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Decision No. 17,910

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the City School District of the City of Ithaca regarding residency and transportation.

Decision No. 17,910

(August 13, 2020)

Bond Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of Ithaca (“respondent”) that her daughter (“the student”) is 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 the district’s schools tuition-free.  The appeal must be dismissed.

Prior to the events leading to this appeal, petitioner resided in respondent’s district and the student attended respondent’s schools as a resident student.  In or about November 2016, petitioner and the student moved into the home of petitioner’s mother, who resides in a neighboring district (the “out-of-district residence”).  Respondent thereafter permitted the student to attend its schools as a homeless student.[1]

On May 23, 2020, respondent’s administration officer and homeless liaison (“homeless liaison”) contacted petitioner to inquire about her housing status.  According to an affidavit submitted by the homeless liaison, petitioner stated that she and the student had moved in with her mother at the out-of-district residence in 2016 “to assist” her mother; that their living arrangement would not change “any time soon”; that they were “welcome to stay ... as long as they wanted”; and that the student had her own bedroom at the out-of-district residence.  The homeless liaison further indicates that petitioner did not report any concerns regarding the adequacy of the out-of-district residence and “admitted that she is a resident of [the neighboring school district].”

By letter dated May 23, 2020, the homeless liaison notified petitioner that, based on his conversation with petitioner earlier that day, the out-of-district residence was fixed, regular and adequate.  The homeless liaison thus concluded that the student was no longer entitled to attend the district’s schools as a homeless student pursuant to McKinney-Vento.  The homeless liaison informed petitioner that the student would be permitted to complete the 2019-2020 school year and would be excluded from respondent’s schools after June 30, 2020.  This appeal ensued.

Petitioner maintains that she and the student are homeless because they are sharing the housing of other persons due to loss of housing, economic hardship or similar reason.  Petitioner states that she decided to move to the out-of-district residence temporarily because her mother was in need of financial support.  Petitioner asserts that the student has special needs and that transferring schools would be detrimental to the student’s education and cause her to “regress.”  Petitioner seeks a determination that the student is entitled to attend respondent’s schools and receive transportation as a homeless student.

Respondent contends that petitioner has failed to establish that she and the student are homeless under McKinney-Vento.

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).

Petitioner has failed to meet her burden of proving that the student is homeless under State or federal law.  Petitioner submits no evidence to show that the out-of-district residence is not a fixed, regular and adequate nighttime residence.  Petitioner merely asserts in the petition that the student has a place to sleep which is “not a bedroom” because “it does not have a door and is not very big,” and that the student’s grandmother and uncle also occupy the out-of-district residence.  However, petitioner has not produced any evidence to support these conclusory statements, such as affidavits or photographs, nor has she explained why these conditions would render the out-of-district residence inadequate.

Respondent, by contrast, has submitted evidence that the out-of-district residence is a substantially remodeled 2,500-square-foot, single-family home valued in excess of $200,000.  Respondent’s evidence further reflects that the out-of-district residence has three bedrooms, one bathroom, a kitchen, a "large living room space,” a “full basement,” and a den.  Respondent also maintains that, in her conversation with the homeless liaison, petitioner denied the existence of conditions that would make the out-of-district residence “inadequate in any way.”  Petitioner did not submit a reply to rebut respondent’s assertions or otherwise explain how her living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774).  Without any supporting evidence, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of Y.G., 60 Ed Dept Rep, Decision No. 17,877; Appeal of a Student with a Disability, 60 id., Decision No. 17,867).

Moreover, petitioner has not established that the out-of-district residence is temporary or transitional.  The record reflects that petitioner and the student have resided at the out-of-district residence continuously since November 2016.  As indicated above, petitioner informed respondent’s homeless liaison on May 23, 2020 that her and the student’s living arrangement would not change “any time soon” and that they were “welcome to stay ... as long as they wanted.”  Although petitioner states that she moved to the out-of-district residence temporarily to assist her mother financially, petitioner does not allege that she or the student will lose their housing imminently, or that there is a fixed time limit as to how long they may remain (see Appeals of M.S., 55 Ed Dept Rep, Decision No. 16,792; Appeal of A.W., 53 id, Decision No. 16,559).  Accordingly, on this record, I cannot find that the out-of-district residence is temporary or transitional.[3]

Finally, petitioner argues that the student’s exclusion from respondent’s schools would, due to her disability, cause her to regress academically and impede her education.  Although I am sympathetic to petitioner’s concerns, the student is not eligible to attend respondent’s district as a homeless student; thus, the student’s district of residence is responsible for offering her a free and appropriate public education (see E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537 [SDNY 2012]).

Based on the record before me, petitioner has failed to demonstrate that she and the student 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 student is not homeless and, thus, not entitled to attend district schools or receive transportation under McKinney-Vento to be arbitrary or capricious.

Although the appeal must be dismissed, petitioner retains 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.




[1] Respondent maintains that its initial determination of homelessness was in error because, as alleged in the petition, petitioner moved in with her mother to support her mother financially, not due to her own loss of housing or financial hardship.  However, respondent’s prior designation of the student as homeless is not germane to my review of respondent’s determination discussed herein.


[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.


[3] Although respondent’s May 23, 2020 exclusion letter indicated that petitioner had told the homeless liaison that she and the student would only live at the out-of-district residence until the student’s grandmother moved “south,” the letter further indicated that there was “no set date” for this move, and petitioner does not repeat such a claim on appeal.