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Decision No. 16,641

Appeal of C.M., on behalf of his sons M.M. and M.M., from action of the Board of Education of the Gates–Chili Central School District regarding residency and transportation.

Decision No. 16,641

(August 7, 2014)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for respondent, Patrick M. McNelis, Esq., of counsel

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

According to the record, in March 2012, petitioner and his wife were evicted from their housing within the district and moved to petitioner’s parents’ home in Rochester, New York (“Rochester address”), outside the district.  Based on petitioner’s claim of homelessness, the district continued his sons’ enrollment in its schools for the remainder of the 2011–2012 school year and the entire 2012–2013 school year.  In early August 2013, respondent’s homeless liaison (“liaison”) conducted a review of petitioner’s homeless status.  His investigation revealed that petitioner had obtained a New York State identification card listing the Rochester address and that his voter registration also listed Rochester as his address.

Based on the results of the investigation and petitioner’s continued residence at the Rochester address for what was then a period in excess of sixteen months, the liaison determined that petitioner’s housing at that location was no longer temporary, but permanent.  By letter dated August 5, 2013, petitioner was notified of that determination.  Thereafter, on August 12, 2013, petitioner met with the liaison to discuss his residency/homeless status.  Following the meeting, the liaison provided all of the information to the district’s director of pupil services (“director”).

By letter dated August 21, 2013, the director notified petitioner of his final decision that his sons were not entitled to enrollment in, and/or transportation to, respondent’s schools as homeless children and would be excluded from school as of September 22, 2013.  The letter also informed petitioner of his right to appeal pursuant to Education Law §310.  This appeal ensued.  Petitioner’s request for interim relief was rendered moot by respondent’s determination to permit petitioner’s sons to continue attending its schools pending the outcome of this appeal.

Petitioner maintains that he was evicted from his in-district residence and that respondent provided no warning until August 22, 2013 that his sons would be excluded from district schools. Petitioner also seeks reimbursement for transportation.

Respondent contends that petitioner’s residence in Rochester is no longer temporary or transitional and therefore, he and his sons are not homeless within the meaning of McKinney – Vento.  Respondent asserts that, consequently, his sons are not entitled to attend school in its district.  Finally, respondent contends that petitioner has not established any entitlement to transportation reimbursement.

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;


(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 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 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).

     On the record before me, I find that petitioner’s sons do not meet the definition of homeless children under either State or federal law.  According to the record, since March 2012, petitioner and his sons have lived at the Rochester address outside the district.  Petitioner provides no documentation to establish that such residence is inadequate, and thus has failed to meet his burden of proving that petitioner and his sons lack a fixed, regular night-time residence.  While it is unfortunate that petitioner and his sons had to leave their in-district residence, there is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209.  Thus, petitioner has failed to demonstrate that his sons lack a fixed, regular and adequate night-time residence and are homeless (see Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeals of P.R., 48 id. 24, Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision No. 15,620).

     Additionally, petitioner makes no assertion that his current residence in Rochester is of a temporary or transitional nature.  The record shows that, at the time this appeal was commenced, petitioner and his sons had been living at the Rochester residence for over 19 months.  In addition, there is no evidence that petitioner needs to vacate his current residence or that there is a time limit as to how long he and his sons can reside there (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of J.U., 50 id., Decision No. 16,095).  Accordingly, based on the record before me, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious. 

I also find that respondent provided petitioner an adequate opportunity to address his homeless status and sufficient notice of its final determination. 

With respect to his request for transportation reimbursement, other than his conclusory demand, the petition is devoid of any factual or legal basis for such relief.  In any event, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).