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Decision No. 16,935

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Sandy Creek Central School District regarding residency and transportation.

Decision No. 16,935

(July 28, 2016)

Hogan, Sarzynski, Lynch, DeWind, & Gregory, LLP, attorneys for respondent, Ed Sarzynski, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sandy Creek Central School District (“respondent”) that her child (“the student”) 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 tuition-free or receive transportation.  The appeal must be dismissed.

The record indicates that during the 2015-2016 school year, the student attended respondent’s schools as a district resident.  On or about April 12, 2016, petitioner made a request for transportation from an out-of-district residence indicating that she and the student were no longer living in the district and were now sharing the housing of other persons due to the loss of housing, economic hardship or a similar reason.

Petitioner asserts that she, her husband and the student are living in a two bedroom home with six additional children and a relative who owns the home.  The record indicates that of the seven children, the student is the only child who resides in the home full-time and that, based on a custody agreement, four of petitioner’s husband’s children reside in the home from Saturday until Tuesday, and reside with their mother at her in-district residence from Tuesday evenings to Saturday afternoon.  Petitioner’s other two children reside at the home only on weekends.

Petitioner asserts that this living arrangement is temporary until she and her husband can find a bigger home within the district.  Petitioner indicates that she and her husband are currently unemployed and cannot afford to move back into the district.  Petitioner also submits a statement from the relative with whom the family is living which asserts that the living arrangement is temporary following petitioner’s eviction from her previous in-district residence.

By letter dated April 20, 2016, respondent determined that the student was not homeless within the meaning of McKinney-Vento on the basis that there was no evidence that the student’s home was not fixed, adequate or regular, that petitioner was not sharing the housing of other persons, and that the living arrangement was not temporary.  The letter also stated that because the residence is more than 50 miles from the school, and the student has a disability, the travel distance of “over 1 hour (one-way)” is not in the student’s best interest.  This appeal ensued.  Because the record indicated that respondent permitted the student to continue to attend its schools for the remainder of the 2015-2016 school year and provided transportation, petitioner’s request for interim relief was determined to be moot. 

Petitioner asserts that the student is homeless within the meaning of McKinney-Vento and requests transportation to and from the out-of-district residence.  Petitioner seeks a determination that the student is homeless, is entitled to attend respondent’s schools tuition-free, and that respondent is obligated to transport the student to and from the out-of-district residence, which she claims is less than 50 miles from the student’s school.

Respondent maintains that petitioner has not established that the student lacks a fixed, regular, and adequate night-time residence and, therefore, the student is not homeless under McKinney-Vento.  Respondent also contends that petitioner and her family are not sharing the housing of other persons.  Respondent further asserts that, upon information and belief, on Wednesdays, Thursdays, and Fridays “only three children” are residing in the home.    

Education Law §3209(1)(a) defines “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 nighttime 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., 48 id. 348, Decision No. 15,882).

Based on the record before me, I find that petitioner has not established that the student meets the definition of a homeless child under State or federal law.  Petitioner does not allege or provide any evidence to explain how the residence is inadequate, and appears to argue merely that on certain days of the week additional children reside within the home. 

While petitioner claims that she is sharing the housing of others due to loss of housing, economic hardship or a similar reason, she makes only conclusory statements that she is facing economic hardship and does not produce any evidence to support such claims.  In any case, even if petitioner had provided such evidence, I note that proof of economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  Moreover, respondent submitted evidence indicating that, contrary to petitioner’s allegation, the owner of the out-of-district residence does not reside there with petitioner’s family as he received a STAR exemption in 2015 (which is only granted on a person’s primary residence) on another residence.  Petitioner submits no reply or other evidence to refute this. 

There is also no evidence in the record that petitioner’s residence is temporary or transitional.  Petitioner does not claim or demonstrate that her family must vacate the current residence or that there is a time limit as to how long they 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; Appeal of M.W., 46 id. 151, Decision No. 15,471). 

Based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence or that the student is living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Accordingly, I cannot find that respondent’s determination that the student is not homeless was 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 behalf of the student at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.