Appeal of G.K, on behalf of her children N.K. and J.G., from action of the Board of Education of the Sachem Central School District regarding residency and transportation.

Decision No. 17,908

(August 11, 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 Sachem Central School District (“respondent”) that her children, N.K and J.G. (“the students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record in this matter is sparse as to the events giving rise this appeal.  As best as can be ascertained, prior to March 2014, petitioner and the students resided at a residence within respondent’s district (“the in-district residence”) and the students attended respondent’s schools.  Thereafter, petitioner and the students began staying at several other locations within respondent’s district until approximately April 2017.  At that time, according to respondent, petitioner and the students relocated to a residence outside of respondent’s district (“the out-of-district residence”).  The students continued to attend respondent’s schools as homeless students.

By letter dated February 27, 2020, respondent’s assistant superintendent for student support and administration (“assistant superintendent”) notified petitioner of his determination that the out-of-district residence was fixed, regular and adequate.  Specifically, the assistant superintendent indicated that, “[a]s of today,” the out-of-district residence “appear[ed] to be permanent” insofar as petitioner and the students had “lived there for almost three years.”  The assistant superintendent thus concluded that the students were “no longer” entitled to attend the district’s schools as homeless students pursuant to McKinney-Vento.  The assistant superintendent informed petitioner that the students would be permitted to complete the 2019-2020 school year at respondent’s schools, constituting student N.K.’s 8th grade year and student J.G.’s 11th grade year.[1]  The assistant superintendent further indicated that student J.G. would be permitted to attend respondent’s high school for the 2020-2021 school year as his terminal year in the building, pending his successful completion of 11th grade (Education Law §3209[2][c]).  This appeal ensued.

Petitioner maintains that she and the students are homeless because they are sharing the housing of other persons due to loss of housing, economic hardship or similar reason.  Specifically, petitioner alleges that she and the students lost the in-district residence to foreclosure and that the out-of-district residence belongs to a friend who is “allowing [them] to stay until [they] find a permanent residence.”  For relief, petitioner seeks a determination that the students are entitled to attend respondent’s schools and receive transportation as homeless students.

Respondent contends that petitioner has failed to establish that she and the students are homeless under McKinney-Vento.  Respondent additionally maintains that its decision was not arbitrary, capricious or unreasonable.

I must first address several procedural matters.  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, petitioner appeals from respondent’s February 27, 2020 determination.  Allowing five days for mailing, petitioner was required to commence her appeal by April 3, 2020.  Although petitioner did not serve the instant petition upon respondent until April 10, 2020, she indicates in the petition that, “[d]ue to COVID-19, [the] paperwork was delayed.”  I note that, as a result of the COVID-19 pandemic, the Governor issued an Executive Order directing all schools within New York State to close as of March 18, 2020.  Based on these mandatory school closures and the widespread implications thereof, including the difficulty of obtaining the paperwork necessary to commence an appeal, I have, in the exercise of my discretion, accepted petitioner’s explanation as a valid excuse and deem the appeal timely.

Petitioner also requests permission to submit a letter from respondent’s middle school notifying student N.K. that she made the honor roll.  Additional affidavits exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  While student N.K.’s placement on the honor roll is of questionable relevance to the issue presented in this appeal – namely, whether the students are homeless pursuant to McKinney-Vento – I have nevertheless accepted this additional submission into the record.

Additionally, I decline to consider any new claims raised in respondent’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Thus, I decline to consider any newly raised factual assertions, or legal arguments predicated upon such assertions.

The appeal must be dismissed as moot with respect to student J.G.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). 

As noted above, respondent indicated in its February 27, 2020 determination that, although the students were “no longer considered to be homeless,” it would permit student J.G. to attend its high school for the upcoming 2020-2021 school year as his terminal year in the building, pending his successful completion of 11th grade.  It appears from the record that respondent that student J.G. did, in fact, complete the 11th grade during the 2019-2020 school year.  Therefore, there is no further relief that can be granted with respect to student J.G., and I find that the appeal is moot with respect to him.

Turning to 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:

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 student N.K. is homeless under State or federal law.  Although petitioner claims that she and the children are residing at the out-of-district residence with her friend “due to loss of housing, economic hardship or similar reason,” she has not submitted any evidence in support of this contention.  Petitioner asserts that she lost the in-district residence to foreclosure in 2014; however, respondent denies this claim in its answer, and petitioner has not submitted a reply to rebut respondent’s position or otherwise explain how her living arrangement is the result of a loss of housing (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774). 

Nor does petitioner detail any efforts she has made to obtain permanent housing since 2014.  Instead, petitioner merely states in conclusory fashion that “[t]rying to find a permanent residence in [New York] has become very difficult, especially since [she has] many health issues.”  Although it is unfortunate that petitioner may be experiencing financial difficulties, 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).  Without any supporting evidence, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of Y.G., 60 Ed Dept Rep, Decision No. 17,877; Appeal of P.B., 55 id., Decision No. 16,804).

Petitioner also claims that the out-of-district residence is inadequate insofar as she, the students, and her other child “all ... share a room with mattresses in it.”  In support of this contention, petitioner submits photographs, depicting a bedroom with twin-sized bunk beds, another twin-sized bed, and a pull-out mattress stored underneath the bunk beds.[3]  Petitioner also submits an unsworn statement, purportedly from the owner of the out-of-district residence, indicating that he allows petitioner, the students, and her other child “to stay in [his] spare room ... until they are able to find permanent housing.” 

Respondent, however, contends that the out-of-district residence is a two-bedroom condominium, with “a fully-functioning kitchen and bathroom,” as well as “working electricity, heat, and hot water.”  Although petitioner’s living situation may not be ideal, she has not established that this arrangement is the result of economic necessity rather than personal choice.  Therefore, on this record, I cannot conclude that the out-of-district residence is inadequate within the meaning of McKinney-Vento (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; see also Appeal of E.M.F., 53 id., Decision No. 16,538; Appeal of T.B., 48 id. 4, Decision No. 15,774). 

Finally, petitioner has not established that her residence is temporary or transitional.  According to respondent, petitioner and the students have lived at the out-of-district residence since April 2017.  Although petitioner states that the out-of-district residence “is not permanent” and that she and the students “do not have a permanent residence,” she has not established that she or the students will have 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).  Indeed, as indicated above, the record contains a letter from the owner of the in-district address dated April 9, 2020 in which he indicates that petitioner and the students may “stay” at the residence “until they are able to find permanent housing.”

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 student N.K. 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, petitioner retains the right to reapply for admission on behalf of student N.K. at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE