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Decision No. 14,944

Appeal of D.R., on behalf of A.B. and D.E., from action of the Board of Education of the Eastchester Union Free School District regarding residency.


Decision No. 14,944


(August 26, 2003)


Advocates for Children of New York, Inc., attorneys for petitioner, P. Leigh Sansone, Esq., of counsel


Keane & Beane, P.C., attorneys for respondent, Frances M. Pantaleo and Michael D. Jones, Esqs., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastchester Union Free School District ("respondent") that her children, A.B. and D.E., are neither district residents nor entitled to attend the schools of the district because they are homeless.  The appeal must be dismissed.

Petitioner"s children had been enrolled in respondent"s schools for a number of years based on petitioner"s representation that she and the children lived with petitioner"s mother within the district.  At some point during the 2001-2002 school year, respondent"s staff began to suspect that petitioner had moved out of the district.  By letter dated January 22, 2002, respondent"s director of pupil personnel services informed petitioner that a question had arisen regarding her residency.  In February 2002, the director spoke with petitioner and a caseworker from the Mental Health Association of Westchester regarding petitioner"s residency.  By letter dated February 15, 2002, the director notified petitioner that a determination had been made that the children were not district residents.  Petitioner appealed that determination, contending that while she had moved, A.B. and D.E. continued to reside with her mother within the district.  I dismissed that appeal on August 2, 2002 (Appeal of D.R., 42 Ed Dept Rep __, Decision No. 14,764).

In September 2002, petitioner sought to enroll her children in district schools contending that she was living in a temporary placement outside the district while actively seeking suitable housing within the district.  Respondent denied petitioner"s request by letter dated September 17, 2002, and offered petitioner the opportunity to submit additional information. 

Petitioner submitted letters from her case manager at the Mental Health Association of Westchester stating that petitioner was a participant in the Shelter Plus Care program ("Shelter Plus"), a federal program that subsidizes housing through rental assistance grants for mentally ill homeless people for a period of up to five years.  The letters contained information regarding petitioner's situation and at least one asserted that petitioner, while still actively seeking residence in the district, had encountered difficulties because of resistance to subsidized individuals and because rentals within the district cost more than the subsidy provided.

Petitioner"s attorney asserted that petitioner"s children were eligible for immediate admission to district schools pursuant to the McKinney-Vento Homeless Assistance Act ("McKinney-Vento") (42 U.S.C. "11301 etseq.).  McKinney-Vento and Education Law "3209 permit homeless children to attend the school district they were last enrolled in, even if they are temporarily housed in another school district (42 USCA "11432[g][3][A]; Education Law "3209[2][a]).  On September 18, 2002, respondent"s attorney sent a letter to petitioner"s attorney requesting documentation proving that petitioner and her children were homeless.  By letter dated September 20, 2002, petitioner"s attorney again asserted that petitioner was homeless and that she was living in supervised transitional housing.  She requested that respondent admit petitioner"s children until the dispute was resolved as required by McKinney-Vento.

Subsequently, additional information was submitted to respondent on petitioner"s behalf.  This included a letter from A.B."s psychiatric social worker indicating that A.B. had serious emotional problems and asserting that a change in schools could cause A.B. to have a psychotic break.  By letter dated October 15, 2002, respondent informed petitioner that her children would not be admitted to the district"s schools because they resided with her outside the district.  This appeal ensued and petitioner"s request for interim relief was denied on December 13, 2002.  It appears that A.B. was subsequently enrolled in the City School District of the City of Mount Vernon and that district has contracted with respondent"s district to provide special education to A.B.

Petitioner asserts that she and her children had lived with her mother and brother in a two-bedroom apartment in respondent"s district for a number of years and that they were forced to move because of domestic violence perpetrated against her by her brother, who is mentally ill.  She contends that she and her children became homeless when they left that residence and remain homeless while they live temporarily in supported housing.    Petitioner argues that her current housing is transitional because Shelter Care grants are statutorily limited to five years and because she must submit to supervision by a case manager and meet other program requirements to remain housed there.  Petitioner asserts that her children are entitled to attend respondent"s schools and that McKinney-Vento required respondent to admit her children to its schools while the residency dispute was pending.  Petitioner also asserts that changing schools would be extremely detrimental to A.B.  Petitioner requests a determination that her children are homeless and/or residents of the district and that they are, therefore, entitled to attend the district"s schools without the payment of tuition.

Respondent contends that its determination that petitioner and her children are not district residents or homeless is reasonable.  Respondent asserts that petitioner is not homeless as defined by Education Law "3209 or McKinney-Vento and that her housing is neither temporary nor transitional.  Respondent argues that the appeal should be dismissed pursuant to the doctrines of resjudicata and staredecisis because a ruling was made on petitioner"s residency in her previous appeal.  Respondent also asserts that I lack primary jurisdiction regarding A.B."s educational placement.

Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Seger, 42 Ed Dept Rep ___, Decision No. 14,849; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603).  A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Seger, supra, Appeal of Thomas, supra; Appeal of Donohue, 41 id. 26, Decision No. 14,601).  In this case, petitioner admits that A.B. and D.E. are living with her outside the district.  She contends that her absence from the district is temporary because she is in transitional housing and that under federal and State law governing homeless children, her children are eligible to attend respondent"s schools.

Education Law "3209(1), as amended effective July 1, 2003, defines a homeless child as:

(1) a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

(i) sharing the housing of other persons due to a  loss of  housing, economic hardship or a similar reason;
(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
(iii) abandoned in hospitals;
(iv) awaiting foster care placement; or
(v) a migratory child, as defined in subsection two of section thirteen hundred nine of the Elementary and Secondary Education Act of 1965, as amended, who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or
(2)     a child or youth who has a primary nighttime location that is:
(i) a supervised  publicly or privately operated shelter designed to provide temporary living accommodations including, but not  limited  to,  shelters operated or approved by the state or local department of social services, and residential programs for runaway and homeless youth established pursuant to article nineteen-H of the executive law; or
(ii) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings, including a child or youth who is living in a car, park, public space, abandoned building, substandard housing, bus or train stations or similar setting.

Section 100.2[x] of the Commissioner"s regulations, as amended effective March 6, 2003, also contains this definition.  Both the Education Law and Commissioner"s regulations conform to the definition of "homeless children and youths" in McKinney-Vento (42 U.S.C. "11302).  Although the Education Law and Commissioner"s regulations were amended after the commencement of this appeal, the changes do not affect the analysis of petitioner"s situation.

A.B. and D.E. do not fit the definition of homeless children under either state or federal law.  They have a fixed, regular nighttime residence and there is no contention that such residence is inadequate.  While it is unfortunate that petitioner was compelled to leave her mother"s home, there is no proof in the record that petitioner lives in the kind of shelter or other accommodation described in "3209.  Consequently, the provisions of Education Law "3209(2) and McKinney-Vento regarding choice of district for homeless children are not applicable in petitioner"s circumstances.

Additionally, petitioner has not established that her current residence is temporary or transitional. Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Reynolds, 42 Ed Dept Rep __, Decision No. 14,853).  Federal regulations governing Shelter Plus state that the purpose of the program is to provide grants "to be used for rental assistance for permanent housing for homeless persons with disabilities" (24 CFR "582.1) (emphasis added).  There is no evidence that petitioner needs to vacate her current residence even after the Shelter Plus grant expires.  Under these circumstances, I find respondent"s determination that A.B. and D.E. are not district residents or homeless to be reasonable.

As to petitioner"s contention that respondent should have placed her children in its schools pending resolution of the residency dispute, because no meaningful relief can be granted at this point, I need not address that issue (Appeal of Baronti, 42 Ed Dept Rep __, Decision No. 14,802; Appeal of Bryan, 40 id. __, Decision No. 14,445).

In light of the decision in this matter, I need not address the parties remaining contentions.