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Decision No. 15,963

Appeal of a STUDENT WITH A DISABILITY, by his mother, from action of the Board of Education of the Lewiston-Porter Central School District regarding residency and transportation.

Decision No. 15,963

(August 12, 2009)

Norton/Radin/Hoover/Freedman and Webster Szanyi LLP, attorneys for respondent, Andrew J. Freedman and Ryan G. Smith, Esqs., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Lewiston-Porter Central School District (“respondent”) that her son is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioner and the student’s father separated in January 2008.  Thereafter, the student resided with his father within respondent’s district.  During this time, the student was enrolled in respondent’s schools and, pursuant to his individualized education program (“IEP”), attended Niagara Academy, an alternative school at the Orleans-Niagara Board of Cooperative Educational Services (“BOCES”).  Since the separation, petitioner has lived at her parents’ residence within the City School District of the City of Niagara Falls (“Niagara Falls”).

The student’s father died on or about November 14, 2008.  Thereafter, the student continued to reside in respondent’s district, first with his father’s girlfriend and then with a friend’s family.  The record indicates that since February 2009, the student has resided with his mother and grandparents in Niagara Falls.

Petitioner asserts that on or about February 24, 2009, she enrolled the student in Niagara Falls as a homeless student and requested that he be permitted to continue his educational program in respondent’s district.[1]  Respondent, however, contends that petitioner designated the student as homeless after he began attending classes at Niagara Falls “because [he] did not like and refused to continue attending school there, and because Niagara Falls ... would not send [the student] to Niagara Academy ... which is where both [the student] and petitioner wanted [the student] to attend.”

On or about March 2, 2009, petitioner enrolled the student in respondent’s district as a homeless student.  Respondent immediately enrolled the student and, by letter dated March 24, 2009, respondent’s superintendent requested verification of the student’s homelessness by April 3, 2009.

In an April 22, 2009 letter, the superintendent noted that petitioner had failed to submit the information requested in his March 24, 2009 letter and advised petitioner of his determination that the student was not homeless and would be excluded from respondent’s schools as of May 22, 2009.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 21, 2009.

Petitioner contends that the student is homeless within the meaning of McKinney-Vento and, therefore, is entitled to attend respondent’s schools.  Respondent argues that petitioner has not carried her burden of establishing that the student is 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 accommodations;
    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
  1. a child or youth who has a primary nighttime 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 ....

Initially, I must address respondent’s student residency policy, which contains the following section regarding homeless children:

As defined by the Regulations of the Commissioner, “a homeless child is one who is entitled to attend school in the State of New York who, because of the unavailability of permanent housing, is living in a hotel, motel, shelter or other temporary living arrangement in a situation in which the child or his or her family is receiving assistance and/or services from a local social services [d]istrict...”

The definition of a “homeless child” used in respondent’s policy is outdated and does not reflect the current definition in Education Law §3209(1)(a), as amended by Chapter 569 of the Laws of 1994 and Chapter 101 of the Laws of 2003, which conforms to the definition of “homeless children and youths” in McKinney-Vento.  As a result, respondent’s policy is contrary to the current definition of homelessness as set forth in federal and State law, as well as in §100.2(x)(1)(i) of the Commissioner’s regulations.  Although, as explained below, the language in respondent’s policy does not affect the outcome of the instant appeal, respondent should immediately review and revise its policy consistent with McKinney-Vento, Education Law §3209(1)(a) and §100.2(x)(1)(i) of the Commissioner’s regulations.

Turning to the merits, 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).  Based on the record before me, I find that petitioner has failed to meet her burden of proving that the student fits the definition of a homeless child under either State or federal law. 

The record indicates that petitioner has been residing with her parents since January 2008 and the student returned to live with his mother and grandparents in February 2009.  The record contains no evidence that this living arrangement is temporary or transitional or that such residence is inadequate.  Indeed, the only documentation submitted with the petition is a copy of respondent’s April 22, 2009 determination letter.  Further, the record contains a copy of petitioner’s driver’s license, which was issued on January 18, 2008 and lists Niagara Falls as her address. Moreover, while petitioner alleges that she resides with her parents because she is unable to work, receiving workers’ compensation benefits and experiencing “economic hardship,” she has submitted no evidence to substantiate these claims and admits that this living arrangement has continued since January 2008.  Thus, petitioner has failed to demonstrate that her son lacks a fixed, regular and adequate night-time residence and is homeless (seeAppeals of P.R., 48 Ed Dept Rep 24, Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision No. 15,620, Appeal of L.F., 47 id. 39, Decision No. 15,617).

In its memorandum of law, respondent’s attorney contends that the language set forth in Education Law §3209(1)(a)(1)(i)-(v) constitutes the “former” definition of a homeless child.[2]  However, at all times relevant to this appeal, the definition set forth in §3209(1)(a)(1)(i)–(v), as amended by Chapter 101 of the Laws of 2003, has been continuously effective.  I direct respondent’s attention to Chapter 158 of the Laws of 2009, which extends the provisions of Chapter 101 of the Laws of 2003 until June 30, 2010 and is effective retroactively to June 30, 2009.

Despite this misstatement of the law, respondent’s determination in this case nevertheless included an analysis of whether the student is sharing the housing of others due to economic hardship or a similar reason.  In its memorandum of law, respondent contends that petitioner and the student “have a fixed, regular nighttime residence and there is no evidence that their residence is inadequate.”  Respondent also asserts:

[T]he only “other persons” whom [sic] [the student] allegedly shares a residence with are his mother ... and grandparents .... Also, insofar as Petitioner claims to be sharing the housing of other persons due to economic hardship, she has failed to proffer any evidence in support of this claim other than her own statements ....

Because the record before me indicates that respondent performed the relevant analysis for determining whether the student is homeless, I conclude that respondent’s misstatement of the law did not affect the outcome of this appeal.      Accordingly, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.



[1] Respondent submits a copy of a “Change of Student Status” form dated February 25, 2009, indicating that as of February 24, 2009 respondent changed the student’s enrollment status to “Withdrawal – Moved out of District.”

[2] Specifically, in an affidavit in opposition to petitioner’s request for interim relief, respondent’s attorney states:  “Although the previous definition (which contains references to potential homeless situations) is effective through June 30, 2009, it is clear that the legislature is focusing the homelessness inquiry on whether the child ‘lacks a fixed, regular and adequate nighttime residence,’ rather than diverting the focus to whether a child may fall under one of the potential homeless situations provided in the pre-amendment version of section 3209(a)(1).”