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Decision No. 15,912

Appeal of K.W., on behalf of her son S.W., from action of the Board of Education of the Kenmore-Tonawanda Union Free School District regarding residency and transportation.

Decision No. 15,912

(May 5, 2009)

Harris Beach, PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel

Mills, Commissioner.--Petitioner appeals the determination of the Board of Education of the Kenmore-Tonawanda Union Free School District (“respondent”) that her son, S.W., 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 attend the district’s schools or to receive transportation.  The appeal must be dismissed.

In July 2006, foreclosure proceedings were commenced on petitioner’s residence in respondent’s district.  When an “order to vacate the premises” was issued in May 2007, petitioner and her children moved into their current out-of-district residence, a “2-bedroom upper apartment” in a friend’s home.

According to respondent’s homeless liaison (“liaison”), in August 2007 she received information that petitioner and her family had been evicted from their in-district residence and were living outside respondent’s district “doubled up” with a friend.  S.W. and his sister were thus permitted to attend tenth and fourth grade, respectively, as homeless students in respondent’s schools during the 2007-2008 school year.

On September 3, 2008, petitioner sought to enroll S.W. in eleventh grade at respondent’s high school.[1]

This request was denied on or about September 4, 2008.  By letter dated September 22, 2008, respondent provided petitioner with written notice of its determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 6, 2008. 

Petitioner contends that S.W. is homeless within the meaning of McKinney-Vento and, therefore, is entitled to continue his enrollment in respondent’s district. 

Respondent asserts that the appeal must be dismissed as untimely.  Respondent also contends that S.W. is not homeless within the meaning of McKinney-Vento and Education Law §3209.

Respondent argues that the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Respondent claims that the appeal is untimely because it was commenced more than 30 days after its September 4, 2008 decision.  However, pursuant to §100.2(x)(7)(ii)(b) of the Commissioner’s regulations, when a school district declines to either enroll and/or transport a homeless student, it must provide written notice to the student’s parent or guardian.  In this case, while the record indicates that respondent sent written notice of its determination to petitioner on September 22, 2008, the record is unclear as to when petitioner actually received the notice.[2]  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be September 27, 2008.  Petitioner thus had to commence her appeal on or before October 27, 2008, which she did.  Consequently, I will not dismiss the appeal as untimely.  

Turning to the merits, Education Law §3209(1)(a) 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 ... 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 ...; 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.

S.W. does not fit the definition of a homeless child under either State or federal law.  Petitioner claims that S.W. is homeless because he is “part of a 4-person household sharing a 2-bedroom upper apartment.”  Petitioner explains that she “occup[ies] one bedroom and [S.W.’s] 2 sisters occupy the other.  [S.W.] is able to keep his personal items in the living room walk-in closet.  [S.W.] sleeps in the living room.”  The record indicates that petitioner and her family have lived in this apartment for nearly two years.  Under these circumstances, S.W. has a fixed, regular nighttime residence and there is insufficient evidence on the record that such residence is inadequate.

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Together with her verified petition, petitioner submitted a letter from a family friend dated October 21, 2008 stating:

When I found out about the unfortunate foreclosure of [K.W.’s] home, in order to assist them, I offered the vacant upper unit of my house at no cost or obligation to [K.W.] and the children for a place to stay.  [K.W.] insisted this would only be a temporary situation, until she was able to afford housing back in [respondent’s district].

After a few months, when some financial stability was established, I asked for a low, affordable fee for the accommodations to help with my own housing fees and costs.  Should they find a more suitable home, in the event I sell my house, or that I may lease to a regular tenant, no notices are required.  To this date we have maintained this agreement.

The letter indicates that petitioner lacks a fixed lease for the apartment and intended this arrangement to be temporary.  However, this arrangement has continued for nearly two years and there is no evidence that the friend has any plans to sell his house or “lease to a regular tenant,” thus forcing K.W. to relocate.  Moreover, the letter indicates that petitioner now pays a “fee” for the apartment.

Based on the record before me, petitioner has not established that S.W. is sharing the housing of other persons due to loss of housing, economic hardship or similar reason.  While the record indicates that petitioner and her children were evicted from their home due to economic hardship, they have since been living in their own apartment – a separate unit in a friend’s home – and therefore do not “share” their housing with others.  Accordingly, based on the record before me, I find respondent’s determination to be reasonable.


[1]The record indicates that petitioner’s daughter continues to attend fifth grade in respondent’s district because this is “her terminal year” at the elementary school “pursuant to Education Law §3209(2)(b)(1) and Commissioner’s Regulations ... 8 NYCRR §100.2(x)(2)(ii).”

[2]In her affidavit, the liaison states that she and petitioner met on September 25, 2008 “to begin the appeal process.”  The liaison explains that petitioner “had received notice that the September 22, 2008 letter was at the post office waiting to be picked up” and that petitioner “finally picked up the forms on October 7, 2008.”