Appeal of J.T., on behalf of her daughter E.R., from action of the Board of Education of the Orchard Park Central School District regarding residency and transportation.

Decision No. 17,874

(July 8, 2020)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

Tahoe., Commissioner.--Petitioner appeals the determination of the Board of Education of the Orchard Park Central School District (“respondent”) that her daughter, E.R. (“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.

At all times relevant to this appeal, the student attended respondent’s schools.  Petitioner and the student resided at a location within respondent’s district (the “in-district residence”) until April 30, 2019, when petitioner’s lease agreement expired.  On May 1, 2019, petitioner and the student moved into a friend’s house located outside of respondent’s district (the “out-of-district residence”).

Although the record is not entirely clear, it appears that petitioner apprised the district that she and the student were homeless on or about May 5, 2019.  The district permitted the student to remain enrolled in its schools and to complete the 2018-2019 school year.

In a letter dated June 24, 2019, respondent’s superintendent requested that petitioner “provide proof” that she and the student were homeless.  The record reflects that petitioner did not respond to this letter.

In a letter sent on August 5, 2019,[1] the superintendent informed petitioner that the student “no longer qualifie[d] for homeless status within [the] district.”  Specifically, the superintendent determined that the student continued to reside at the out-of-district residence and that this constituted a “fixed, regular and adequate nighttime residence.”  The superintendent advised petitioner that the student would be “excluded from the [d]istrict after September 2, 2019.”  This appeal ensued.

Petitioner claims that the student is homeless within the meaning of McKinney-Vento.  Petitioner specifically claims that she and the student are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner seeks a determination that the student is homeless and, thus, entitled to attend respondent’s schools without payment of tuition and to receive transportation.

Respondent argues that petitioner has not established that the student lacks a fixed, regular, and adequate nighttime residence.  Respondent further contends that the appeal is untimely.

First, I must address the procedural matters.  Respondent requests that I accept additional evidence pursuant to section 276.5 of the Commissioner’s regulations.  This additional evidence consists of copies of three letters from respondent’s superintendent to petitioner regarding the student’s homeless status, including the two letters discussed above.[2]  Although respondent has not explained why it did not submit these documents with its answer, the record is otherwise sparse concerning the events giving rise to this appeal, and petitioner does not object to acceptance of these letters.  Therefore, I have accepted these letters into the record in my discretion (see 8 NYCRR §276.5[a]; Appeal of Nahas, 55 Ed Dept, Decision No. 16,816; Appeal of G.-K.D.H. and S.P., 49 id., Decision No. 15,979).

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent’s district clerk and executive secretary to the superintendent (“district clerk”) indicates in an affidavit submitted with respondent’s answer that she mailed the superintendent’s determination letter to petitioner on August 5, 2019, by both certified and regular mail, and that she emailed petitioner a scanned copy of the letter on August 6, 2019.  Although the district clerk states that the certified mail copy of the letter was returned as “not deliverable ... and unable to be forwarded,” she avers that the letter sent by regular mail was not returned by the Post Office and further that petitioner indicates in the petition that respondent denied her request to enroll the student as a homeless student on August 6, 2019.  Petitioner does not dispute receiving the scanned letter emailed to her on August 6, 2019.  Therefore, I find that petitioner received the superintendent’s determination on August 6, 2019 and was required to commence an appeal within 30 days of this date; i.e., September 5, 2019.  Petitioner did not commence the appeal until September 11, 2019, when petitioner submitted the petition to respondent’s homeless liaison and the homeless liaison served a copy of the petition on the district clerk.  Moreover, petitioner does not set forth good cause, or any cause, for the delay (see 8 NYCRR §275.16).  Accordingly, the appeal must be dismissed as untimely (see Appeal of D.D. and G.D., 57 Ed Dept Rep, Decision No. 17,127; Appeal of H.D. and S.D., 56 id., Decision No. 17,020).

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  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:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals; or

(iv) 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;

(v) an unaccompanied youth ...; or

(2) a child or youth who has a primary nighttime location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

(ii) 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).

Based on the record before me, I find that petitioner has failed to meet her burden of proving that the student is homeless under State or federal law.  Initially, petitioner has not demonstrated that she and the student became homeless due to loss of housing, economic hardship or a similar reason.  Although petitioner asserts that she and the student began living at the out-of-district residence after her lease for the in-district residence expired, she has not alleged that she was unable to renew the lease for any reason or otherwise established that she and the student could not have remained within the district (see Appeal of K.L., 59 Ed Dept Rep, Decision No. 17,730). 

In support of her appeal, petitioner submits a copy of her lease for the in-district residence, identifying her monthly rent; a letter dated April 24, 2019 from the landlord of the in-district residence, indicating that petitioner, the student, and petitioner’s other child would be “vacating the premises on April 30, 2019 when their current lease expire[d] due to a change in their living situation”; and a letter dated September 11, 2019 from petitioner’s physician, opining that petitioner “could not reside in a homeless shelter due to her medical condition.”  Without any context or explanation, this information is insufficient to establish that petitioner relocated to the out-of-district residence due to a loss of housing or similar reason. 

Petitioner has also failed to meet her burden of establishing that the out-of-district residence is inadequate.  Although petitioner indicates that she shares the out-of-district residence with the student, her other child, and a fourth individual whom she identifies as the homeowner, she does not assert or establish that the residence is in any way inadequate (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  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).

Indeed, the available evidence in the record suggests that the out-of-district residence is more than adequate.  With its answer, respondent submits 25 photographs of the out-of-district residence as well as information on the home’s features and market value, which it obtained via a real estate website.  This evidence indicates that the out-of-district residence is a single-family home with three bedrooms, one and a half bathrooms, a kitchen, a living room, a family room, a bonus room, an above-ground pool, a hot tub/spa, and a fenced-in yard.  Thus, petitioner has not met her burden of proving that the student lacks a fixed, regular, and adequate night-time residence (see Appeal of D.D., 59 Ed Dept Rep, Decision No. 17,731; Appeal of S.Y., 57 Ed Dept. Rep, Decision No. 17,138; Appeal of S.R., 56 id., Decision No. 16,987; Appeal of D.W., 55 id., Decision No. 16,812).

Further, the petition contains no evidence that the out-of-district residence – where petitioner and the student have resided since May 1, 2019 – is temporary or transitional in nature, or that there is a fixed time limit as to how long petitioner and the student may remain (see Appeal of D.D., 59 Ed Dept Rep, Decision No. 17,731; Appeal of J.S., 57 Ed Dept. Rep, Decision No. 17,134; Appeal of S.R., 56 id. Decision No. 16,987).

Therefore, based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate nighttime residence or is living in a shelter or other temporary living accommodations as set forth in Education Law §3209. Accordingly, I cannot find that respondent’s determination that the student is 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 student’s behalf at any time should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE