Appeal of L.T., on behalf of her son J.T., from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and transportation.

Decision No. 17,555

(December 20, 2018)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her son (“the student”), is not homeless within the meaning of the McKinney-Vento Homeless Assistance 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 dismissed.

On or about January 3, 2012, the student was enrolled in respondent’s schools based on petitioner’s claim that she and the student were district residents and an in-district address she provided.  The record reflects that sometime in December 2016 or early January 2017, petitioner and the student lost their housing in the district and moved to a home located outside respondent’s district occupied by petitioner’s uncle, aunt and nephew (“out-of-district residence”).

On or about May 23, 2017, petitioner met with respondent’s homeless liaison (“liaison”) and requested that the student be permitted to continue to attend respondent’s schools and receive transportation pursuant to McKinney-Vento.  The record indicates that during this meeting, petitioner made certain representations regarding her former and current living arrangements.  Petitioner indicated, among other things, that she was forced to vacate her in-district home; that the out-of-district residence was a single-family residential home owned and occupied by her uncle and aunt, along with their son; and that she was searching for a new residence within respondent’s district that was both affordable and suitable for her needs.  Based upon the information provided, the student was enrolled pursuant to McKinney-Vento and permitted to attend respondent’s schools for the remainder of the 2016-2017 school year, as well as the 2017-2018 school year.  The record further indicates that, at the conclusion of the May 23, 2017 meeting, the liaison advised petitioner that her living arrangement appeared to be fixed, regular and adequate and that it  would be reassessed in June 2018; if it continued to be fixed, regular and adequate through June 2018, a determination would be made to exclude the student from respondent’s schools as neither a homeless nor resident student.

The record indicates that, as of June 2018, petitioner had failed to update the liaison as to her living arrangement.  After further investigation, the district confirmed that petitioner’s living arrangement was a large private home with heat, a bathroom, electricity, running water and no conditions that would render it uninhabitable.

By letter dated June 20, 2018, respondent’s assistant superintendent for finance and facilities (“assistant superintendent”) informed petitioner of her determination that the out-of-district residence was permanent, fixed, regular and adequate, and that the student would be excluded from respondent’s schools effective July 1, 2018.  The letter advised petitioner that, if she failed to provide additional documentation or information prior to June 28, 2018, the determination to exclude the student from respondent’s schools would become final.  The letter also advised petitioner of her right to contact the assistant superintendent or the liaison for additional assistance and to appeal the assistant superintendent’s determination pursuant to Education Law §310.

On or about July 3, 2018, petitioner contacted the liaison and requested a meeting to discuss the determination that her son was no longer eligible to attend school in respondent’s district.  By letter dated July 3, 2018, the liaison confirmed that a meeting regarding the matter was scheduled for July 11, 2018.  On that date, the assistant superintendent, the district registrar and the liaison met with petitioner who stated that she and the student had continuously resided at the out-of-district residence since January 2017; that she did not want to “punish her son by removing him from” respondent’s schools, and that she had been unable to locate adequate and affordable housing within the district.  According to the superintendent, at this time, petitioner made no claim that the out-of-district residence was overcrowded, inadequate or temporary.  Petitioner provided a July 10, 2018 landlord affidavit in which her uncle stated that he is the owner of the out-of-district residence and that petitioner and the student “have established their permanent residence in [his] home ... as of early 2017.”

At the conclusion of the July 11, 2018 meeting, the assistant superintendent informed petitioner that the June 20, 2018 exclusion letter was her final determination and that the student would not be permitted to attend respondent’s schools in the 2018-2019 school year.  This appeal ensued.

Petitioner claims that she and the student are sharing the housing of other persons due to loss of housing, economic hardship or similar reason and are, therefore, homeless within the meaning of McKinney-Vento.  Petitioner asserts that she and the student share a bedroom with a relative, that the student sleeps in the bedroom on an air bed, and that the room is small and crowded.  Petitioner maintains that “it has been a year since we were displaced” and that she has “not found stable or permanent housing.”  Petitioner contends that her uncle “can put my son and I out” at any time.  Petitioner asserts that her son should not be “chastised from his education due to hardship.”

Respondent maintains that the petition fails to state a claim upon which relief may be granted and that petitioner has failed to meet her burden of proof.  Respondent asserts that petitioner’s claim of homelessness is not credible and that its credibility determination  should not be disturbed.  Respondent maintains that it acted in accordance with the requirements of McKinney-Vento and district policy.

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 ....[1]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has failed to meet her burden of proving that the student is homeless under State or federal law.  According to the record, petitioner and the student have lived in the out-of-district residence since December 2016 or January 2017.  Petitioner states in her petition that the bedroom she and the student share with a relative is crowded and the student sleeps on an air bed.  However, other than petitioner’s assertion that the bedroom is small, she submits no evidence, such as affidavits or photographs to support a conclusion that the living arrangement is inadequate.  Respondent asserts that petitioner’s out-of-district residence is a large private home with a bathroom, heat, electricity, running water and no conditions that would render it uninhabitable.  It appears that petitioner and the student have access to the entire house and, as noted, are sleeping in a bedroom, albeit allegedly small.  Petitioner did not submit a reply to rebut respondent’s assertion or explain how the living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,744).  Without proof, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability; 53 id. Decision No. 16,621).

Moreover, petitioner has not established that the current residence is temporary or transitional.  Petitioner submits an unsworn letter from her uncle indicating that his home is clean but “not a long term residency for them.”  Petitioner asserts that the current living arrangement is temporary because she and the student can be put out at any time, but provides no evidence to support such claim.  Indeed, the July 10, 2018 landlord affidavit sworn to by petitioner’s uncle states that petitioner and her son “have established their permanent residence in my home.”  The record reflects that petitioner and the student have been residing in the out-of-district residence since December 2016 or January 2017, and there is no evidence other than petitioner’s conclusory assertion, that petitioner and the student need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id. Decision 16,404; Appeals of L.B., 50 id. Decision No. 16,129).

Moreover, while the record contains evidence that petitioner may be having financial problems, such evidence by itself does not establish that she is homeless under State or federal law.  Although it is unfortunate that petitioner’s financial situation may impact her ability to pay rent or locate desired housing within respondent’s district, this does not constitute homelessness.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221; see Appeal of E.B., 47 id. 94, Decision No. 15,638; Appeal of S.D., 46 id. 116, Decision No. 15,459).

Based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) and §100.2(x) of the Commissioner’s regulations.  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

In light of this disposition, I need not address the parties’ remaining contentions.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE