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Decision No. 17,721

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Lindenhurst Union Free School District regarding residency and transportation.

Decision No. 17,721

(August 7, 2019)

Guercio & Guercio, LLP, attorneys for respondent, Reesa F. Miles, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Lindenhurst Union Free School District (“respondent”) that her child (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that the student was initially enrolled in respondent’s school on or about July 2, 2010.  According to the record, petitioner and the student lost their permanent housing within respondent’s district and became homeless in the fall of 2012.  Since that time, petitioner and the student have resided at various addresses outside of respondent’s district, and the student has remained enrolled in respondent’s school as a homeless student pursuant to McKinney-Vento.

The record indicates that respondent has provided transportation to the student to and from the same out-of-district residence in Amityville, New York (“the Amityville out-of-district residence”) since February 2, 2015.  The record further indicates that respondent conducted a residency investigation in May 2017, during which the student was observed being transported to the Amityville out-of-district address by school bus on one occasion.  However, despite the investigation, respondent indicates that no action was taken related to the student’s homeless status at that time.

According to the record, on or about March 21, 2018 respondent again conducted a residency investigation during which the student was observed being transported to and from the same Amityville out-of-district address on several occasions.  The record indicates that respondent held a meeting with petitioner on or about April 13, 2018 to discuss petitioner’s residency status.

At the residency meeting, petitioner asserted that she and the student were living at different hotels and motels, for which her mother (the student’s grandmother) pays.  Petitioner additionally stated that the student receives transportation to and from the residence of a “good friend.”  At this meeting, petitioner presented documents related to hotel “rewards points” on various dates in 2017 and 2018.  Petitioner also submitted a letter from a friend in which the friend indicated that she was aware of the instability of petitioner’s living situation and asserted that, for the most part, petitioner had been staying in “hotel apartment style housing.”  Petitioner also provided respondent with a letter from her mother in support of petitioner’s claim of homelessness.

By letter dated May 24, 2018, respondent’s homeless liaison (“liaison”) informed petitioner that, based upon its investigation and the limited documentation provided by petitioner, the student was no longer considered homeless and would be excluded form respondent’s schools after June 22, 2018.  This appeal ensued.

Petitioner contends that she is sharing the housing of others due to loss of housing and economic hardship, which was the result of the foreclosure of a rental property in 2012.  Petitioner asserts that she and the student stay at several addresses outside of the district, as well as motels and hotels.

Respondent asserts that the petition should be dismissed for failure to state a claim, failure to meet the burden to prove that the student is homeless within the meaning of McKinney-Vento, and because respondent’s determination was neither arbitrary nor capricious.

I must first address a procedural matter.  By letter dated October 17, 2018, the liaison provided the Office of Counsel with copies of materials petitioner submitted to the liaison on October 16, 2018, which purport to further establish petitioner’s homeless status.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).

A party seeking to file affidavits, exhibits and other supporting papers pursuant to §276.5 of the Commissioner’s regulations is required to submit an application to the Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such document, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties (8 NYCRR §276.5[a]).  Petitioner did not request or obtain prior permission to serve and file the submitted documents in accordance with 8 NYCRR §276.5.  I have reviewed the documents submitted by petitioner, including the hotel statements, a foreclosure statement, unsworn letters from family and friends, a STAC 202 form, a residency questionnaire and a hotel key, and find that they contain new factual or legal assertions which were not raised in the petition and were available at the time petitioner commenced this appeal.  As a result, I will not consider such materials.

Among the documents submitted by petitioner is an unsworn letter from petitioner dated September 20, 2018 that is addressed to the Commissioner in which she complains about the behavior of respondent’s homeless liaison.  In the letter, petitioner complains, among other things, that the homeless liaison misled her by telling her that her proof of homelessness was sufficient and that the homelessness liaison instructed a teacher who questioned her son to do so in a manner that would frighten him.  Respondent has interpreted the September 20, 2018 letter as a reply and seeks permission pursuant to 8 NYCRR §276.5(a) to submit a sur-reply and sur-reply affidavit in which the homeless liaison denies petitioner’s allegations and argues that the “reply” must be dismissed as untimely and for lack of verification.  Petitioner’s September 20, 2018 letter is partially responsive to allegations in respondent’s answer and the annexed affidavit of the homeless liaison and, thus, is arguably in the nature of a reply.  Accordingly, to that extent I will accept the sur-reply for filing as an additional pleading pursuant to 8 NYCRR §275.3(b) and the sur-reply affidavit as an additional affidavit pursuant to 8 NYCRR §276.5(a).

However, §275.5(a) of the Commissioner’s regulations requires that all pleadings be verified, and as respondent contends, petitioner’s September 20, 2018 letter is not verified in accordance with 8 NYCRR §§275.5 and 275.6.  Because petitioner’s submission in the nature of a reply is not verified, I will not consider it (see Appeal of Roth, 56 Ed Dept Rep, Decision No. 17,012; Appeal of F.M. and C.M., 56 id., Decision No. 16,978; Appeal of a Student with a Disability, 46 id. 102, Decision No. 15,454).  Moreover, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  The petition makes no claims against the homeless liaison, and seeks no relief other than a determination that the student is homeless and entitled to attend respondent’s schools without the payment of tuition and to receive transportation.  Even if it were properly verified, it could not be used to raise new legal claims that should have been asserted in the petition.[1]

     Turning to the merits, 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 ....[2]

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, petitioner failed to meet her burden of proving that the student fits the definition of a homeless child under either State or federal law.  While petitioner alleges that she and the student lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to loss of housing, economic hardship or other similar reasons, petitioner offers no evidence to support this claim other than conclusory assertions that she and the student have been residing in hotels and/or intermittently in the homes of friends and family since the fall of 2012.  In her petition, petitioner first asserts that she and her son are sharing housing at three different out-of-district addresses, none of which are the Amityville out-of-district residence.  She then describes the student’s current living arrangement by explaining that he is staying at one of the three different out-of-district residences, which she identifies as the residence of her mother.  Petitioner also states that her mother’s residence is not “a permanent residence of the child and parent.”  On this record, petitioner has not proven that she and the student are actually residing in hotels or motels, nor has she provided any evidence that her mother’s residence, which she identified in her petition as the student’s current living arrangement, is inadequate, temporary or transitional.  Without proof, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).

Based upon the record before me, petitioner has failed to demonstrate that she and the student currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209.  Accordingly, I cannot find that respondent’s determination that petitioner’s child is not homeless was arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.




[1] For this reason, even if the September 20, 2018 letter was not viewed as a reply, I would not accept it for filing as additional documentation in accordance with 8 NYCRR §276.5.


[2] 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.