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Decision No. 16,608

Appeal of S.D. , on behalf of her daughter A.D, from action of the Board of Education of the City School District of the City of Norwich regarding residency and transportation.

Decision No. 16,608

(April 16, 2014)

Hogan, Sarzynski, Lynch, DeWind & Gregor y, LLP, attorneys for respondent, John P. Lynch , Esq., of counsel

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

The record indicates that , prior to the commencement of the 2013 - 2014 school year, petitioner and her husband resided within the district and A.D. attended the district’s schools as a resident student. At some point, petitioner and her husband lost their in - district home due to economic hardship and they moved into petitioner’s in - law’s home also within the district. Subsequently, petitioner and A.D. moved to her parents’ out - of - district residence in Oxford, New York. Petitioner claims that she has been forced to remain at the Oxford residence due to her ill health.

On September 16, 2013, petitioner submitted to the district the “Designation of School District Attendance for a Homeless Child ” form. By letter dated October 2, 2013, the district’s homeless liaison (“liaison”) notified petitioner of the district’s determination that A.D. was not a homeless child and would be excluded from the district ’s schools effective November 2, 2013. By letter dated October 9, 2013, the liaison provided petitioner with a copy of the form petition used to file a homeless appeal with the Commissioner of Education. This appeal ensued. Petitioner’s request for interim relief was denied on December 2, 2013.

Petitioner claims that she and A.D. are homeless within the meanin g of McKinney - Vento. Petitioner asserts 2 that they reside with her parents outside respondent’s school district because they were forced to leave their in - district residence due to economic hardship. Petitioner maintains that her living situation is tempo rary and that her parents’ home is cramped and, therefore, inadequate. Petitioner states that A.D. has been through a difficult time and that she is doing all that she can to keep A.D. in school with her friends. Petitioner also alleges that A.D.’s right s under the federal Family Educational Rights and Privacy Act (“FERPA”) have been violated.

Respondent argues that the appeal is untimely and that petitioner has failed to state a claim upon which relief may be granted. Respondent maintains that A.D. is n ot homeless within the meaning of McKinney - Vento.

I must first address the procedural issues. By facsimile transmission from the liaison dated December 23, 2013, petitioner requested that I consider additional documentation in support of her appeal. The documentation consists of handwritten letters from petitioner and her parents. The liaison submitted an affidavit of service indicating that, on January 9, 2014, she served the letters upon respondent’s attorney by mail. Respondent does not object to thi s submission. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add n ew claims against a respondent for which notice has not been provided ( Appeals of Gonzalez , 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al. , 48 id . 193, Decision No. 15,833). Accordingly, I have considered petitioner’s submission to t he extent that it does not raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal ( Appeals of Gonzalez , 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al. , 48 id . 193, Decision No. 15,833).

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 Lippolt , 4 8 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams , 48 id . 343, Decision No. 15,879) . The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination ( Appeal of C.S. , 48 Ed Dept Rep 497, D ecision No. 15,929; Appeal of M.H. and E.H. , 47 id . 274, Decision No. 15,694). When the record does not indicate when 3 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 K.W. , 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn - Bruning , 48 id . 325, Decision No. 15,872). Respondent contends that the appeal is untimely because it was commenced on November 7, 2013, more than 30 days after its October 2, 2013 decision. However, petitioner asserts that she did not receive respondent’s October 2, 2013 letter until October 15, 2013. To support her claim, petitioner submits a copy of the certified mail envelope in which the lett er was received, which is postmarked October 4, 2013, and of what appears to be the return receipt card, which is stamped Oxford, New York, October 16, 2013. Respondent has submitted no evidence to refute petitioner’s assertion. Accordingly, regardless o f whether the 30 - day period is calculated from October 15 or by using the usual five days for mailing (excluding Sundays and holidays), the appeal was timely commenced within 30 days of petitioner’s receipt of respondent’s October 2, 2013 determination.

I also note that where a district disputes that a student is homeless, as in this case, 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 dispute resolution 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 must also state that the determination may be appealed to the Commissioner of Education and must 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]). The record contains no evidence that respondent provide d petitioner with a form petitio n , as required by the regulations, until it mailed a copy to petitioner with its October 9, 2013 letter . Therefore, for this additional reason, I would not decline to dismiss the appeal as untimely.

Turning to the merits, Education Law § 3209(1)(a) define s a homeless child as:

(1) a child or youth who lacks a fixed, regular, and adequate night - time 4 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 o r private place not designed for, or ordinarily used as, a regular sleeping accom - modation 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 McKinne y - Vento.

A.D. does not fit the definition of a homeless child under either State or federal law. Petitioner claims that she and A.D. are homeless because they are sharing a three - bedroom house with her parents due to the loss of housing, economic hardshi p or a similar reason . Petitioner explains that both she and A.D. have their own room, but that these rooms are cramped with all their belongings . She also explains that , to give them more room, her sister moved out of the residence and her son lives wit h his father during the week.

While t he record is not entirely clear , it appears that petitioner and A.D. have been residing at the Oxford residence since at least the summer of 2013. Under these circumstances, A.D. has a fixed, regular nighttime residence and there is insufficient evidence on the record that such residence is inadequate.

Additionally, petitioner has not established that her current residence is temporary or transitional. The petition contains conclusory statements by petitioner that he r living arrangement is temporary and that she is trying to find housing in respondent’s district. Petitioner and her parents submit letters explaining that petitioner’s parents may lose their home due to tax foreclosure and that the home is currently for sale. However, petitioner has not established that the loss of petitioner’s current housing is imminent or that there is a time limit as to how long she and A.D. can reside there ( see Appeal of A.W. , 53 Ed Dept Rep, Decision No. 16559) . 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. 15,9 36; Appeal of Hansen , 48 id . 354, Decision No. 15,884; Appeal of P.M. , 48 id . 348, Decision No. 15,882 ). While it is unfortunate that petitioner has experienced health and financial issues, u nder these circumstances, I find respondent’s determination – th at petitoner’s daughter is not homeless – to be reasonable.

Finally, I note that the Commissioner lacks jurisdiction to consider FERPA claims. The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Application of T.D. , 41 Ed Dept Rep 157, Decision N o . 14,646; Appeal of a Student Suspected of Having a Disability , 40 id . 75, Decision No. 14,425; Appeal of Tucker , 39 id . 824, Decision No. 14,393).