Appeal of Y.G., on behalf of her grandson R.S., from action of the Board of Education of the Malverne Union Free School District regarding residency and transportation.

Decision No. 17,877

(July 13, 2020)

             Frazer & Feldman, LLP, attorneys for respondent, Abigail A. Hoglund-Shen, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that her grandson (“the student”)[1] 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.

The record indicates that, prior to the events described in this appeal, petitioner and the student resided at a location within respondent’s district (the “in-district residence”).  The student attended respondent’s schools as a resident student.  In or about January 2018, the district received information that the in-district residence had gone into foreclosure and that petitioner and the student were living at an address outside the district (the “out-of-district residence”).

In response, the district commenced a residency investigation and conducted surveillance at the out-of-district residence on six weekdays between January 3, 2018 and January 17, 2018.  This surveillance revealed that the student – accompanied by petitioner or another adult – regularly left the out-of-district residence before school and returned to the out-of-district residence after school.  Based on this evidence, respondent’s assistant superintendent for district operations and homeless liaison (“liaison”) concluded that neither petitioner nor the student resided in the district.

By letter dated January 22, 2018, the liaison informed petitioner of his determination that the student was not a district resident and would therefore be excluded from the district’s schools effective January 29, 2018.  He also advised petitioner of her right to request a meeting with him to discuss her residency status.

On January 29, 2018, petitioner met with the liaison and claimed, for the first time, that she and the student were homeless and staying with relatives outside the district.  Based on this assertion, the liaison permitted the student to continue attending the district’s schools as a homeless student.

In January 2019, the district reviewed its records and discovered that petitioner had not provided additional information regarding her claim of homelessness and that she and the student continued to reside at the out-of-district residence.

By letter dated January 30, 2019, the liaison notified petitioner of his determination that the student was not a district resident or homeless pursuant to McKinney-Vento.  The liaison advised petitioner that, if she failed to dispute his determination by February 8, 2018, the student would be excluded from respondent’s schools on that date.

At petitioner’s request, the liaison met with petitioner on or about February 8, 2019 to discuss the student’s residency.  According to an affidavit submitted by the liaison, petitioner admitted that she and the student were residing with her daughter at the out-of-district residence and were not homeless; however, petitioner indicated that she would be moving out of state and asked that the student be permitted to attend district schools through the end of the 2018-2019 school year.  The liaison informed petitioner that, based on this assertion, the district would permit the student to finish the school year “as a courtesy.”  The liaison asked petitioner to commit her request to writing.

By letter dated February 10, 2019, petitioner asserted that she and the student were “homeless” and requested that the student be permitted to attend the district’s schools for the remainder of the 2018-2019 school year, after which the student would “commence his junior school year at another school.”

By letter dated February 12, 2019, the liaison notified petitioner of his determination that the out-of-district residence constituted a fixed, regular and adequate nighttime residence.  The liaison indicated that the student would be excluded from respondent’s schools as of the end of the school day on June 28, 2019 – the last day of the 2018-2019 school year.

According to respondent, on or about August 8, 2019, petitioner informed the liaison by telephone that she “had only claimed to be homeless to allow the student to take advantage of the [d]istrict’s schools.”  The liaison asserts that petitioner asked him to “do her a favor” and re-enroll the student for the 2019-2020 school year.  The liaison informed petitioner during this call that the student could not be enrolled because he was neither a district resident nor homeless.

By letter dated August 19, 2019, the liaison formally denied petitioner’s request to enroll the student and notified petitioner that district policy did not allow for the enrollment of nonresident students “on a tuition basis or otherwise.”  Nevertheless, the district enrolled the student for the 2019-2020 school year and provided the student with transportation.  According to the liaison’s affidavit, the district enrolled the student on the ground that the prior exclusion letters had failed to advise petitioner of her rights under McKinney-Vento or her right to appeal the district’s determination.

The district then re-initiated the exclusion process.  By letter dated September 26, 2019, respondent’s assistant superintendent for business (“assistant superintendent”) informed petitioner of his determination that she and the student were not district residents or homeless and, therefore, the student would be excluded from respondent’s schools effective October 28, 2019.  The assistant superintendent indicated that, based on the information petitioner had provided during her February 8, 2019 meeting with the liaison, the out-of-district residence was a fixed, regular and adequate nighttime residence.  This appeal ensued.

Petitioner alleges that the student is homeless pursuant to McKinney-Vento.  Petitioner maintains that she and the student live at the out-of-district residence with her daughter and two other relatives due to loss of housing, economic hardship or similar reason.  Petitioner further maintains that she and the student sleep in the living room on the couch and that she is “not authorized” to reside at the out-of-district residence because she is not named on the apartment lease.  Petitioner also asserts that she requested transportation for the student in November 2017 but “did not receive any until [three] months later.”  Petitioner seeks a determination that the student is entitled to attend respondent’s schools and receive transportation as a homeless student.

Respondent contends that petitioner has failed to establish facts sufficient to support her claim of homelessness.  Respondent further contends that its actions were in accordance with McKinney-Vento.  Respondent maintains that its determination to exclude the student was based on credible evidence, in accordance with district and educational policy and within its lawful discretion.  Respondent also maintains that the liaison found petitioner to lack credibility and that this determination is entitled to deference.

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 ....[2]

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 and the student have lived at the out-of-district residence since January 2018.  Additionally, respondent indicates that petitioner has acknowledged, on at least two occasions, that she and student are not homeless.  In particular, the liaison asserts that, in August 2019, petitioner told him that she had claimed homeless status only to permit the student to take advantage of respondent’s schools.  Petitioner did not submit a reply or otherwise respond to respondent’s allegations.  Respondent maintains that the liaison “carefully determined that [petitioner’s] claims of homelessness lack credibility” based on his numerous interactions with petitioner.  I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of Lee D., 38 id. 262, Decision No. 14,029).  On this record, I credit respondent’s unrebutted allegations concerning petitioner’s admission that she is not in fact homeless.

Moreover, petitioner submits no evidence that the out-of-district residence is not a fixed, regular and adequate nighttime residence.  Other than her conclusory statement in the petition that she and the student are sleeping on a couch in the living room and that the student’s aunt, uncle and cousin also occupy the out-of-district residence, petitioner has provided no evidence to verify her living arrangements, and she fails to explain why these facts alone render the housing inadequate.  Respondent alleges that the out-of-district residence has heat, electricity and running water and that there are no conditions that would make it uninhabitable.  Petitioner did not submit a reply to rebut respondent’s assertion or otherwise explain how her living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774).  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).

Moreover, petitioner has not established that her residence is temporary or transitional.  Petitioner and the student have lived at the out-of-district residence since January 2018.  While petitioner told the liaison that she was moving out of state in February 2018, the record reflects that petitioner did not do so, and that she and the student have continuously resided at the out-of-district residence since at least January 2018.  Petitioner neither asserts nor establishes that she and the student will have to, or ever had to, vacate the out-of-district 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).

In addition, while the record contains evidence that petitioner may be having financial problems, 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).

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 because petitioner has not met her burden of proof, 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