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Decision No. 17,557

Appeal of T.H., on behalf of her son, B.M., from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and transportation.

Decision No. 17,557

(December 20, 2018)

Guercio and Guercio LLP, attorneys for respondent, Kelly A. Reape, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) that her son (the “student”) is not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The record reflects that prior to September 30, 2016, the student attended respondent’s schools as a resident student.  On or about September 30, 2016, petitioner submitted a Homeless Designation Form and notified respondent that her family had become homeless and were temporarily residing at an address outside respondent’s geographical boundaries in East Patchogue, New York (“out-of-district residence”), effective October 1, 2016.  Respondent permitted the student to continue attending its schools as a homeless student pursuant to McKinney-Vento for the 2016-2017 and 2017-2018 school years.

By letters dated June 11, 2018 and July 11, 2018, petitioner was asked to provide updated housing information to permit the district to determine whether the student continued to be homeless pursuant to McKinney-Vento.

By letter dated July 24, 2018, respondent’s director of pupil services (“director”) informed petitioner of her determination that she and the student were neither permanent residents of the district nor homeless.  The director based this determination on petitioner’s failure to respond to the June 18 and July 11, 2018 letters and the fact that petitioner’s family had resided at the out-of-district residence, which she concluded was fixed, regular and adequate, since September 30, 2016.  The director indicated that the student would be excluded from respondent’s schools effective August 23, 2018.

Shortly thereafter, respondent received a “Housing Questionnaire 2018” from petitioner in response to its June 18 and July 11, 2018 letters.  The questionnaire indicates that the student is currently living “with another family because of loss of housing as a result of economic hardship.”  This appeal ensued.

Petitioner alleges that she and the student are homeless as defined by McKinney-Vento.  She maintains that she is a “single parent of 4 children” and is “not able to pay/afford at this time to pay for an apartment/house.”  Petitioner submits documents including invoices which reflect she owes a balance and a settlement agreement indicating she owes money to an entity, reflecting economic hardship.  Petitioner further alleges that she is “looking for housing to rent/buy” and that she has reached out to various organizations that provide affordable housing.

Respondent contends that the petition fails to set forth a clear and concise statement of petitioner’s claim or demonstrate a clear legal right to the relief requested.  Respondent also contends that petitioner and the student are not homeless within the meaning of McKinney-Vento.

Education Law §3209(1)(a) defines “homeless child” as:

  1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
  1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
  2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
  3. abandoned in hospitals; or
  4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
  5. an unaccompanied youth ...; or
  1. a child or youth who has a primary nighttime location that is:
  1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
  2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[1]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, the student does not meet the definition of a homeless child under either State or federal law.  The record reflects that, other than for a two week period in August 2017, the student resided with petitioner at the out-of-district residence since September 30, 2016.  While the petitioner makes a conclusory allegation in the petition that she and the student lack a fixed, regular and adequate nighttime residence, she has provided no evidence that her housing is inadequate.  Petitioner does provide pictures of what appears to be the interior  of the house.  The pictures show bunk beds, various storage shelves, a closet used for storage, a well appointed dining table, a television area and a garage also used for storage.  Petitioner has provided no explanation of why the arrangement evidenced by these pictures is inadequate.

Respondent asserts that according to an internet search petitioner’s out-of-district residence has three bedrooms and one bathroom.  Petitioner did not submit a reply or any evidence to rebut this assertion or to explain how the living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,744).  Thus, petitioner has failed to demonstrate that the student lacks a fixed, regular nighttime residence or that his living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209 (see Appeal of R.D., 56 Ed Dept Rep, Decision No. 16,945; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of T.C., id., Decision No. 16,502; Appeal of a student with a disability, 52 id., Decision No. 16,404).

Nor has petitioner established that her current residence is temporary or transitional.  To the extent that petitioner asserts that she is looking for affordable housing in the district and implies that she and the student intend to move back to the district at some point, this does not establish that their current residence is temporary or transitional within the meaning of Education Law §3209 (Appeal of E.R., 53 Ed Dept Rep, Decision No. 16,560; Appeal of E.M.F., 53 id., Decision No. 16,538; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).  Petitioner and the student have been living in the out-of-district residence since September 30, 2016 and there is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she and the student can reside there (Appeal of R.T.-G., 56 Ed Dept Rep, Decision No. 16,942; Appeals of L.B., 50 id., Decision No. 16,129).  Therefore, on this record, petitioner has not met her burden of proof on this issue.

Moreover, while the record contains evidence that petitioner may be having financial problems and has sought various forms of assistance, such evidence by itself does not establish that she is homeless under State or federal law.  While it is unfortunate that petitioner’s financial situation is unstable and that may impact her ability to pay rent or locate housing within respondent’s district, this does not constitute homelessness.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221; see Appeal of E.B., 47 id. 94, Decision No. 15,638; Appeal of S.D., 46 id. 116, Decision No. 15,459).

Based upon the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular and adequate nighttime residence or that they are 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 petitioner and the student are not homeless to be 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 the student’s behalf at any time should their circumstances change and to submit any documentary evidence for respondent’s consideration.




[1] Education Law §3209(1)(a-1)excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.