Appeal of R.D., on behalf of her children A.N., J.N., and D.N., from action of the Board of Education of the Amherst Central School District regarding residency and transportation.

Decision No. 17,866

(July 1, 2020)

Hodgson Russ LLP, attorneys for respondent, Ryan L. Everhart, Esq., of counsel

Tahoe., Commissioner.--Petitioner appeals the determination of the Board of Education of the Amherst Central School District (“respondent”) that her children, A.N., J.N., and D.N. (“the students”), are not homeless within the meaning of the McKinney-Vento Homeless Education 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.

Prior to the events giving rise to this appeal, petitioner and the students resided at an apartment in respondent’s district (the “in-district address”) and the students attended respondent’s schools as resident students.

On or about November 20, 2018, petitioner submitted two copies of a form entitled “Enrollment Form – Residency Questionaire [sic]” for two of the students, J.N. and A.N., indicating that they were living “[w]ith another family or other person because of loss of housing or as a result of economic hardship.”[1]  Petitioner additionally submitted three undated copies of a form entitled “Designation of School District of Attendance for a Homeless Child” – one for each of the students – on which she indicated that the students would be residing in “temporary housing” outside of respondent’s district (the “out-of-district address”) effective November 24, 2018.  Respondent permitted the students to remain enrolled in its district and complete the 2018-2019 school year.

In a letter dated July 19, 2019, respondent’s high school principal (“principal”) asked petitioner to update the students’ “residency information, including homeless status relative to fixed, adequate and regular housing.”  Petitioner thereafter submitted new enrollment forms for the students, on which she provided the out-of-district address as the students’ current address and checked a box to indicate that the students were living in an “[o]ther temporary living situation,” which she described as “temporarily at [their] grandparents[’] house.”  In the enrollment form for student A.N., petitioner additionally checked a box indicating that A.N. was living “with another family or other person because of loss of housing or as a result of economic hardship ... sometimes referred to as ‘doubled-up.’”[2]

By letter dated August 5, 2019, the principal informed petitioner that the district “ha[d] reason to believe that [the students were] no longer homeless.”  Specifically, the principal reasoned that the students had resided at the out-of-district address “on a continuous and uninterrupted basis since approximately November 24, 2018,” and, thus, it “appear[ed] [that] the arrangement [was] regular and no longer temporary.”  The principal further opined that the out-of-district address was “fixed and adequate.”  The principal invited petitioner to submit information demonstrating that the students’ residence at the out-of-district address was not fixed, regular and adequate.[3]  The record reflects that petitioner informed respondent in September 2019 that she intended to move back into the district.  Respondent permitted the students to attend its schools in the beginning of the 2019-2020 school year.

In a letter dated December 6, 2019, the principal informed petitioner of his determination that the students were “no longer homeless” and, thus, “not entitled to attend [d]istrict schools.”  Specifically, the principal stated that the students had resided at the out-of-district address since November 24, 2018 and, further, that this residence constituted a “fixed, adequate, nighttime residence.”  While the principal noted that petitioner had informed the district of her intention to move back into the district, he stated that she had “not provided ... any further documentation that indicate[d]” she was in the process of “securing a residence in the district....”  The principal advised petitioner that the students would be excluded from the district’s schools after January 24, 2020.  This appeal ensued.

Petitioner claims that the students are homeless within the meaning of McKinney-Vento.  Petitioner specifically claims that she and the students are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  She seeks a determination that the students are homeless and, thus, entitled to attend respondent’s schools without payment of tuition and receive transportation.

Respondent argues that petitioner has failed to meet her burden of establishing that the students are homeless within the definition of Education Law §3209 and McKinney-Vento.

First, I must address a procedural matter.   Respondent asserts that petitioner did not file a reply and, thus, the facts pertaining to respondent’s affirmative defenses must be deemed true.  As a result of petitioner's failure to reply to the affirmative defenses asserted by respondent, the facts alleged by respondent in connection with its affirmative defenses are considered to be true (Appeal of S.S., 58 Ed Dept Rep, Decision No. 17,492; Appeal of Carmand and White, 54 id., Decision No. 16,689). However, a legal analysis of any such facts must still be undertaken, and I am not bound to accept respondent’s legal conclusions with respect to its affirmative defenses merely because petitioner did not submit a reply (see Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689).

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:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals; or

(iv) 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;

(v) an unaccompanied youth ...; or

(2) a child or youth who has a primary nighttime location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

(ii) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....

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).

Based on the record before me, I find that petitioner has failed to meet her burden of proving that the students are “homeless” under State and federal law.  Initially, petitioner has not demonstrated that she and the students became homeless due to loss of housing, economic hardship or a similar reason.  The only explanation in the record is the following statement by petitioner in the petition:[4]

I was having money issues and mental issues. The apartment we were in was too small for us.  I took some classes on finding a house and I moved jobs. I am in the process of getting a house.

Although petitioner states she was “having money issues,” she has not submitted evidence proving that she and the students were facing eviction or were otherwise unable to remain at the in-district address.  While it is unfortunate that petitioner’s financial situation was unstable and may have impacted her ability to pay rent, economic hardship – standing alone – does not establish homelessness within the meaning of McKinney-Vento or State law (Appeal of D.H., 59 Ed Dept Rep, Decision No. 17,674; Appeal of H.H., 57 id., Decision No. 17,141; Appeal of T.J.G. and D.G., 54 id., Decision No. 16,652).

Petitioner has also failed to explain how her “mental issues” or change of jobs caused, or were related to, her leaving the in-district address.  Indeed, petitioner’s statements that she took steps to purchase a house[5] suggest that petitioner voluntarily left the in-district address. Therefore, on this record, petitioner has failed to establish that she is sharing the housing of other persons due to a loss of housing or similar reason rather than a personal preference (see Appeal of K.L., 59 Ed Dept Rep, Decision No. 17,730; Appeal of A.S., 58 id., Decision No. 17,559; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108).

Moreover, petitioner has failed to prove that the out-of-district address is inadequate, such that she and the students currently lack a fixed, regular and adequate nighttime residence (see Appeal of A.S., 58 Ed Dept Rep, Decision No. 17,559; Appeal of R.V., 56 id., Decision No. 16,923; Appeal of Z.P. and D.P., 54 id., Decision No. 16,639).  Petitioner alleges that she and the students share a three-bedroom home with the students’ grandparents and uncle and that each of the students “sleeps on a couch.”  However, other than her conclusory allegations, petitioner has provided no actual evidence of the students’ living arrangements at the out-of-district address, such as photographs (see Appeal of A.S., 58 Ed Dept Rep, Decision No. 17,559; Appeal of F.C., 57 Ed Dept Rep, Decision No. 17,243; cf. Appeal of T.R., 59 Ed Dept Rep, Decision No. 17,794 [petitioner submitted photographs documenting student’s lack of storage or privacy and depicting his sleeping arrangement, wherein petitioner, student, and his sibling slept on a couch and day bed in the living room of grandparent’s one-bedroom apartment]).  Additionally, although petitioner suggests that the house is overcrowded, she has not produced any proof of this assertion or otherwise established how the out-of-district address is inadequate (see Appeal of G.D. and D.D., 58 Ed Dept Rep, Decision No. 17,541, petition to review dismissed sub nom Matter of Dukes v Elia, et al., Sup. Ct., Albany Co. [Koweek, J], June 26, 2019).

Finally, the petition contains no evidence that the out-of-district address – where petitioner and the students have resided since November 2018 – is temporary or transitional in nature, or that there is a fixed time limit as to how long petitioner and the students may remain (Appeal of D.D., 59 Ed Dept Rep, Decision No. 17,731; Appeal of J.S., 57 id., Decision No. 17,134).

Therefore, based upon the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate nighttime residence or are living in a shelter or other temporary living accommodations as set forth in Education Law §3209.  Accordingly, I cannot find respondent’s determination that the students are not homeless and therefore not entitled to attend respondent’s schools or receive transportation to be arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains 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.

THE APPEAL IS DISMISSED.

END OF FILE