Decision No. 17,873
Appeal of J.D., on behalf of his children J.D. and J.D., from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and transportation.
Decision No. 17,873
(July 8, 2020)
Guercio & Guercio LLP, attorneys for respondent, Torrey A. Chin, Esq., of counsel
Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) that his daughters (the “students”) are not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431, et seq., “McKinney-Vento”). Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.
Prior to the events described in this appeal, petitioner and his family resided within respondent’s district and the students attended respondent’s schools. Petitioner alleges that, on February 25, 2017, petitioner and his family were evicted from his home in respondent’s district. On or around March 10, 2017, the students’ mother informed the district that she and her family had moved in with their “grandparents and siblings” at a residence in Shirley, New York, which is located outside the geographical boundaries of respondent’s district (the “out-of-district residence”). Respondent permitted the students to remain enrolled in its schools for the remainder of the 2016-2017 school year as well as the 2017-2018 and 2018-2019 school years.
On May 1, 2019, respondent sent a letter with an attached housing questionnaire to petitioner. The letter indicated that petitioner’s responses would “help [the district] determine if [the students were] still eligible for services” including enrollment as homeless students and transportation. Petitioner did not respond to this questionnaire. Respondent sent another letter dated June 5, 2019, which was also unanswered. Respondent sent a third letter on July 9, 2019, attaching another copy of the housing questionnaire. This, too, went unanswered.
In a letter dated July 26, 2019, respondent’s interim superintendent informed petitioner of her determination that, “because you and your [children] are neither permanent residents of the district nor homeless ... your [children are] not entitled to enrollment” in the district’s schools. The interim superintendent indicated that her determination was based on, among other things, her finding that the students had resided at the out-of-district residence “since at least March 10, 2017.” This appeal ensued.
Petitioner contends that the students are homeless and lack a fixed, regular and adequate night-time residence because they are sharing the housing of other persons due to loss of housing and economic hardship. Petitioner alleges that the students share housing at the out-of-district residence with their siblings and their grandparents. Petitioner requests a determination that the students are homeless and entitled to remain enrolled in respondent’s schools without payment of tuition and receive transportation.
Respondent contends that petitioner has failed to meet his burden of proving that the out-of-district residence is not fixed, regular or adequate.
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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).
Petitioner has failed to meet his burden of proving that the students are homeless under State or federal law. Although petitioner identifies the occupants of the out-of-district residence, he does not provide any details or evidence about the adequacy of the living conditions at the out-of-district residence (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146). Respondent indicates that the out-of-district residence is a four-bedroom, two-bathroom home with 2,186 square feet. Petitioner did not submit a reply or otherwise respond to this contention. The mere assertion that students are 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).
Additionally, petitioner does not assert, and there is no evidence in the record suggesting, that petitioner or the student need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129). The record reflects that petitioner and the students have resided at the out-of-district residence since March 2017, and there is no evidence that the students’ grandparents have any intention of evicting the students or otherwise prevent them from living at their home (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,484).
Petitioner asserts that he and his family are experiencing economic hardship because he has been unable to find “steady employment” and his spouse passed away in May 2018. In support of petitioner’s allegations of economic hardship, he submits: (1) the death certificate for his spouse and documentation including a notice of a disapproved claim from the Social Security Administration for his late spouse’s benefits dated July 3, 2018 and a discontinuance of medical assistance document from the New York State Department of Health dated July 7, 2018; (2) selected portions of his federal income tax returns for 2017 and 2018; (3) a letter from a law firm dated March 1, 2017 concerning petitioner’s potential filing of a chapter 7 bankruptcy petition; and (4) a certificate dated March 20, 2017 indicating that petitioner completed the credit counseling requirement applicable to most debtors under the U.S. Bankruptcy Code. Although I am sympathetic to petitioner’s personal and financial circumstances, 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).
Therefore, petitioner has failed to meet his burden of proving that the students lack a fixed, regular and adequate night-time residence. Consequently, neither the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children, nor the provisions of Education Law §3209(4) and McKinney-Vento regarding the transportation of homeless children, are applicable in petitioner’s circumstances (Appeal of M.W., 46 Ed Dept Rep 151, Decision No. 15,471). Accordingly, I cannot find respondent’s determination that the students were not homeless to be arbitrary or capricious.
Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for his children’s admission, if circumstances change, and to present any new information for the district’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 It appears from the record that respondent first learned that the students were allegedly homeless when the students’ mother contacted the district on March 10, 2017, and that it thereafter permitted the students to attend its district as homeless students.
 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.
 Petitioner also submits a one month notice of termination of tenancy form indicating that he and his family were required to vacate their former residence within the district by January 31, 2017. Respondent, however, does not appear to dispute that petitioner and his family were evicted; respondent instead argues that the students have resided at a fixed, regular and adequate nighttime residence since March 2017.