Appeal of J.S, on behalf of her children J.W and O.W, from action of the Board of Education of the South Huntington Union Free School District School regarding residency and transportation.

Decision No. 17,883

(July 21, 2020)

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

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the South Huntington Union Free School District (“respondent”) that her children, J.W. and O.W. (“the students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record reflects that, prior to September 2018, petitioner and the students resided at a location within respondent’s district (“the in-district residence”) and the students attended respondent’s schools.  At some point thereafter, petitioner and the students were evicted from the in-district residence and moved in with petitioner’s parents, who reside outside of respondent’s district (“the out-of-district residence”).

In September 2018, petitioner registered the students in respondent’s schools, indicating that they were temporarily residing with her parents at the out-of-district residence.  The district enrolled the students as homeless students pursuant to McKinney-Vento.

By letter dated April 4, 2019, respondent’s social worker and homeless liaison (“liaison”) requested that petitioner update the students’ address and housing information.  When petitioner failed to do so, the liaison contacted petitioner and scheduled a home visit.

On June 11, 2019, the liaison conducted a home visit of the out-of-district residence, which she describes in an affidavit submitted with respondent’s answer as “a free-standing ranch-style house” with three bedrooms, a dining room, a kitchen, and a “lower floor with additional living space.”  The liaison further indicates that the out-of-district residence was located on a “quiet street” and had functioning utilities, including water and electricity.  According to the liaison, one of the students had her own bedroom while the other student shared a bedroom with his four-year-old cousin, whom petitioner is raising.  Petitioner’s parents occupied the third bedroom.  Petitioner told the liaison that she and the students’ father slept on an air mattress in the living room; however, the liaison states that she did not observe an air mattress in the living room during her home visit.

By letter dated June 19, 2019, respondent’s assistant superintendent of student services notified petitioner of the district’s determination that the out-of-district residence was fixed, regular and adequate and, therefore, the students were not homeless pursuant to McKinney-Vento and not entitled to enroll in respondent’s schools for the 2019-2020 school year.  This appeal ensued.

Petitioner maintains that she and the students are sharing the housing of other persons due to loss of housing, economic hardship or similar reason and, therefore, are homeless within the meaning of McKinney-Vento.  Specifically, petitioner alleges that she was forced to move in with her parents because she was evicted from the in-district residence, lost her job, began raising her nephew after her sibling’s death and was unable to obtain affordable housing.  Petitioner maintains that, due to size constraints of the out-of-district residence, she “cannot stay at [her] parents[’] house forever.”  Petitioner further asserts that she has a pending application with the Department of Social Services and hopes to “get assistance to get [her and the students’] lives back on track.”  Petitioner seeks a determination that the students are homeless within the meaning of McKinney-Vento and, thus, entitled to attend respondent’s schools and receive transportation.

Respondent contends that petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate nighttime residence.  Respondent further asserts that its decision was rational and 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 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 students are homeless under State or federal law.  According to the record, petitioner and the students have lived at the out-of-district residence since at least September 2018.  As noted above, the district’s social worker conducted a home visit at the out-of-district residence and concluded that it had adequate utilities, including water and electricity; that one of the students had her own bedroom while the other shared a bedroom with his four-year-old cousin; that petitioner’s parents slept in the out-of-district residence’s third bedroom; and that petitioner and the students’ father slept on an air mattress in the living room.  Petitioner did not submit a reply to rebut respondent’s assertions or otherwise explain how her living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774).  Petitioner merely states in a letter attached to the petition “that there is not a lot of room to fit [her and the students] comfortably.”  Petitioner’s conclusory statement – especially in light of the information obtained from the liaison’s home visit, suggesting that the out-of-district residence is adequate – is 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).  Therefore, on this record, petitioner has not established that the out-of-district residence is inadequate (see Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of T.B., 48 id. 4, Decision No. 15,744).

Although petitioner submits documentation dated July 6, 2019 indicating that a decision on her application for public assistance had “not yet been made” and that her application for supplemental nutrition assistance had been denied, I do not find that this information is relevant to the adequacy of the out-of-district 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).

Moreover, petitioner has not established that her residence is temporary or transitional.  Petitioner and the students have lived at the out-of-district residence since at least September 2018.  Although petitioner states that she cannot remain at the out-of-district residence “forever,” petitioner neither asserts, nor submits any evidence establishing, that she and the children need to vacate the 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 students 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 students are not homeless and, thus, not entitled to attend district schools or receive transportation 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 students at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE