Decision No. 17,662
Appeal of M.J.P., on behalf of her daughter G.P., from action of the Board of Education of the East Irondequoit Central School District regarding residency and transportation.
Decision No. 17,662
(June 28, 2019)
Ferrara Fiorenza P.C., attorneys for respondent, Allison L. Marley, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Irondequoit Central School District (“respondent”) that her daughter G.P. (“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.
Although the record in this appeal is sparse, it reflects that, prior to the events described in this appeal, the student attended respondent’s schools. By letter dated June 26, 2018, respondent’s assistant school business administrator (“administrator”) informed petitioner of his determination and the student was “no longer homeless” and that petitioner and the student were neither district residents nor homeless. The administrator further indicated that the student would be excluded from respondent’s schools for 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. Specifically, petitioner asserts that she and the student share a “house” with her parents and the student’s sister. Petitioner maintains that she is staying with her parents and that “due to ... economic loss and hardship I have not been able to find adequate housing.” Petitioner seeks a determination that the student is homeless within the meaning of McKinney-Vento and, thus, entitled to attend respondent’s schools tuition-free.
Respondent did not submit a timely answer in this appeal, but requests permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations. A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).
Respondent’s counsel explains that respondent served the answer nine days late due to an “administrative mistake” made by an individual who was temporarily serving as the district’s homeless liaison when the homeless liaison was on emergency medical leave. Respondent’s counsel states that the temporary liaison “mistakenly did not appropriately forward the Petition upon receipt to Respondent’s counsel or the Superintendent of Schools.” Respondent further contends that the late answer should be accepted because the student remained enrolled in its schools pursuant to the automatic stay provisions of McKinney-Vento and State law and, thus, suffered no prejudice as a result of the delay (see 42 USC §11432[g][E]; Education Law §3209[c]. While I am sympathetic to the fact that the homeless liaison was on medical leave, I decline to deem respondent’s “mistake” a valid excuse for the late answer (see Appeal of Brarens, et al., 51 Ed Dept Rep, Decision No. 16,317). While I recognize that where, as here, a dispute arises surrounding the student’s McKinney-Vento eligibility, the student is entitled to immediate enrollment in respondent’s district pending final resolution of the dispute, including all available appeals, I find that respondent has not established a sufficient excuse for its late answer on this record. Accordingly, I find no basis to accept the late answer and the factual allegations set forth in the petition are deemed true (8 NYCRR §275.11; see Appeal of Pierre, 47 Ed Dept Rep 513, Decision No. 15,768; Appeal of Raines, 45 id. 21, Decision No. 15,246). Consequently, I have not considered those portions of respondent’s memorandum of law which cite or rely upon respondent’s answer or supporting documents.
Nevertheless, the appeal must be dismissed on the merits. Education Law §3209(1)(a) defines “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals; or
- 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;
- an unaccompanied youth ...; or
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- 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 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).
Here, petitioner has failed to meet her burden to establish that the student is homeless under State or federal law. In the petition, petitioner merely indicates that she “is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.” She states that she and the student share a “house” with her parents and the student’s sister. Other than these conclusory statements, petitioner has failed to provide any evidence concerning the adequacy of the residence. Specifically, petitioner does not provide any details about the adequacy of the living conditions, such as, for example, the number of bedrooms, and whether or not the student has her own bed in the home (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146). The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).
Moreover, petitioner asserts that she is experiencing financial problems and is living on social security disability. While it is unfortunate that petitioner’s financial situation is unstable and that may impact her ability to pay rent, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808).
Additionally, there is no evidence that the residence is temporary or transitional. Petitioner asserts that the student began residing at this residence at some point during the 2016-2017 school year and there is no evidence that petitioner or 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 No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).
Therefore, based upon 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 accommodations set forth in Education Law §3209(1)(a). Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.
Although the appeal must be dismissed for the reasons described above, I note that petitioner has 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
 Pursuant to my discretion under §276.5 of the Commissioner’s regulations, I have accepted respondent’s June 26, 2018 exclusion letter which was attached as an exhibit to respondent’s answer even though, as explained herein, I have not accepted the remaining portions of the answer. In this respect, I note that the form petition instructs individuals completing the form to “[a]ttach copy of denial if available.”
 Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.