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Decision No. 15,781

Appeal of P.R., on behalf of her daughter P.M., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Appeal of P.R., on behalf of her son J.R., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,781

(July 9, 2008)

Ingergman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

AHEARN, Acting Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Baldwin 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”) and, therefore, are not entitled to continue to attend the district’s schools.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

The record indicates that on or about June 23, 2007 a burglary was reported at petitioner’s in-district apartment.  In August 2007, petitioner, her husband, P.M. and J.R. moved out of respondent’s district to live with petitioner’s father-in-law in East Rockaway.  P.M. and J.R. have been attending school in respondent’s district since September 2007.

On January 7, 2008, respondent’s registration clerk (“clerk”) completed a residency inquiry form regarding J.R.  On the form, the clerk stated that mail sent by respondent to petitioner’s in-district address had been returned marked “return to sender” and “forwarding time expired” and listed the East Rockaway address.  The clerk also stated that the telephone number at petitioner’s in-district address was no longer in service.

By letter dated February 1, 2008, respondent’s director of pupil services (“director”) informed petitioner that a determination had been made that petitioner no longer lived in respondent’s district and that P.M. and J.R. would be excluded from respondent’s schools on February 11, 2008. 

In its verified answer, respondent claims that on or about February 6, 2008, petitioner participated in a telephone conference with the director and respondent’s residency investigator (“investigator”), during which petitioner stated that her family moved to East Rockaway after the June 23, 2007 burglary because they no longer felt safe in their in-district residence.  Petitioner stated that she was looking for housing within respondent’s district and that her family’s stay in East Rockaway would be temporary.

According to respondent, on or about February 7, 2008, petitioner contacted respondent’s homeless liaison to discuss whether her family was homeless within the meaning of McKinney-Vento.  Respondent claims that, based on the information provided by petitioner, its homeless liaison determined that she was not homeless and advised her that she could appeal this decision.  By letter dated February 12, 2008, the director informed petitioner that a determination had been made that petitioner was neither a district resident nor homeless within the meaning of McKinney-Vento and that P.M. and J.R. would be excluded from respondent’s schools effective February 15, 2008.

In a March 28, 2008 letter, the director confirmed that respondent had extended the last day of attendance for P.M. and J.R. to April 4, 2008 to provide petitioner with sufficient time to commence an appeal pursuant to Education Law §310.  This appeal ensued.  Petitioner’s requests for interim relief were granted, in part, on April 4, 2008, directing respondent to admit P.M. and J.R. on a tuition-free basis pending a determination of the appeals.

Petitioner contends that P.M. and J.R. are homeless within the meaning of McKinney-Vento and, therefore, are entitled to attend respondent’s schools.  Petitioner also maintains that P.M. is entitled to receive transportation. Respondent argues that petitioner and her children are not homeless within the meaning of McKinney-Vento.

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:
    1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
    2. living in motels, hotels, trailer
      parks or camping grounds due to the
      lack of alternative adequate
    3. abandoned in hospitals;
    4. awaiting foster care placement; or
    5. 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:
    1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
    2. 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 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 petitioner’s father-in-law outside respondent’s district since August 2007.  They have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  Moreover, while it is unfortunate that petitioner’s apartment was burglarized, she has not established that her family’s living arrangement with her father-in-law outside the district is temporary or transitional (Appeal of C.S., 47 Ed Dept Rep 254, Decision No. 15,686).  Other than her own statements, petitioner has provided no evidence that she has made any effort to locate an apartment or house within respondent’s district.  Rather, petitioner contends that she has been unable to secure housing within respondent’s district because she “lost a significant amount of money in the burglary that was to be put towards a new apartment.”  In addition, together with its verified answer, respondent produced a copy of an investigative report which indicates that the electricity for the East Rockaway address has been in petitioner’s husband’s name since July 2, 2007.  Petitioner has produced no evidence to the contrary.

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).  Based on the record before me, I find that petitioner has failed to meet her burden.  Accordingly, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.