Decision No. 17,312
Appeal of C.M., on behalf of her son S.M., from action of the Board of Education of the Island Park Union Free School District regarding residency and transportation.
Decision No. 17,312
(January 24, 2018)
Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Island Park Union Free School District (“respondent”) that her son (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §1431 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 petitioner’s in-district residence was damaged by Hurricane Sandy in October 2012. As a result of the damage sustained during the hurricane, petitioner and her son were forced to leave their home in November 2012 and they moved to a single family home located outside the district with petitioner’s parents.
The record further indicates that respondent considered the student homeless pursuant to McKinney-Vento and maintained his enrollment within, and transportation to, its schools.
Subsequently, by letter dated June 17, 2014, which was not included in the record on appeal, respondent’s superintendent apparently notified petitioner of her determination that petitioner’s son was no longer homeless and that consequently, transportation to and from the out-of-district residence would be terminated effective June 30, 2014.
According, to the record, subsequently, petitioner informed the superintendent that the June 17, 2014 letter did not contain certain “attachments” noted in the letter. By letter dated June 25, 2014, the superintendent provided petitioner with the forms required to appeal the determination to terminate the student’s bus service. The superintendent extended the termination date to July 3, 2014.
On June 25, 2014, petitioner requested that respondent provide the student with bus transportation for the 2014-2015 school year, which request was denied. This appeal ensued. Petitioner’s request for interim relief was denied on July 17, 2014.
Petitioner claims that she and the student are sharing the housing of other persons due to loss of housing, economic hardship, or similar reason, and are therefore homeless within the meaning of McKinney-Vento and entitled to transportation. Specifically, petitioner asserts that they continue to reside with her parents outside respondent’s district because they were forced to leave their in-district residence as a result of damage sustained from Hurricane Sandy. Petitioner states that they are staying with her parents while her in-district home is being repaired. Petitioner seeks a determination that her son is a homeless child entitled to transportation to respondent’s schools from the out-of-district residence.
Respondent maintains that neither petitioner nor her son are homeless within the meaning of McKinney-Vento and therefore not entitled to transportation. Respondent claims that petitioner and her son have been residing at the out-of-district address since November 2012, and that there is no evidence on the record that their living situation is inadequate.
At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals;
- awaiting foster care placement; or
- 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
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ...
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).
Here, petitioner has failed to meet her burden to show that the student is homeless under State or federal law. The record reflects that, at the time of this appeal, petitioner and the student were residing in her parents single family home. Petitioner submits no evidence, and fails to even allege, that this residence is not a fixed, regular night-time residence or is inadequate. Thus, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence (see Appeals of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).
Moreover, petitioner has not established that her residence is temporary or transitional under McKinney-Vento. The record indicates that, as of the date of commencement of this appeal on July 1, 2014, petitioner and the student had been residing outside the district’s geographic boundaries with petitioner’s parents since November 2012, a period of almost two years. There is no evidence that they needed to vacate this residence or that there was a fixed time limit as to how long they could remain (see Appeal of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).
Based on the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence or that her residence is temporary or transitional within the meaning of McKinney-Vento. Accordingly, I cannot find that respondent’s determination that the student is not homeless and, thus, not entitled to transportation under McKinney-Vento, is arbitrary or capricious.
Although the appeal must be dismissed, I note that petitioner retains 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.
THE APPEAL IS DISMISSED.
END OF FILE
 It appears that respondent permitted the student to continue to attend school in its district, although the record is unclear as to the basis therefor. Respondent may have considered petitioner and the student to be temporarily absent from the district. Nevertheless, because respondent no longer considered the student to be homeless pursuant to McKinney-Vento subsequent to June 17, 2014, it denied her request to transport the student for the 2014-2015 school year.
 Effective October 1, 2016, §11432(g)(3)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 U.S.C. §11432[g][E][i]). Because this appeal was commenced prior to October 1, 2016, this change is not relevant to this appeal.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 U.S.C. §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.