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Decision No. 15,459

Appeal of S.D., on behalf of her children S.D. and S.D., from action of the Board of Education of the Cuba-Rushford Central School District regarding residency.


Decision No. 15,459


(August 29, 2006)


Bouvier Partnership, LLP, attorneys for respondent, Chris G. Trapp, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cuba-Rushford Central School District (“respondent”) that her children, S.D. and S.D., are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act, 42 USC �11431 etseq; (“McKinney-Vento”) and, therefore, are not entitled to continue to attend the district’s schools.  The appeal must be dismissed.

Petitioner’s children have been enrolled in respondent’s schools for several years.  The record indicates that petitioner and her family were evicted from their home in the district on or about February 24, 2006.  It is undisputed that since their eviction, petitioner and her family have been living in a three-bedroom duplex apartment owned by the First Baptist Church (“church”) in the Franklinville Central School District and that she has been transporting her children to and from respondent’s schools each day.

On April 6, 2006, petitioner requested that her children be permitted to continue their enrollment in the district’s schools because they were homeless and living in a “transitional housing shelter.”

By letter dated April 6, 2006, respondent’s high school principal advised petitioner that a determination had been made that her children were not homeless within the meaning of McKinney-Vento, specifically because they had a fixed and adequate night-time shelter.  This appeal ensued.  Petitioner’s request for interim relief was rendered moot when respondent agreed to permit her children to continue attending its schools pending a decision in this matter.

Petitioner contends that her children are homeless within the meaning of McKinney-Vento and, therefore, entitled to continue their enrollment in respondent’s district.  Petitioner claims that her current apartment is a “transitional housing shelter” until she can find housing in the district.  She asserts that the church offered her the apartment knowing that she did not have funds for a security deposit or rent and that the church paid for her moving costs and a storage unit for some of her belongings.  Petitioner maintains that the church is aware that this living arrangement is temporary and that she intends to move back to the district.

Additionally, petitioner claims that she has been actively looking for housing within the district.  She asserts that she had tentative plans to rent a trailer in the district in May but that the plans were delayed due to inclement weather.  Petitioner also maintains that removing her children from the district’s schools would be harmful to them because school is the only stable and consistent thing in their lives.

To substantiate her claims, petitioner submits a copy of the eviction papers and a letter from her former landlords’ attorney regarding the eviction.  She also submits a certificate dated July 5, 2005 and a letter dated July 11, 2005 stating that she successfully completed a course in homebuyers education training and that her application for financial assistance under its homeownership program had been granted.  Petitioner submits moving equipment and utility bills addressed to the church for the apartment.

Petitioner further submits a letter from an associate professor of psychiatry and pediatrics for the University at Buffalo in Buffalo, New York stating that petitioner’s son suffers from a medical disorder and that the professor is treating him for related mental health issues.  The letter also states that the eviction from their home has been stressful and traumatic for the family and that a change in schools would add additional stress and could potentially threaten the physical and psychological gains petitioner’s son has made in the past year.

Respondent contends that petitioner’s children are not entitled to attend the district’s schools because they are not homeless within the meaning of McKinney-Vento and Education Law �3209.  To substantiate its contention, respondent submits an e-mail from the church’s pastor stating that petitioner is renting the apartment, although she has not paid April or May’s rent or the utility bill.  The e-mail also states that petitioner advised the pastor that she is looking for affordable housing in the district.

Education Law �3209(1)(a) defines a homeless child as:

(1)         a child or youth who lacks a fixed, regular, and adequate night-time 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;


(v)                  a migratory child ... 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 night-time location that is:

(i)                     a supervised publicly or privately operated shelter designed to provide temporary living accommodations...; or

(ii)   a public or private place not designed for, or ordinarily used as, a regular sleeping accom-modation 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.

Petitioner’s children do not fit the definition of homeless children under either State or federal law.  They have a fixed, regular night-time residence and there is no evidence on the record that such residence is inadequate.   Indeed, the record shows that petitioner and her family are residing in a three-bedroom duplex apartment.  While it is unfortunate that petitioner and her children were evicted from their home, there is no proof in the record that petitioner lives in the kind of shelter or other accommodation described in Education Law �3209.  Consequently, the provisions of Education Law �3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (Appeal of a Student with a Disability, 44 Ed Dept Rep 94, Decision No. 15,108; Appeal of D.R., 43 id.  133, Decision No. 14,944).

Nor has petitioner established that her current residence is temporary or transitional.  The petition contains only conclusory statements by petitioner that her current residence is a “transitional housing shelter.”  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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Although petitioner may be behind in paying both the rent and utilities, there is no evidence that she needs to vacate her current residence.  Under these circumstances, I find respondent’s determination reasonable.