Decision No. 17,674
Appeal of D.H., on behalf of her daughter D.A.-H., from action of the Board of Education of the Freeport Union Free School District regarding residency and transportation.
Appeal of D.H., on behalf of her children A.H. and D.A.-H., from action of the Board of Education of the Freeport Union Free School District regarding residency and transportation.
Decision No. 17,674
(July 1, 2019)
Ingerman Smith, LLP, attorneys for respondent, Diana M. Cannino, Esq., of counsel
ELIA, Commissioner.--In two separate appeals, petitioner challenges determinations of the Board of Education of the Freeport Union Free School District (“respondent”) that her 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 the district’s schools tuition-free. Because these appeals present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.
Petitioner enrolled A.H. in respondent’s district on December 20, 2013, indicating that her family resided at an address in Freeport, New York (the “in-district address”).
On or about March 24, 2015, respondent received returned mail addressed to petitioner at the in-district address which bore the notations “return to sender,” “undeliverable as addressed” and “unable to forward.” By letter dated May 15, 2015, petitioner was asked to submit documentation by May 22, 2015 confirming that she lived at a new address. The letter also requested that petitioner submit proof that A.H. resided within the district. Petitioner did not submit the requested information. By “final notice” dated May 22, 2015, petitioner was asked to submit documentation by June 2, 2015 confirming her new address.
By letter dated May 27, 2015, petitioner informed respondent that she had moved to an address in West Hempstead, New York (the “out-of-district address”). She requested that A.H. be allowed to attend the district’s schools for the remainder of the 2014-2015 school year because it was “to [sic] late for him to enroll in school.” Petitioner’s request was granted, and A.H. was allowed to remain enrolled in respondent’s district for the remainder of the 2014-2015 school year.
According to respondent, “prior to the start of the 2015-2016 school year,” it began the process to exclude A.H. from its schools. By letter dated August 7, 2015, respondent’s executive director for operations informed petitioner of his determination that A.H. did not reside within respondent’s district and, therefore, would be excluded from its schools effective August 21, 2015. The letter invited petitioner to present evidence of A.H.’s residency within the district. This letter was sent to petitioner at the in-district address and returned to respondent with a handwritten note which indicated: “Doesn’t Live Here For The past 8 months.”
On or about September 3, 2015, petitioner enrolled A.H. in the Hempstead Union Free School District. On or about October 26, 2015, petitioner attempted to re-register A.H. in respondent’s district as a homeless student, claiming that she was doubled-up with a relative in Hempstead. Accordingly, A.H. was thereafter reenrolled in respondent’s schools as a homeless student.
Petitioner continued to assert that she and A.H. were homeless during the 2016-2017 and 2017-2018 school years. Accordingly, respondent permitted A.H. to continue attending its schools as a homeless student for the 2016-2017 and 2017-2018 school years.
Although petitioner had previously indicated to respondent that she was awaiting housing placement from a county Department of Social Services (“DSS”), on or about June 20, 2018, DSS informed respondent that petitioner had not received placement and that DSS considered petitioner permanently housed at the out-of-district address.
By letter dated June 19, 2018, petitioner was informed that A.H. would not be admitted to respondent’s schools for the 2018-2019 school year because he “[p]ermanently live[d] out of district” and was “not eligible to attend Freeport Public Schools.” Petitioner did not respond to this correspondence.
On or about July 31, 2018, petitioner attempted to enroll D.A.-H. in respondent’s district to attend kindergarten. By letter dated July 31, 2018, petitioner was informed that D.A.-H. would not be admitted to respondent’s schools because she was “[p]ermanently out of District (Hempstead)” and, thus, “not eligible to attend Freeport Public Schools.”
Subsequently, respondent’s assistant superintendent for educational and administrative services (“assistant superintendent”) met with petitioner to discuss the students’ homeless status. The assistant superintendent explains in an affidavit that, at this meeting, petitioner asserted that the in-district address became too small following the birth of D.A.-H., and that the out-of-district residence was temporary. Petitioner indicated that the out-of-district address belonged to D.A.-H.’s paternal great-aunt, to whom she referred as her landlord. Petitioner further indicated that A.H. had his own bedroom at the out-of-district address and that petitioner shared a bedroom with D.A.-H. Petitioner stated that other people lived at the residence but she did not know them. Petitioner also stated that she was out of work and could not afford an apartment. Petitioner asserted that she did not pay rent but helped out with food and other bills. Petitioner indicated that she planned to remain at the out-of-district address until she obtained Section 8 housing and asserted that she was on a waiting list for such housing.
The assistant superintendent further avers that she verbally informed petitioner of her determination that petitioner’s family was permanently housed and, thus, not homeless. The assistant superintendent stated that this determination could be appealed to the Commissioner of Education pursuant to Education Law §310. Petitioner again indicated that her living arrangement was temporary and stated that she would like to appeal the assistant superintendent’s determination. The assistant superintendent avers that she then “began the Homeless Appeal paperwork with” petitioner. These appeals ensued.
Petitioner alleges that she and the students are temporarily residing in the out-of-district address and are currently homeless as defined by McKinney-Vento. Petitioner asserts that she is a single mother who recently lost her job and that on August 2, 2018, she started a new job. Petitioner states that she is having financial difficulties and is on the waiting list for Section 8 housing. Petitioner asserts that she does not pay rent at the out-of-district address and that she and the students occupy two bedrooms therein. Petitioner requests a finding that the students are homeless and, thus, entitled to attend respondent’s district and receive transportation.
Respondent asserts that petitioner has failed to meet her burden of proof to establish that she and the students are homeless pursuant to McKinney-Vento.
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 establish that the students are homeless under State or federal law. The record reflects that petitioner and the students reside at the out-of-district address with D.A.-H.’s paternal great-aunt and have done so since sometime in 2015. Petitioner asserts that she rents two bedrooms on the third level of a house. Petitioner acknowledges that A.H. has his own bedroom and asserts that she and D.A.-H., who according to the record is five years old, “share” the second bedroom. Petitioner has submitted photographs of the two bedrooms which suggest that the rooms are of adequate size and contain at least one bed. The photographs were taken by an individual standing inside of the bedrooms; as a result, only a portion of each room is visible in the photographs and it is impossible to ascertain the total size of the rooms. Accordingly, on this record petitioner has failed to demonstrate that the students lack a fixed, regular and adequate nighttime residence (see Appeals of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).
Moreover, petitioner has not established that her residence is temporary or transitional. The record indicates that, since sometime in 2015, petitioner and the students have been residing with D.A.-H.’s paternal great-aunt outside the district. There is no evidence that they need to vacate this residence or that there is a fixed time limit as to how long they can remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404). Although petitioner claims that she is actively trying to obtain permanent housing within the district and is on a Section 8 waiting list, she provides no evidence of such efforts (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404). The only evidence in the record on this point suggests that the county DSS considered petitioner permanently housed at the out-of-district address as of June 20, 2018. Accordingly, I cannot find that the out-of-district address is temporary or transitional.
Moreover, while the record contains evidence that petitioner may be having financial problems and has sought DSS assistance in securing housing, such evidence by itself does not establish that she is homeless under State or federal law. While it is unfortunate that petitioner’s financial situation is unstable and that may impact her ability to pay rent, economic hardship standing alone does not establish homelessness within the meaning of McKinney-Vento or State law (Appeal of H.H., 57 Ed Dept Rep, Decision No. 17,141; Appeal of T.J.G. and D.G., 54 id., Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388). 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 students 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 students are not homeless and, thus, not entitled to attend the district’s schools or receive transportation under McKinney-Vento, to be arbitrary or capricious.
Finally, I note that, where a district disputes that a student is homeless, as in this case, it must follow the dispute resolution procedures established in Commissioner’s regulations (8 NYCRR §100.2[x][ii]). At the conclusion of this dispute resolution process, if the district determines that a student is not homeless, it must provide a written notice that the student is not entitled to attend its schools and the basis for the determination (8 NYCRR §100.2[x][ii][b]). The notice must state that the determination may be appealed to the Commissioner of Education and must include the form petition for filing such an appeal (8 NYCRR §100.2[x][ii][b]). The notice must also contain the name and contact information for the school district’s homeless liaison, who is required to assist in filing such an appeal, including completing the form petition, and in accepting or arranging for service of the form petition (8 NYCRR §§100.2[x][ii][b], [iii][c],, and ).
Here, the record indicates that respondent provided petitioner with letters dated June 19 and July 31, 2018 informing her that her children had been placed on its “do not admit” list for the following reason: “Permanently live out of District – Not eligible to attend Freeport Public Schools.” The record indicates that respondent’s assistant superintendent subsequently met with petitioner to discuss the determinations and that, during such meeting, she informed petitioner that she could appeal the determinations pursuant to Education Law §310 and assisted petitioner in filling out the form petitions. However, the record contains no indication that petitioner was so informed in writing, together with a copy of the form petition for filing such an appeal and the name and contact information for the school district’s homeless liaison. I remind respondent of its obligation to comply with such requirements, which are designed to protect the educational welfare of this vulnerable population.
Although the appeals must be dismissed, I note that petitioner retains the right to reapply for admission on behalf of the students at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEALS ARE DISMISSED.
END OF FILE
 In the first appeal, petitioner only appeals the exclusion of D.A.-H. In the second appeal, petitioner appeals the exclusion of both D.A.-H. and A.H. I have considered the allegations in both petitions, which are different, but not inconsistent, in reaching my determination.
 It appears that the July 31, 2018 letter incorrectly referred to A.H. instead of D.A.-H.
 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.