Decision No. 17,665
Appeal of F.R., on behalf of his daughter D.R., from action of the Board of Education of the City School District of the City of Long Beach regarding residency and transportation.
Decision No. 17,665
(June 28, 2019)
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 City School District of the City of Long Beach (“respondent”) that his daughter (“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.
The student was initially enrolled in respondent’s schools on August 30, 2017 based on petitioner’s claim that he and the student resided at an address in respondent’s district (the “in-district address”). The record reflects that petitioner’s mother and sister have, at all times relevant to this appeal, resided at the in-district address.
In November 2017, respondent’s executive director of pupil personnel services (“PPS director”) received an unsolicited report that the student did not reside at the in-district address. In addition, in February 2018, the PPS director received confirmation from a neighboring district that the student’s two younger siblings attended a nonpublic school located within that district. The PPS director also received an email from an employee of the neighboring district dated February 16, 2018 in which the employee indicated that, according to that district’s records, the student’s younger siblings resided at an address in the neighboring district (the “out-of-district address”). Based on these reports, respondent commenced a residency investigation.
An investigator conducted surveillance on 10 occasions at the in-district and out-of-district addresses from Tuesday, March 20, 2018, through and including Monday, April 16, 2018. The investigator did not observe petitioner or the student at the in-district address on any of these dates. However, the investigator observed: (1) the student leaving for school from the out-of-district address on four occasions; (2) petitioner and the student’s two siblings at the out-of-district address on four occasions; and (3) the student’s mother at the out-of-district address on three occasions.
In a letter dated April 17, 2018, the PPS director notified petitioner of her “preliminary determination” that the student was not entitled to attend respondent’s schools as a district resident. The PPS director gave petitioner until April 18, 2018 to submit additional information supporting his claim of residency within the district. The PPS director indicated that absent any additional information, the student would be excluded from respondent’s schools effective April 18, 2018.
On April 19, 2018, a residency meeting was attended by petitioner, the district registrar, and the PPS director. At this meeting, petitioner submitted documentary evidence in support of his claim of his residency within respondent’s district. According to the PPS director, while petitioner was provided “multiple opportunities to explain why the student had been observed on so many occasions leaving from the [out-of-district] address and being driven to school,” petitioner did not offer any explanation concerning respondent’s surveillance evidence.
In a letter dated April 23, 2018, the PPS director notified petitioner of her determination that the student resided at the out-of-district address and, therefore, was not a district resident. The PPS director indicated that the student would be excluded from respondent’s schools effective April 27, 2018.
By letter dated April 24, 2018, petitioner appealed the PPS director’s determination to respondent. Respondent upheld the PPS director’s determination at a board meeting held on April 26, 2018. In a letter dated April 27, 2018, the district clerk informed petitioner of respondent’s determination and his right to appeal such determination to the Commissioner of Education pursuant to §310 of the Education Law.
On or about April 30, 2018, petitioner represented to the district that the student was homeless. Based upon this representation, respondent readmitted the student to its schools.
Following a conversation with the student’s mother on May 2, 2018, respondent’s homeless liaison determined that the student resided at the out-of-district address and that the out-of-district address was a fixed, regular and adequate nighttime location.
In a letter dated May 3, 2018, the PPS director notified petitioner of her determination that the student was not homeless because the out-of-district address was a fixed, regular and adequate nighttime location. The PPS director indicated that the student would be excluded from respondent’s schools effective June 1, 2018. This appeal ensued.
Petitioner contends that he and the student are “doubled-up” and sharing the housing of another at the in-district address. Petitioner further contends that the student spends two to three school days per week at the home of the student’s aunt and uncle, which is located within respondent’s district (the “second in-district address”). Petitioner asserts that the student’s mother and three of the student’s siblings reside at the out-of-district address, but not the student who is the subject of this appeal. Petitioner seeks a determination that the student “is a homeless child entitled to attend [respondent’s district] without the payment of tuition.”
Respondent contends that the petition fails to establish facts or state a claim upon which relief can be granted. Respondent maintains that it has acted in a lawful manner, and in furtherance of sound educational policy, in enforcing the provisions of McKinney-Vento. Respondent further contends that district officials found petitioner not to be credible, and that such credibility determinations are entitled to deference.
I must first address two procedural matters. Petitioner submitted a reply in this 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.
Respondent seeks permission to submit a sur-reply affirmation in response to petitioner’s reply. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). As noted above, I have not considered any portion of petitioner’s reply that is not responsive to new material or affirmative defenses in the answer. Therefore, it is unnecessary to accept respondent’s sur-reply.
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 his burden of proving that the student is homeless. Petitioner maintains that he is homeless because, as of September 2017, it was “too crowded” at petitioner’s parents’ in-district address with petitioner, his spouse, their four children, petitioner’s mother, petitioner’s sister, and the student’s cousin all residing therein. Petitioner asserts that this overcrowding necessitated a move by his spouse and three of his children to the out-of-district address in September 2017. Petitioner maintains that he and the student remain “doubled-up” at the in-district address.
Other than his conclusory assertion that the in-district address was “too crowded” as of September 2017, however, petitioner submits no information as to the characteristics of the house to support such assertion. Without any specific information about the adequacy of petitioner and the student’s living arrangements, I cannot find on this record that the in-district address is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165). Moreover, I note that petitioner characterized the home as “too crowded” when nine adults and children lived in the home in September 2017 and that, according to the record, only five adults and children, at most, have resided at the in-district address after that date.
Petitioner has also failed to allege or prove that the in-district address is temporary or transitional; there is no evidence in the record that he and the student need to vacate the in-district address or that there is a fixed time limit as to how long they may remain (see Appeals of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).
Therefore, while I am sympathetic to petitioner’s circumstances, based on the record before me, petitioner has failed to demonstrate that he and the student lack a fixed, regular and adequate nighttime residence or that their residence is temporary or transitional within the meaning of McKinney-Vento. Accordingly, I cannot find that respondent’s determination that the student is not homeless and, thus, not entitled to attend district schools or receive transportation under McKinney-Vento, is arbitrary or capricious.
Although petitioner’s appeal of respondent’s determination that the student is not homeless must be dismissed, I note that, in the petition, petitioner appears to raise new allegations with respect to the student’s residency, although he seeks no relief in this regard. To the extent petitioner or the student’s living circumstances have changed, petitioner retains the right to reapply for admission on the student’s behalf and to submit any documentary evidence for respondent’s consideration pursuant to 8 NYCRR §100.2(y). Similarly, with respect to petitioner’s claim of homelessness, petitioner retains the right to reapply to the district for the student’s admission as a homeless student at any time and to present any new information for respondent’s consideration.
In light of this determination, I need not consider the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The record reflects that the out-of-district address is owned by the parents of the student’s mother.
 Petitioner also seeks “[i]nterim relief” permitting the student to attend respondent’s district. I note that where, as here, a dispute arises surrounding a student’s eligibility to attend a school district as a homeless student, the student is entitled to immediate enrollment in a school district pending final resolution of the dispute, including all available appeals (see 42 USC §11432[g][E]; Education Law §3209[c]). Thus, the student was entitled to continued enrollment in respondent’s schools pending final resolution of the dispute, including all available appeals, and no application for interim relief in this appeal was required.
 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.
 For relief, petitioner only seeks a determination that the student is “a homeless child entitled to attend Long Beach Middle School in the Long Beach School District without the payment of tuition.”