Decision No. 17,903
Appeal of H.M., on behalf of his daughter E.M., from action of the Board of Education of the Levittown Union Free School District regarding residency and transportation.
Decision No. 17,903
(August 5, 2020)
Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel
Tahoe., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Levittown Union Free School District (“respondent”) that his daughter (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.
The record in this matter is sparse and not entirely clear regarding the events giving rise to this appeal. As best as can be ascertained, the student previously resided at a location within respondent’s district (the “in-district residence”) and attended respondent’s schools as a district resident. In November 2018, the student left the in-district residence and began residing at a location outside of respondent’s district (the “out-of-district residence”) with petitioner; however, it appears that the student continued to attend respondent’s schools as a homeless student.
In a letter dated May 15, 2020, respondent’s residency officer informed petitioner of her determination that the student was “no longer” eligible to attend respondent’s schools as a homeless student because the out-of-district residence constituted a fixed, regular and adequate nighttime residence. The residency officer indicated that, if petitioner sought to appeal this determination, he should contact respondent’s homeless liaison prior to June 1, 2020.
In a letter dated June 10, 2020, the residency officer indicated that, because petitioner had not appealed her May 15, 2020 determination, the district’s homeless determination was now final. This appeal ensued.
Petitioner asserts that the student is homeless because she is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason. For relief, he seeks a determination that the student is entitled to attend respondent’s schools and receive transportation as a homeless student.
Respondent denies that the student is homeless within the meaning of McKinney-Vento or the Education Law.
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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
Petitioner has failed to meet his burden of proving that the student is homeless. Initially, although petitioner alleges that the student is sharing the housing of others due to loss of housing, economic hardship, or a similar reason, he lists only himself and the student’s older sibling as the individuals with whom the student is sharing housing. Petitioner further identifies himself as the student’s legal guardian and indicates that he himself is not homeless. Accordingly, because petitioner claims only that the student resides with him and her sibling at the out-of-district residence, he has failed to establish that the student is homeless on the ground that she is sharing the housing of others.
Furthermore, petitioner has not established that the student was forced to leave the in-district residence due to a loss of housing or other reason. Petitioner asserts in conclusory fashion that the student was rendered homeless due to “parent divorce/loss of home,” but he fails to elaborate as to the circumstances of the student’s move or to produce any proof in support of this assertion. Therefore, I find that petitioner has failed to establish that the student is residing at the out-of-district residence due to a loss of housing or similar reason (Appeal of A.K., 58 Ed Dept Rep, Decision No. 17,440).
Even assuming, arguendo, that the student was compelled to relocate to the out-of-district residence due to economic necessity, petitioner has submitted no evidence suggesting that the out-of-district residence is inadequate. Petitioner offers no description of the characteristics of the out-of-district residence, such as the number of bedrooms. Indeed, petitioner submits no evidence at all in support of his claims in the petition. Therefore, on this record, petitioner has failed to meet his burden of proving that the student lacks a fixed, regular and adequate nighttime residence (Appeal of T.C., 56 Ed Dept Rep, Decision No. 17,116; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).
Finally, I note that there is no proof that the out-of-district residence is temporary or transitional. According to respondent, petitioner and the student have resided at the out-of-district residence since November 2018. Moreover, petitioner does not assert that he or the student need to vacate the out-of-district residence or that there is a fixed time limit as to how long they may 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; Appeal of a Student with a Disability, 52 id., Decision 16,404).
Based upon the record before me, petitioner has failed to demonstrate that the student is homeless within the meaning of McKinney-Vento insofar as he has not proven that she lacks a fixed, regular and adequate nighttime residence or that she is living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a). Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.
Although the appeal must be dismissed for the reasons described above, I note that petitioner has 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
 The residency officer also determined that petitioner’s older sibling P.H. was no longer homeless; however, she indicated that the district would permit the sibling to complete the 2020-2021 school year as his terminal year in respondent’s Division Avenue High School (Education Law §3209[c]).
 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.