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Decision No. 17,898

Appeals of G.S, on behalf of her children, from action of the Board of Education of the Patchogue Medford Union Free School District regarding residency and transportation.

Decision No. 17,898

(August 6, 2020)

Guercio & Guercio, LLP, attorneys for respondent, Torrey A. Chin, Esq., of counsel

TAHOE., Interim Commissioner.--In three separate appeals, one for each of her children, petitioner challenges determinations of the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) that her children (“the students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., (“McKinney-Vento”) and, therefore, not entitled to attend respondent’s schools tuition-free.  Because these appeals present identical issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

The record in this matter is sparse and not entirely clear regarding the events giving rise to these appeals.  As best as can be ascertained, the students previously resided at a location within respondent’s district (the “in-district residence”) and attended respondent’s schools as resident students.  According to petitioner, she and the students were subsequently evicted from the in-district residence and moved to a friend’s home located outside of the district (the “out-of-district residence”).  According to the record, petitioner began residing at the out-of-district residence on or about November 18, 2019.

In three letters dated February 10, 2020, respondent’s superintendent notified petitioner that the students would be excluded from respondent’s schools effective March 11, 2020, as they were neither district residents nor homeless.  These appeals ensued.

Petitioner maintains that she and the students are sharing the housing of other persons due to loss of housing, economic hardship or similar reason.  Petitioner requests a determination that the students are homeless and entitled to attend respondent’s schools and receive transportation without payment of tuition.

First, I must address a procedural issue.  Respondent did not submit a timely answer in this appeal.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).

The petition was served upon respondent on March 11, 2020; however, respondent did not serve its answer until May 15, 2020.  In an email to my Office of Counsel dated May 8, 2020, counsel for respondent explained that the petition in this matter was served immediately prior to the issuance of a Statewide executive order closing the public schools due to the COVID-19 pandemic.  As a result of these closures, respondent did not file the petition with my Office of Counsel until May 11, 2020.[1]  Respondent thereafter served its answer on May 15, 2020, four days after the petition was filed with my Office of Counsel.[2]  Based on these mandatory school closures and the widespread implications thereof, as well as the fact that petitioner and her children suffered no prejudice as they remained enrolled in respondent’s district at all times during the pendency of this appeal, I have, in the exercise of my discretion, accepted respondent’s explanation as a valid excuse for the late answer (see Appeal of Brarens, et al., 51 Ed Dept Rep, Decision No. 16,317).  Accordingly, I have accepted respondent’s late answer into the record.

In its answer, respondent maintains that petitioner fails to state a claim upon which relief may be granted, as the students are not homeless under State or federal law.  Respondent also contends that it acted properly and that its determinations were not arbitrary, capricious or irrational.

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).

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  Petitioner submits no evidence that the out-of-district residence is not a fixed, regular and adequate nighttime residence.  The only allegations concerning the alleged inadequacy of the out-of-district residence are:  (1) petitioner’s statement that her family shares the out-of-district residence with a friend and two members of the friend’s family; and (2) her description of the out-of-district residence:

It’s 3 bed rooms[,] one bathroom[,] kids share room[s].  The boys share and the girls share[.]  I sleep on the sofa[-]bed blow[-]up matt[ress] for the kids.

Petitioner, however, has produced no evidence in support of her allegations.  Without any specific information about the adequacy of petitioner’s and the students’ living arrangements, such as affidavits or photographs, I cannot find that the out-of-district residence is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).

Moreover, petitioner has not established that the out-of-district residence is temporary or transitional.  According to respondent, petitioner and the students have lived at the out-of-district residence since at least November 18, 2019.  Petitioner neither asserts nor establishes that she and the students will have to vacate the out-of-district residence or that there is a fixed time limit as to how long they can remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).

Based on the record before me, petitioner has failed to demonstrate that she and the students lack a fixed, regular and adequate nighttime residence or that their residence is temporary or transitional within the meaning of McKinney-Vento.  Accordingly, I cannot find respondent’s determination that the students are not homeless and, thus, not entitled to attend district schools or receive transportation under McKinney-Vento to be arbitrary or capricious.

Although the appeals must be dismissed because petitioner has not met her burden of proof, petitioner retains the right to reapply for admission on behalf of the students at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.




[1] Petitioner designated respondent’s homeless liaison to receive and hold correspondence regarding this appeal.


[2] Although an answer must be served within 20 days of service of the petition, as a practical matter, the State Education Department will have no knowledge that an appeal was commenced until it is filed, as required by 8 NYCRR §275.9, with my Office of Counsel.


[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.