Appeal of S.D., on behalf of her children R.D. and B.D., from action of the Board of Education of the Islip Union Free School District regarding residency.

Decision No. 15,620

(August 6, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Islip Union Free School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 etseq., “McKinney-Vento”).  The appeal must be dismissed.

In September of 2005, petitioner and her family moved out of respondent’s district to live with her mother-in-law because their apartment was allegedly condemned by the Town of Islip.  Petitioner’s children continued to attend respondent’s schools based on petitioner’s assertion that they were homeless and looking for an apartment in the district.  Respondent provided transportation to petitioner’s children to and from her mother-in-law’s residence.

In January of 2007, respondent’s superintendent notified petitioner by letter of his determination that her children were no longer homeless within the meaning of McKinney-Vento, that they would no longer be able to attend respondent’s schools, and would be excluded from attendance effective February 12, 2007.  Petitioner met with district representatives and claimed that she was still homeless and looking for an apartment within respondent’s district.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 2, 2007.

Petitioner contends that her children are homeless children within the meaning of McKinney-Vento and, therefore, are entitled to attend respondent’s schools.  Respondent contends that neither petitioner nor her children reside within respondent’s district and that they are not homeless within the meaning of McKinney-Vento and Education Law §3209.

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;

or

(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 state or federal law.  The record shows that petitioner and her children have lived with her mother-in-law outside respondent’s district for almost two years.  They have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  Additionally, other than her statement, petitioner has provided no evidence that she has made any effort to locate an apartment within respondent’s district.  In sum, petitioner has not established that her family’s living arrangement with her mother-in-law outside the district is temporary or transitional.  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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Accordingly, based on the record before me, I find respondent’s determination reasonable.

THE APPEAL IS DISMISSED.

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