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Decision No. 15,774

Appeal of T.B., on behalf of her daughter B.B., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,774

(July 3, 2008)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her daughter, B.B., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to continue to attend the district’s schools.  The appeal must be dismissed.

Petitioner claims that, on or about August 17, 2007, she and B.B. “fled” their home in Brooklyn “due to domestic violence” and began living with petitioner’s sister in Elmont, within respondent’s district.

On or about August 31, 2007, petitioner submitted a registration form to enroll B.B. in respondent’s high school.  On the form, petitioner listed her sister’s Elmont address as her residence and stated that she and B.B. are “doubled-up as a safety issue/no other living option at this time.”  Petitioner submitted both a renter’s affidavit and an owner’s affidavit (signed by her sister) stating that petitioner resides at the Elmont address with B.B. and her two other children.  Petitioner also submitted a custodian’s affidavit stating that she expects to live at the Elmont address for “at least 8 years.”

By letter dated October 4, 2007, respondent informed petitioner that a determination had been made that B.B. was not a district resident and would be excluded from its schools effective October 19, 2007 because of “Actual Residence Elsewhere & Temporary Residence Established for Purpose of Attending District Schools.”

Petitioner appealed this determination and an administrative review was held on October 24, 2007.  At the review, petitioner testified that she and B.B. share a bed in the basement of her sister’s house, for which petitioner pays a monthly rent of $400.  Petitioner stated that, prior to moving to Elmont in August 2007, she lived in Brooklyn for approximately 20 years in a home owned by another sister.  Petitioner explained that she and B.B. left the Brooklyn residence because of “a domestic situation.  The man that was in and out of my life made a threat to me and [B.B.] ... so I removed myself from the scene and out of the house.”

Petitioner testified that she has 10-year-old twin sons who “are staying with their father sometimes, and their aunt [at the Brooklyn residence] sometimes.”  Petitioner acknowledged that her sons attended elementary school in the Elmont Union Free School District, for which respondent provides secondary school education, until early October 2007, when “the situation warranted that they could go back to the house [in Brooklyn] and stay with their aunt, but myself and [B.B] could not.”

Respondent produced evidence that it conducted a surveillance of the Elmont address on seven weekday mornings between September 17 and October 24, 2007, beginning at approximately 6:00 a.m.  On each of those occasions, B.B. was not observed leaving the in-district residence in the morning, but her attendance at school on those days was confirmed.  Moreover, on six of the mornings, petitioner was observed arriving at the Elmont address and dropping off her sons, who then entered the house and left with a third boy, proceeding in the direction of the elementary school in the Elmont Union Free School District.  On October 24, 2007, the date of the administrative review, petitioner was observed arriving at the Elmont residence at approximately 8:08 a.m. and leaving at 8:15 a.m.  In response to respondent’s surveillance evidence, petitioner explained that each morning she leaves the Elmont residence with B.B. between 5:30 a.m. and 6:00 a.m., drives to Brooklyn to pick up her sons and take them to school, then returns to Elmont to take B.B. to school.

By letter dated December 17, 2007, the administrative review officer notified petitioner of her determination that B.B. would be excluded from respondent’s schools effective January 25, 2008 because of “Parental Residence Out-of-District” and “Does Not Meet Definition of Homeless Child.”  This appeal ensued.  Petitioner’s request for interim relief was granted on January 31, 2008.

Petitioner contends that B.B. is a homeless child within the meaning of McKinney-Vento and, therefore, is entitled to attend respondent’s schools.  Respondent disputes that petitioner and B.B. are homeless within the meaning of McKinney-Vento and contends that petitioner has not established residency within the district.

I find no merit to petitioner’s contention that B.B. is a homeless child.  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

(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 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.

Petitioner’s daughter does not fit the definition of a homeless child under state or federal law.  Petitioner asserts that, since August 2007, she and B.B. have lived in the basement of her sister’s Elmont residence, for which she pays approximately $400 per month in rent.  Petitioner thus claims to have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  Petitioner also claims that she intends to remain with her sister for eight years.  While it is unfortunate that petitioner felt the need to leave her Brooklyn residence, there is no proof in the record that she lost her Brooklyn residence and is required to live 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 district for homeless children are not applicable in petitioner’s circumstances.

I also find that petitioner has not demonstrated that she has established residency within respondent’s district.  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). 

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

In addition to its surveillance evidence, respondent produced several documents to support its contention that petitioner does not reside within the district.  These documents include records showing that one of petitioner’s two cars was registered to the Brooklyn address and the other to the Elmont address; copies of petitioner’s driver’s license and telephone listings which show the Brooklyn residence as her address; a copy of a deed dated January 18, 1991, in which the Brooklyn residence was conveyed to petitioner and one of her sisters; and records indicating that petitioner and her sister recorded a mortgage on the Brooklyn residence on or about April 12, 2006.

Together with B.B.’s registration form, petitioner submitted renter’s and custodian’s affidavits, as well as an owner’s affidavit signed by her sister.  Each of these documents state that petitioner, B.B. and petitioner’s two sons live at the Elmont address.  Other than the fact that petitioner’s sister has signed an owner’s affidavit and that petitioner has registered one of her two cars at the Elmont address, the record contains no documentary evidence to support petitioner’s claim of residency.  Based on the record before me, I find that petitioner has not carried her burden of establishing that she is a resident of respondent’s district.  Accordingly, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable. 

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on B.B.’s behalf and to present any new information for respondent’s consideration.

In light of this disposition, I need not address respondent’s request to submit additional evidence of surveillance conducted during the pendency of this appeal.