Appeal of O.O. and D.O., on behalf of their child N.O., from action of the Board of Education of the Elmont Union Free School District regarding residency and transportation.

Decision No. 17,723

(August 8, 2019)

Colum Nugent, Esq., attorney for respondent

ELIA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that their child (“the student”) is not a district resident and is therefore not eligible to attend the district’s schools tuition-free.  Petitioners also assert that the student is homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The student was registered in respondent’s schools at all times relevant to this appeal.  In the fall of 2018, respondent received information that the student was not residing at the address listed on his registration records.  Accordingly, respondent contacted the student’s family to inform them that they were required to re-register the student using their new address.  Petitioners did not re-register the student.  Rather, in December 2018, petitioners contacted respondent and claimed that they were homeless.  At a meeting in January 2019, petitioners provided respondent’s director of pupil personnel services with two addresses in the district where they purportedly lived.  Respondent avers that, according to petitioners, they were renting one property and would move to the other property in four to six months.  There is no indication in the record as to whether respondent made a determination as to the student’s homeless status.

Respondent retained a company to investigate the student’s residency.  According to an investigation report dated March 16, 2019, the student and petitioner D.O. were observed traveling from school to a residence outside of the district in Jamaica, New York (“the Jamaica residence”) after school on March 7.  The following morning, the company conducted surveillance at the Jamaica residence at 6:00 a.m.  At 8:30 a.m., the student and an adult male exited the Jamaica residence and departed in a vehicle registered to petitioner O.O.  On the following three weekdays, the student and petitioners were observed leaving the Jamaica residence between 8:30 a.m. and 9:00 a.m.

On March 28, 2019, respondent’s superintendent met with petitioner D.O. and other representatives of respondent to discuss the student’s residency.  According to respondent, the superintendent told petitioner D.O. that the district believed she was living in Jamaica.  Petitioner D.O. stated, “I’m not living nowhere, I sleep wherever, I don’t have an address.”  When the superintendent indicated that the district had evidence that the student was not a resident of the district and evidence of the family coming out of the Jamaica residence, petitioner D.O. responded, “we don’t have permission to give you that address.”  Petitioner D.O. later said, “I have a house where all my clothes are.”  Following the meeting, by letter dated March 28, 2019, respondent’s superintendent determined that the student did not reside in the district and would be excluded from the district.  This appeal ensued.

Petitioners appear to assert that the child is homeless because he lacks a fixed, regular, and adequate nighttime residence and is sharing the housing of petitioners and his aunt because petitioner O.O. sold the family’s house.

Respondent contends that its residency determination was appropriate based on its investigations, including surveillance evidence and the interview with petitioner D.O.  Respondent also denies petitioners’ claim that they and the student are homeless.

First, I must address the scope of my review in this matter.  Although petitioners appear to appeal from respondent’s March 28, 2019 residency determination, the sole relief which they seek in this proceeding is a determination that the student “is a homeless student entitled to attend” school in respondent’s district.  Ordinarily, the presentation of such a claim for the first time on appeal would result in dismissal for failure to present the claim to respondent below (Appeal of M.S., 59 Ed Dept Rep, Decision No. 17,668; Appeal of J.M. and R.C., 58 id., Decision No. 17,470; Appeal of J.H., 52 id., Decision No. 17,376; Appeal of A.R. and S.R., 40 id., 262, Decision No. 14,477).  However, in this case, respondent admits in its verified answer that petitioners asserted to respondent that they and the student were homeless in or around December 2018.  While there is no indication as to whether respondent made a written determination as to homelessness at that time or any time thereafter, respondent admits in its verified answer that the “action taken by the superintendent ... on March 28, 2019, when he determined that the family was neither homeless nor district residents was predicated upon” the residency investigation and the interview with petitioner D.O.  Respondent does not raise untimeliness as a defense in its answer.  Under these circumstances, I find that this claim is properly before me.

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

2. 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).

Here, petitioners have failed to meet their burden to prove that the student is homeless under State or federal law.  Petitioners have offered no proof that the student lacks a fixed, regular, and adequate nighttime residence.  Initially, petitioners present inconsistent allegations as to where they and the student reside.  Petitioners indicate that they live at an address located within respondent’s district, but also assert that petitioners and the student live with the student’s aunt because their home within the district is not “livable.”  The petition further states, without explanation, that petitioner O.O. lived at an “unknown location” at some point during the events underlying this appeal.  Petitioners offer nothing more than conclusory allegations regarding the adequacy and temporary nature of the student’s residence, and such allegations do not satisfy their burden of proof (see Appeal of A.S., 58 Ed Dept Rep, Decision No. 17,559).

Respondent has submitted evidence that the student has been transported to and from the Jamaica residence to school on multiple occasions.  Petitioners do not address respondent’s surveillance evidence, although I note that, even assuming that the student resides outside of respondent’s district, such residency is not necessarily dispositive of the student’s homeless status.[2]

Finally, although not raised by petitioner, it is unclear from the record whether respondent complied with all procedural requirements set forth in §100.2(x) and/or §100.2(y) of the Commissioner’s regulations in determining whether the student was homeless or a district resident.  I remind respondent to ensure such compliance in making determinations concerning residency or homelessness.

Although the appeal must be dismissed for the reasons described above, I note that petitioners have 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 DIMISSED.

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