Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and transportation.

Decision No. 17,867

(July 1, 2020)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her son (“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.

On or about August 31, 2015, petitioner enrolled both the student and her daughter, who is not subject to this appeal, in respondent’s schools as resident students.  The record reflects that, sometime in August 2016, petitioner and her children lost their housing in the district.  Petitioner thereafter informed respondent’s homeless liaison (“liaison”) that she and her children had moved to a residence located outside respondent’s district, where they were “doubled up with a friend.”  Based on these representations, respondent permitted the student and petitioner’s daughter[1] to attend respondent’s schools and receive transportation for the 2016-2017 school year pursuant to McKinney-Vento.  The record reflects that petitioner and her children subsequently relocated to other shelters and residences outside the district, during which the student and petitioner’s daughter continued to attend respondent’s schools as homeless students.

On or about September 4, 2018, petitioner notified the liaison that, as of August 31, 2018, she and her children had temporarily moved to another residence outside the district in Amityville, New York (the “Amityville residence”) and that they were living “doubled-up with a friend.”  According to the liaison, however, the student had previously informed another district employee that the Amityville residence was the home of petitioner’s boyfriend.  The liaison investigated the Amityville residence and found that it is part of a private community of condominiums with numerous amenities including “gourmet kitchens, access to a community clubhouse, and professionally landscaped grounds.”  Although the liaison suspected that petitioner and her children were no longer homeless, the district nevertheless permitted the student and petitioner’s daughter to remain enrolled in its schools for the 2018-2019 school year.

In May 2019, the liaison inquired as to petitioner’s residency status and plans for the 2019-2020 school year.  According to the liaison, petitioner reported that she and her children continued to reside at the Amityville residence, that they were “enjoying” it, and that they loved its “views of the water.”  By letter dated June 10, 2019, respondent’s assistant superintendent for finances and facilities (“assistant superintendent”) notified petitioner that she and her children were no longer homeless within the meaning of McKinney-Vento because the Amityville residence constituted a fixed, regular and adequate nighttime residence.  The assistant superintendent thus informed petitioner that the student would be excluded from respondent’s schools effective July 1, 2019.[2]  The assistant superintendent advised petitioner that, if she failed to provide additional documentation or information prior to June 19, 2019, the June 10 letter would constitute the district’s final determination.  Petitioner did not submit any additional documentation.  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 her children are “staying in a room, doubled-up at a friends [sic] home.”

Respondent contends that petitioner has failed to meet her burden of proving that the student lacks a fixed, regular, and adequate nighttime residence.  Respondent further asserts that its decision was rational and not arbitrary or capricious.  Respondent maintains that it acted in accordance with the requirements of McKinney-Vento and district policy.

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 ....[3]

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).

Petitioner has failed to meet her burden of proving that the student is homeless under State or federal law.  According to the record, petitioner, her daughter, and the student have lived at the Amityville residence since August 31, 2018.  Petitioner submits no evidence that this residence is not a fixed, regular and adequate nighttime residence.  Other than her conclusory statement in the petition that she is living “doubled-up” with a friend, petitioner fails to explain why this fact alone renders the housing inadequate.  As indicated above, respondent asserts that the Amityville residence is the home of petitioner’s boyfriend and part of a private community of condominiums that provides sufficient living space as well as amenities such as gourmet kitchens, access to a community clubhouse and professionally landscaped grounds.  Petitioner did not submit a reply to rebut respondent’s assertion or explain how her living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774).  Petitioner merely states that she and her children are “staying in a room, doubled-up at a friends [sic] home.”  Without any supporting evidence, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability; 53 id. Decision No. 16,621).

The information submitted by petitioner on appeal does not address whether the Amityville residence is adequate or temporary.  Although petitioner submits documentation indicating that she has received public assistance and supplemental nutrition assistance (“SNAP”) from a county department of social services, and was due to recertify for such assistance as of June 25, 2019, I do not find that this information is relevant to the adequacy of the Amityville residence.  To the extent this documentation suggests that petitioner is experiencing economic hardship, the Commissioner has long held 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).[4]

Moreover, petitioner has not established that her residence is temporary or transitional.  Petitioner and her children have lived at the Amityville residence since August 31, 2018, and petitioner neither asserts nor submits any evidence establishing 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).

Based on the record before me, petitioner has failed to demonstrate that she 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 respondent’s determination that the student is not homeless and, thus, not entitled to attend district schools or receive transportation under McKinney-Vento to be arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on behalf of the student at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE