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Decision No. 17,675

Appeal of D.S., on behalf of her children C.D. and D.D., from action of the Board of Education of the City School District of the City of Glens Falls regarding residency and transportation.

Decision No. 17,675

(July 1, 2019)

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Karla Williams Buettner, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Glens Falls (“respondent”) that her children C.D. and D.D. (“the students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Although the record in this appeal is sparse, it reflects that the students attended respondent’s schools prior to the events described in this appeal.  By letter dated September 19, 2018, respondent’s school district official (“official”) informed petitioner of her determination that the students were neither district residents nor homeless and that her decision would be effective October 19, 2018.  This appeal ensued.

Petitioner claims that she and the students 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.  Petitioner asserts that she and the students are, subject to a custody order between petitioner and the students’ father, temporarily residing at petitioner’s eldest son’s residence.  The custody order, according to petitioner, provides that the students live with petitioner on Monday, Tuesday, Thursday, and weekends.  Petitioner also states that the students “are still on [her] food stamp case [and] the county knows [they] are homeless.”  Petitioner seeks a determination that the students are homeless within the meaning of McKinney-Vento and, thus, entitled to attend respondent’s schools tuition-free.[1]

Respondent did not submit a timely answer in this appeal, but requests permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations.  A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).

Respondent’s superintendent explains that respondent served the answer twenty-nine days late because, while this appeal was pending, the district was in communication with the students’ father concerning the students’ residency and the superintendent “inadvertently forgot” to “file the appeal with the Commissioner and did not provide a copy to the District’s counsel.”[2]  Respondent further contends that the late answer should be accepted because the students remained enrolled in its schools pursuant to the automatic stay provisions of McKinney-Vento and State law and, thus, suffered no prejudice as a result of the delay (see 42 USC §11432[g][3][E]; Education Law §3209[5][c]).  I decline to deem respondent’s error a valid excuse for the late answer (see Appeal of Brarens, et al., 51 Ed Dept Rep, Decision No. 16,317).  While I recognize that where, as here, a dispute arises surrounding the students’ McKinney-Vento eligibility, the students are entitled to immediate enrollment in respondent’s district pending final resolution of the dispute, including all available appeals, I find that respondent has not established a sufficient excuse for its late answer on this record.  Accordingly, I find no basis to accept the late answer and the factual allegations set forth in the petition shall be deemed true (8 NYCRR §275.11; see Appeal of Pierre, 47 Ed Dept Rep 513, Decision No. 15,768; Appeal of Raines, 45 id. 21, Decision No. 15,246). 

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 ....[3]

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).

Here, petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  In the petition, petitioner merely indicates in a conclusory manner that she “is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner, however, does not provide any details about the adequacy of the living conditions (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  The mere assertion that petitioner and the students are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).

Petitioner also states that she is temporarily sharing custody of the students with the students’ father, that the “[b]oys are with [her] Monday, Tuesday, Thursday and weekends,” and that she the students are “stay[ing] temporarily with [her] eldest son ... until [they] can find a new place.”  In this regard, petitioner provides no additional information regarding the shared custody agreement or where the students stay during those days when the students’ father has custody of the students.  Thus, on this record, petitioner has failed to meet her burden of proving that the students’ residence is inadequate.

Petitioner further asserts that she is experiencing financial hardship and that she receives governmental benefits on the students’ behalf.  In this respect, petitioner attaches a determination from a county department of social services concerning supplemental nutrition assistance benefits.  While it is unfortunate that petitioner appears to be experiencing financial hardship, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808).

Finally, petitioner does not assert, and there is no evidence in the record suggesting, that petitioner or the students need to vacate their residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).  Therefore, based upon the record before me, petitioner has failed to demonstrate that she and the students 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 respondent’s determination that the students 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 students’ behalf at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.




[1] Petitioner indicates in the petition that she is not seeking transportation; she explains that she “can get [her] children to school, or they can walk.”


[2] Petitioner designated respondent’s homeless liaison to accept service of the petition, thereby obligating the district to file a copy of the appeal with my Office of Counsel (see 8 NYCRR §275.9[b]).


[3] 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.