Appeal of E.F. and S.F., on behalf of their daughter S.F., from action of the Board of Education of the South Huntington Union Free School District regarding residency and transportation.

Decision No. 17,865

(July 1, 2020)

Ingerman Smith, L.L.P., attorneys for respondent, David F. Kwee, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioners appeal the decision of the Board of Education of the South Huntington Union Free School District (“respondent”) that their daughter (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools tuition-free or receive transportation.  The appeal must be dismissed.

Prior to the events described in this appeal, the student was enrolled in respondent’s schools based upon petitioners’ residence in the district.  On October 8, 2018, petitioner E.F. completed a “residency questionnaire” on behalf of the student, in which she indicated that the family was living “[w]ith another family or other person because of loss of housing or as a result of economic hardship (sometimes referred to as ‘doubled-up’)” at an address in Ronkonkoma, New York (the “out-of-district residence”).  Based on the residency questionnaire, the district permitted the student to continue attending its schools as a homeless student.

On March 26, 2019, petitioner E.F. submitted a “housing questionnaire” in which she again listed the out-of-district residence as the student’s current address but indicated that the student was residing in “permanent housing.”  In a letter dated April 4, 2019, respondent’s homeless liaison sought additional information concerning the student’s housing situation.  According to an affidavit from respondent’s assistant superintendent for student services (“assistant superintendent”), petitioners did not respond to the April 4, 2019 letter but advised the district, in subsequent telephone conversations, that the out-of-district residence was “temporary.”

In a letter dated September 23, 2019, the homeless liaison “follow[ed] up” on the April 4, 2019 letter and asked petitioners to re-verify their living situation and the student’s eligibility under McKinney-Vento by submitting the enclosed housing questionnaire and housing clarification forms.  Petitioners did not return these forms to the district.

In a letter dated October 11, 2019, the homeless liaison advised petitioners that, unless they provided information to support the student’s alleged homeless status, the student would be excluded from the district’s schools effective November 11, 2019.  There is no indication in the record that petitioners responded to this letter.

By letter dated November 12, 2019, the assistant superintendent advised petitioners that the student was not a homeless student pursuant to McKinney-Vento because the out-of-district residence was fixed, regular and adequate.  This appeal ensued.

Petitioners request a determination that the student is homeless and, thus, entitled to attend respondent’s schools tuition-free and to receive transportation.

Respondent argues that petitioners have failed to state a claim upon which relief may be granted and have failed to present evidence sufficient to support their claim that the student is homeless within the meaning of McKinney-Vento.  Respondent additionally argues that its decision to exclude the student from its schools was not arbitrary or capricious. 

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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

The appeal must be dismissed on the ground that petitioners have failed to carry their burden of proof.  Petitioners have provided no description of the adequacy or nature of the student’s living arrangements beyond indicating that the student continues to reside at the out-of-district residence.  Indeed, although petitioners completed the State Education Department’s form notice of petition for an appeal involving a homeless child and youth, they failed to complete the portions of the form that instructed them to describe the student’s living situation and the circumstances of how the student became homeless.  Additionally, petitioners responded to the following question in the petition:  “Are the child’s/youth’s parents/legal guardians homeless” by answering “no.”  Ultimately, petitioners submit no evidence in connection with their homeless status with this appeal.[2]  Moreover, respondent conducted a home visit of the out-of-district address and concluded that it was adequate.  Therefore, petitioners have not met their burden of proving that their current residence is inadequate (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeal of A.M., 57 id., Decision No. 17,146; Appeal of D.W., 56 id., Decision No. 16,924).

Likewise, petitioners have not established that their current residence is temporary or transitional.  The record reflects that petitioners and the student have been living at the out-of-district residence, apparently without interruption, since at least October 2018.  Moreover, petitioners have neither claimed nor demonstrated that they must vacate the current residence or that there is a limit as to how long they may remain there (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeals of V.C.B., 56 id., Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987).  Indeed, in the March 26, 2019 housing questionnaire, petitioner E.F. indicated that the student was currently living “[i]n permanent housing” at the out-of-district residence.  Therefore, I cannot find that the out-of-district residence is temporary or transitional.

Although the appeal must be dismissed for the reasons described above, I note that petitioners retain the right to reapply for admission to the district on the student’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE