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Decision No. 16,235

Appeal of T.C., on behalf of her children T.C. and E.C., from action of the Board of Education of the Eastport-South Manor Central School District regarding residency and transportation.

Decision No. 16,235

(June 3, 2011)

Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastport-South Manor Central School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431, etseq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioner explains that she and her children are staying with a friend (“the friend”) outside respondent’s district due to “[l]oss of income, divorce, [and] emotional disturbance of [one of her children] causing [petitioner] to seek out under-employment.”

The record indicates that, in October 2010, petitioner’s children attended school in respondent’s district as homeless students.  In an affidavit, respondent’s assistant superintendent for personnel (“assistant superintendent”) explains that on October 5, 2010, a district employee visited petitioner’s residence and found that it was “fixed, adequate, and permanent and did not otherwise meet the definition of ‘homeless’ as Petitioner had previously represented.”

By letter dated October 15, 2010, respondent’s district clerk informed petitioner that questions had arisen regarding her children’s eligibility to continue attending the district’s schools as homeless students and that a meeting was scheduled for October 26, 2010.  At petitioner’s request, the meeting was rescheduled to December 1, 2010.

According to the assistant superintendent, at the December 1, 2010 meeting, petitioner stated that she and her children resided with a friend outside respondent’s district but failed to submit any documentation to support her claim that she was homeless.  By letter dated December 14, 2010, the assistant superintendent informed petitioner of the district’s determination that her children were not homeless and would be excluded from its schools “pursuant to law.”[1] This appeal ensued.  Petitioner’s request for interim relief was denied on January 21, 2011.

Petitioner contends that her children are homeless within the meaning of McKinney-Vento because they are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  Respondent argues that petitioner’s children are not homeless within the meaning of McKinney-Vento and that the petition fails to state a claim upon which relief may be granted.

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:

  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

2. 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 ....[2]

Section 100.2(x) of the Commissioner’s regulations also conforms to the definition of “homeless children and youths” in McKinney-Vento.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on the record before me, I find that petitioner’s children do not meet the definition of homeless children under either State or federal law.  Petitioner argues that she is homeless because she and her children are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  However, aside from her conclusory assertions that she became homeless due to loss of income, divorce, and her son’s emotional disturbance, petitioner has produced no evidence to support this claim.  There is no indication in the record of when the circumstances arose that petitioner alleges resulted in homelessness.

Moreover, petitioner has produced no evidence that she and her children lack a fixed, regular and adequate night-time residence or are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  Indeed, as noted above, the assistant superintendent explains that an October 2010 home visit by a district employee revealed that petitioner’s living situation is “fixed, adequate, and permanent...” and petitioner submits no reply or other evidence to refute this claim.

Petitioner also appears to argue that her living arrangement is temporary, claiming that she is “not paying to be there, and as of today [we] have nowhere to go at the end of” February 2011.  To support her claim, petitioner has submitted an unsworn letter from the friend dated December 1, 2010 in which he states that he is “letting [petitioner] and her three children live in my home....  They have been here since February [2010] and are staying rent free until March [2011].”  Contrary to petitioner’s assertions, however, the letter does not indicate that petitioner will no longer be able to live in the friend’s home after February 2011.  Rather, as respondent notes, the letter states only that petitioner will be “staying rent free until March [2011].”  Other than her own conclusory assertions, petitioner has submitted no reply or other evidence to explain the friend’s statement or to prove that, because of economic hardship, she has been or will be forced to relocate. 

Based on the record before me, petitioner has failed to meet her burden of proving that her children are homeless under State or federal law.  Accordingly, I cannot find that respondent’s determination that petitioner’s children are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on her children’s behalf at any time, particularly if her living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.



[1] The letter stated that respondent would “temporarily accept the enrollment of [petitioner’s children] and they shall continue to be enrolled” in respondent’s schools as required by law.  Specifically, the letter explained that, should petitioner appeal respondent’s determination, the district would “delay for 30 days” its decision to decline to enroll and transport her children.  Moreover, “should [her] appeal include a stay application, [the children] shall be permitted to continue attending the schools in which they are enrolled at the time of the appeal until the Commissioner renders a decision on the stay application.”

[2] At all times relevant to this appeal, the definition set forth in §3209(1)(a), as amended by Chapter 101 of the Laws of 2003, has been continuously effective.  Specifically, Chapter 2 of the Laws of 2011 extends the provisions of Chapter 101 of the Laws of 2003 until June 30, 2011 and is effective retroactively to June 30, 2010.