners have not provided sufficient evidence to support such a claim (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeal of D.W., 55 id., Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619).  Moreover, the homeless liaison asserts that on August 22, 2017, he met with petitioners and they indicated that they were living at the out-of-district address “in order to save money to purchase a home.”  Petitioners do not deny or refute this statement in their reply. 

Petitioners have also failed to establish that their current residence is temporary or transitional.  The record indicates that petitioners and their children have been residing in the home of a family member outside the district’s geographic boundaries since the 2016-2017 school year.  The record contains an unsworn statement by the family member indicating that petitioners and the students are staying with her “until they get situated in a home.”  This does not establish that petitioners and their children need to vacate their current residence or that there is a fixed time limit as to how long they may remain (Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeal of A.N., 55 id., Decision No. 16,992).

Accordingly, I find that respondent’s determination that petitioners’ children are not homeless was not arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioners retain the right to reapply for admission to respondent’s schools on their children’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration. 

THE APPEAL IS DISMISSED.

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