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Decision No. 16,557


 Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Elwood Union Free School District regarding residency and transportation.

Decision No. 16,557

(September 30, 2013)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M.Block, Esq., of counsel

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

Prior to the 2012-2013 school year, petitioner’s son, who is a student with a disability, resided in the district with his father and paternal grandparents and attended respondent’s high school. However, at the beginning of the2012-2013 school year, respondent’s assistant superintendent for business/homeless liaison (“assistant superintendent”) learned that petitioner’s son was residing in an apartment with her in Islip, New York, outside the district. Subsequently, petitioner claimed that her son was homeless because she was unsure how long he will reside with her before returning to his father’s and grandparents’ residence.

By letter dated October 9, 2012, the assistant superintendent advised petitioner that a determination had been made that her son was “not entitled to enrollment in and/or transportation to” the district’s schools because he no longer resided in the district. However, the letter did not address petitioner’s assertions that her son is homeless. This appeal ensued. Petitioner’s request for interim relief was denied on November 27, 2012.

Petitioner contends that her son is homeless within the meaning of McKinney-Vento because he is sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. Petitioner further alleges that she and her son share her apartment with two other

individuals. Petitioner also submits a note, dated October 3, 2012, from her son’s doctor stating that he is treating him for attention deficit hyperactivity disorder and anxiety. This note further states that the student “would benefit from continuing education with avoidance of undue changes, which may exacerbate his anxiety.”

Respondent argues that the student is not homeless within the meaning of McKinney-Vento.

Subsequent to the commencement of this appeal, on or about December 14, 2012, my Office of Counsel received a letter from respondent’s attorney stating that, despite the district’s determination that petitioner’s son was not homeless, the district had determined to allow petitioner’s son to continue to attend the district’s schools, pursuant to Board Policy 5152. The letter further advised that this policy permits non-resident 12th grade students, like petitioner’s son, to continue their enrollment on a tuition-free basis if they completed 11th grade in the district, which petitioner’s son did. However, according to the letter, in such instances, transportation is not provided and is, instead, the sole responsibility of the non-resident student’s parent/guardian.

In addition, the letter stated that, by letter dated November 29, 2012, respondent’s counsel advised petitioner of this aforementioned policy and requested that petitioner inform the district whether her son would continue his enrollment in its schools pursuant to this policy or would withdraw from them. The letter further asserted that, due to petitioner’s failure to respond to this request for information, her son continues to be enrolled in the district’s schools despite the fact that he is not currently attending them.

By letter dated December 17, 2012, as per my Office of Counsel’s directive, pursuant to 8 NYCRR §276.5, respondent submitted an affidavit from its counsel verifying all of the aforementioned information, along with an appropriate affidavit of service.

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 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 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.

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., 48id. 348, Decision No. 15,882).

On the record before me, I find that the student does not meet the definition of a homeless child under either State or federal law. Petitioner submits no evidence that she or her son’s father, who she alleges to be the custodial parent, lacks a fixed, regular and adequate night-time residence or that either one of them is living in the kind of shelter or other accommodation described in Education Law §3209(1)(a). In fact, on the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth,” petitioner answered “No” to the question “Are the child’s/youth’s parent(s) or legal guardians homeless?” (Appeal of C.K., 50 Ed Dept Rep, Decision No. 16,138).

In addition, petitioner has not established that her son is sharing the housing of other persons due to loss of housing, economic hardship or other similar reasons rather than a preference to live with her, instead of his father and grandparents (Appeal of a Student with a Disability, 44Ed Dept Rep 94, Decision No. 15,108).

Moreover, the fact that petitioner’s son may decide, at some point, to leave petitioner’s residence and return to his father’s and grandparents’ residence, within the district, does not establish that his current living arrangements are temporary or transitional within the meaning of McKinney-Vento and Education Law §3209. There is also no evidence that petitioner’s son needs to leave her residence or that there is a time limit on how long he can reside with her. Accordingly, based on the record before me, I cannot find respondent’s determination that the student is not homeless to be arbitrary and capricious.

Although the appeal must be dismissed for the reasons set forth above, I am compelled to comment on respondent’s failure to comply with certain requirements of 8 NYCRR§100.2(x)(7). If, as in this case, a district disputes that a student is homeless, it must follow the dispute resolution procedures established in Commissioner’s regulations, including providing the student and/or the student’s parents an opportunity to submit information before making a final determination (8 NYCRR §100.2[x][7][ii][a]). At the conclusion of this disputer solution process, if the district determines that a student is not homeless, it must provide written notice that the student is not entitled to attend its schools and the basis for the determination (8 NYCRR §100.2[x][7][ii][b]). The notice also must state that the determination may be appealed to the Commissioner of Education and contain the name and contact information for the school district’s homeless liaison, who is required to assist in filing such an appeal, along with a form petition(8 NYCRR §§100.2[x][7][ii][b], [iii][c][1] and [2]).

In this case, the assistant superintendent’s October9, 2012 letter to petitioner failed to specifically state that respondent had determined that her son was not a homeless child or youth within the meaning of McKinney-Vento. The letter merely stated that petitioner’s son was not entitled to enrollment in and/or transportation to the district’s schools because he was no longer a district resident due to the fact the he was residing with petitioner outside of it. Moreover, there is no indication 4

in the record that petitioner was affirmatively afforded an opportunity to present information regarding her claim that her son is homeless. I remind respondent of the importance of ensuring that the educational needs of this vulnerable population are met and I admonish respondent to ensure that all such students are properly served in accordance with the State and federal requirements designed to protect their educational welfare.

While the petition only claims a right to attend respondent’s schools based on alleged homelessness and the appeal therefore must be dismissed for the reasons set forth above, I note that petitioner has the right to reapply for admission to respondent’s schools on her son’s behalf at any time based on residency or homelessness, particularly if his living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.