Decision No. 17,828
Appeal of J.C., on behalf of R.C. and O.C., from action of the Board of Education of the Brookhaven-Comsewogue Union Free School District regarding residency and transportation.
Decision No. 17,828
(April 1, 2020)
Glenn F. Campbell, LLC, attorneys for petitioner, Glenn F Campbell, Esq., of counsel
Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel
Tahoe., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Brookhaven-Comsewogue Union Free School District (“respondent”) that petitioner’s children, R.C. and O.C. (“the students”), are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “Mckinney-Vento”) and, therefore, are not entitled to attend the district’s schools or to receive transportation. The appeal must be dismissed.
The record indicates that, prior to the events leading to this appeal, petitioner and the students resided in respondent’s district. At some point in 2017, petitioner lost her in-district housing and the students were designated as homeless pursuant to McKinney-Vento. The students continued to attend school in respondent’s district as their district of origin. The record also reflects that R.C. received accommodations from the district under section 504 of the Rehabilitation Act of 1973 (“Section 504”).
Petitioner and the students resided at various addresses throughout 2017 and 2018, during which the students remained enrolled in respondent’s school as homeless students. In May 2018, petitioner indicated to respondent that she and the students had found “temporary” housing with a friend outside of the district (the “out-of-district residence”).
Respondent conducted surveillance at the out-of-district residence at various times of day on three consecutive days in April 2019 and three consecutive days in May 2019. On each day of surveillance, an investigator observed petitioner or her car at the out-of-district residence. The investigator additionally observed at least one of the students with petitioner at the out-of-district residence on four of the six days of surveillance.
By letter dated July 3, 2019, respondent’s residency officer informed petitioner that, based on the surveillance evidence, the district determined that the students had established a permanent residence at the out-of-district residence and were no longer homeless. The letter noted that, although petitioner asserted that she and the students did not spend the weekends at the out-of-district residence and were not consistently there, this contention was inconsistent with the surveillance evidence as well as information petitioner had previously provided. The letter also noted that the residency officer had attempted to meet with petitioner to discuss the surveillance but petitioner “refused to meet.” The letter indicated that the students would be excluded from the district’s schools effective June 30, 2019. This appeal ensued.
Petitioner asserts that she and the students are homeless and are temporarily residing at the out-of-district-residence. Petitioner requests a determination that the students are homeless and, thus, entitled to attend respondent’s district without payment of tuition and to receive transportation. Petitioner also requests that R.C.’s Section 504 plan dated April 2019 “be updated to reflect all of the ... accommodations that she will require for the 2019 school year.”
Respondent argues that the appeal must be dismissed because petitioner has failed to demonstrate a clear legal right to the relief requested.
I must first address two procedural matters. Following service of the petition, petitioner submitted additional exhibits and supporting papers to my Office of Counsel. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Here, petitioner did not obtain prior approval to submit the additional exhibits and supporting papers, nor did she submit an affidavit of service with such submissions. Therefore, I decline to accept such submissions.
Second, petitioner submitted a late memorandum of law. Pursuant to section 276.4 of the Commissioner’s regulations, a petitioner is required to serve a memorandum of law within 20 days after service of the answer or 10 days after service of the reply, whichever is later. Respondent’s answer was served upon petitioner by mail on July 31, 2019 and petitioner did not submit a reply. Thus, the time by which petitioner’s memorandum of law was due to be served was based upon service of respondent’s answer. Where the answer is served by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period (8 NYCRR §276.4[a]). When the 20-day period ends on a Saturday or Sunday, service may be made the following Monday (8 NYCRR §275.8[b]). Petitioner’s affidavit of service indicates that the memorandum of law was served by mail on August 27, 2019, one day late. Thus, it was untimely. Petitioner offers no good cause for the delay and has not demonstrated the necessity of her memorandum to a determination of this appeal. Accordingly, I have not considered it.
Turning to 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).
On this record, petitioner failed to meet her burden of proving that the students fit the definition of homeless children under either State or federal law. While petitioner alleges that she is homeless because she and the students are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason, petitioner offers no evidence to support this claim other than conclusory assertions that she and the students are temporarily residing at the out-of-district residence. Without proof, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,721; Appeal of P.B., 55 id., Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621). Furthermore, while petitioner checked a box on her form petition indicating that she and the student are “sharing the housing of other persons,” the mere assertion that a student is sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of C.M., 58 Ed Dept Rep, Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146).
Although petitioner identifies several addresses where she and the students “have resided together,” she does not indicate when, or for how long, she and the students resided at such locations. Additionally, while unclear from the record, to the extent petitioner suggests that she currently resides at one or more locations besides the out-of-district address, she has not met her burden of proof in this regard. Respondent’s surveillance evidence consistently portrayed petitioner and/or the students at the out-of-district residence. Petitioner admits that she and the students reside at the out-of-district residence at least some of the time, and she has not explained why they cannot reside there on a regular basis. Thus, petitioner has failed to demonstrate that she or the students need to vacate the out-of-district residence or that there is a fixed time limit as to how long they may remain (see Appeal 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 16,404).
Petitioner further asserts that she is experiencing economic hardship because her “only income is Social Security Disability and [she] cannot afford housing.” The Commissioner has held, however, that 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).
Finally, with respect to petitioner’s request that R.C.’s Section 504 plan be updated, this claim must be dismissed for lack of jurisdiction. Enforcement of Section 504 is within the exclusive jurisdiction of the federal courts, the United States Department of Justice, and the United States Department of Education, and it may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).
Based upon the record before me, petitioner has failed to demonstrate that she and the students currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209. Accordingly, I cannot find that respondent’s determination that the students are not homeless was arbitrary or capricious.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED
END OF FILE
 The July 3, 2019 letter makes reference to an initial determination letter dated April 2, 2019 from respondent notifying petitioner that she and the students “were no longer homeless,” however, the record does not contain a copy of such letter.
 In any event, petitioner’s principal contention therein is that respondent’s surveillance evidence was inaccurate because the investigator purported to observe her vehicle on dates when it was being repaired at a car dealership. However, the only proof petitioner submits in support of this contention is a letter from a car dealership indicating that petitioner’s car “was dropped off for repairs on the morning of June 10th” and “ready after repairs on June 18th for pick up.” Respondent conducted surveillance, as indicated above, in April and May 2019, prior to the repair period identified in the letter.
 Even if I did accept this memorandum of law, it contains new evidence and assertions. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).
 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.