Decision No. 17,920
Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Commack Union Free School District regarding residency and transportation.
Decision No. 17,920
(September 4, 2020)
Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel
Rosa., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Commack Union Free School District (“respondent”) that her daughter (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, not entitled to attend the district’s schools tuition-free or receive transportation. The appeal must be sustained.
The record in this matter is sparse as to the events giving rise this appeal. As best as can be ascertained, the student was previously enrolled in respondent’s schools as a district resident. In or around 2017, petitioner and the student lost their in-district housing when their landlord sold their residence and they were evicted. Petitioner and the student then began residing at one or more hotels or motels located outside of respondent’s district. Respondent allowed the student to attend its schools as a homeless student.
By letter dated January 6, 2020, the district notified petitioner that it had determined that the student was no longer homeless and, therefore, no longer eligible to attend the district’s schools. Petitioner appealed this determination.
By letter dated March 13, 2020, respondent’s residency officer and assistant superintendent for business and operations (“assistant superintendent”) upheld the district’s initial determination that the student was no longer homeless. In this letter, the assistant superintendent noted that, based on information petitioner had provided to respondent’s homeless liaison, petitioner was “spending over $2,500 a month to stay” at a particular motel. Thus, the assistant superintendent concluded that petitioner “ha[d] the means to pay for permanent housing but instead cho[se] to live” at the motel. The assistant superintendent advised petitioner that the student would be permitted to complete the 2019-2020 school year in its schools but would be excluded from the district’s schools as of June 30, 2020. This appeal ensued.
Petitioner argues that the student is homeless because she is living in motels, hotels, trailer parks, or camping grounds due to a lack of alternative adequate accommodations. Petitioner requests a determination that the student is homeless and, thus, entitled to attend respondent’s schools tuition-free and receive transportation.
Respondent argues that petitioner has failed to meet her burden of demonstrating that the student is homeless within the meaning of McKinney-Vento. Respondent additionally argues that its decision to exclude the student from its schools was not arbitrary or capricious.
First, I must address a procedural matter. Respondent’s memorandum of law was served one day late. Section 276.4 of the Commissioner’s regulations requires respondent to serve a memorandum of law on petitioner within 30 days after service of the answer or 20 days after service of the reply, whichever is later. The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]; Appeals of McLoughlin and Wood, 55 Ed Dept Rep, Decision No. 16,886). Here, respondent has not provided any explanation for its late submission. As such, I have not considered respondent’s memorandum of law in reaching my determination.
Turning to the merits, 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 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).
On this record, petitioner has sufficiently demonstrated that she and the student are living in motels and hotels due to a lack of alternative adequate accommodations such that they lack a fixed, regular and adequate nighttime residence. In the petition, petitioner describes her living circumstances as follows:
[The student’s] living arrangement is day to day. We pay daily in a motel and if we are unable to pay we stay at friends[’] or family’s houses for a day or two. We have also checked into other hotels and motels if [I] have free points or not. Sometimes hotels and motels only have a couple of rooms available because the rooms are booked so we hop to another motel/hotel that[’]s available.
In support of these assertions, petitioner submits receipts for motel or hotel rooms reserved on various dates between November 2017 and April 2019. One receipt, for example, identifies stays at three separate hotels – in Hicksville, New York; Ronkonkoma, New York; and West Atlantic City, New Jersey – between September and November 2018.
While respondent denies petitioner’s contentions in its answer, it provides no evidence to rebut or respond to petitioner’s assertions. Rather, the only evidence in the record reflecting respondent’s basis for its determination are two hearsay statements contained in the assistant superintendent’s March 13, 2020 exclusion letter. Specifically, the letter indicates that petitioner purportedly told the homeless liaison that she has stayed at a particular motel for “three years as of August 2020” and that she pays “over $2,500 per month to stay” at that motel.
The first contention, as indicated above, is contradicted by the various receipts that petitioner submits on appeal. Even if petitioner typically stays at the particular motel identified by respondent, petitioner’s evidence reflects frequent stays at various other locations. Moreover, although respondent claims that petitioner represented to the homeless liaison that she has stayed at a specific motel for the past three years, respondent does not expressly address petitioner’s claim that she and the student stay at other locations at various times or argue that petitioner failed to present this argument below (compare Appeal of D.E., 60 Ed Dept Rep, Decision No. 17,894 [district submitted affidavit to support its contention that petitioner impermissibly raised a new factual claim on appeal]). Accordingly, I find petitioner’s claim that she and the student stay at several different hotels and her evidence in support thereof to be more persuasive.
Furthermore, with respect to the second contention, the mere fact that petitioner is able to pay for hotel or motel rooms each month does not demonstrate, ipso facto, that she can afford a residence within respondent’s district. In this respect, I note that the district’s exclusion letter indicates that petitioner advised the homeless liaison that she “did not have enough money for a deposit or furniture for an apartment.” I find this to be a plausible explanation for petitioner’s inability to secure a residence despite her apparent ability to afford hotel or motel rooms, and respondent has failed to refute this explanation through the submission of an affidavit or any other evidence.
Finally, with respect to the temporary or transitional nature of petitioner’s living circumstances, petitioner has submitted evidence demonstrating her efforts to obtain permanent housing within respondent’s district. Specifically, petitioner submits a copy of an email she received from an employee assistance program on February 5, 2020, identifying two rental units within respondent’s district with monthly rents “below [petitioner’s] current rent of $2,240.” Petitioner also submits an email she sent to the homeless liaison in April 2020, in which she explains her efforts to obtain housing within respondent’s district and how such efforts were hindered by the COVID-19 pandemic. I find that this information further supports a finding that petitioner’s present living circumstances are not fixed, regular, and adequate.
Thus, based on the limited record before me, I find that petitioner has met her burden of proving that the student lacks a fixed, regular, and adequate nighttime residence.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent permit the student who is the subject of this appeal to attend school in the Commack Union Free School District without the payment of tuition and provide transportation services to such student for the duration of homelessness and in accordance with Education Law §3209, including but not limited to those provisions regarding a child’s terminal year in a school building, where applicable.
END OF FILE
 Neither party has submitted a copy of the district’s initial January 6, 2020 letter.
 It appears from the record that the district subsequently sent an otherwise identical version of this letter dated April 8, 2020, after petitioner claimed not to have received the March 13 letter.
 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.
 Based on the email, it appears that petitioner had identified this figure as her current monthly rent in prior communications with the employee assistance program.