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Decision No. 18,034

Appeal of G.J., on behalf of his child A.J., from action of the Board of Education of the Deer Park Union Free School District regarding residency and transportation.

Decision No. 18,034

(August 23, 2021)

Frazer & Feldman, LLP, attorneys for respondent, Bryan Georgiady, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that his 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, not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

Prior to the events leading to this appeal, petitioner and the student resided in respondent’s district and the student attended respondent’s schools.  In September 2020, mail sent by respondent to the student’s address of record (the “first in-district address”) was returned as undeliverable.  When asked, petitioner indicated that he and the student continued to reside at the first in-district address, but that he would prefer to receive mail at an in-district P.O. Box.  Respondent’s attendance teacher proceeded to investigate petitioner’s residency. 

On four school days in October 2020, the attendance teacher parked in a location where he could observe the first in-district address and the student’s bus stop.  According to the attendance teacher, he observed the student get dropped off at the bus stop by a light blue sport utility vehicle (SUV) on two days.  On the other two days, although the attendance teacher did not see the student at the bus stop or the first in-district address, she nevertheless arrived at school on time.  The attendance teacher also spoke with the student’s bus driver, who stated that, for the last few weeks, the student was typically dropped off by the SUV just before pick-up time.  The bus driver also stated that the SUV approached from a different direction than the first in-district address.

By letter dated October 29, 2020, the attendance teacher informed petitioner that the student would be excluded from respondent’s schools as a non-resident.  Petitioner appealed this decision to respondent.

Contemporaneously, petitioner spoke with the attendance teacher by phone and stated that he and the student had moved from the first in-district address because of financial difficulties attributable to the COVID-19 pandemic.  According to petitioner, he was now living with a family friend at a different address in the district (the “second in-district address”).  The attendance teacher informed petitioner that, based on this information, the district would allow the student to remain enrolled in the district as a homeless student, but would continue to investigate her residency.  During this conversation, petitioner indicated that the student occasionally stayed with her mother at an address outside of the district.

In November 2020, the attendance teacher investigated whether petitioner resided at the second in-district address.  According to the attendance teacher, he made over a dozen trips to the second in-district address.  The attendance teacher avers that he did not see the SUV at the second in-district address when he drove by before 7:00 a.m. on multiple occasions, but witnessed it arrive at the bus stop on two days between 8:20 and 8:30 a.m.  The attendance teacher explains that based on the direction from which the SUV came, it “almost certainly” entered the district from an adjacent community.  The attendance teacher submitted a summary of his investigation to respondent during the pendency of petitioner’s appeal.

By letter dated December 16, 2020, respondent determined that petitioner and the student were not district residents because its evidence showed that petitioner had left the first in-district address before the school year began and did not reside at the second in-district address.  Respondent additionally stated that the student’s “mother reside[d] in a fixed and permanent residence” outside the district.  Accordingly, the letter indicated, the student would be excluded from respondent’s schools effective January 15, 2020.  This appeal ensued.

Petitioner argues that the student is homeless because she lacks a fixed, regular, and adequate nighttime residence.  Petitioner asserts that she  is sharing housing with him and her uncle at a heretofore undisclosed residence located outside of respondent’s district (the “out-of-district residence”).  Petitioner seeks a determination that the student is homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent contends that petitioner has failed to demonstrate that he or the student is a district resident or homeless.

Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “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 section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

First, I must address the scope of my review.  Although respondent concluded in its December 16, 2020 determination that the student was neither a district resident nor homeless, petitioner only appeals respondent’s homelessness determination.  Therefore, respondent’s residency determination will not be addressed herein.

On this record, petitioner has failed to meet his burden of proving that the student is homeless.  In this respect, petitioner asserts that he was forced to move from respondent’s district because of financial difficulties caused by the COVID-19 pandemic.  Specifically, petitioner states that he is residing with the student’s uncle at the out-of-district address until he can “find a permanent residence due to loss of residency due to ... COVID-19.”  Petitioner states that the student ordinarily resides at the out-of-district address during the week and at her mother’s residence (also outside of the district) on weekends.  Petitioner offers no description of the characteristics of these residences or any other evidence to suggest that either is inadequate, temporary, or transitional in nature (see, e.g., Appeal of S.R., 58 Ed Dept Rep, Decision No. 17,663; Appeal of T.M., 57 id., Decision No. 17,165).  While petitioner claims that he and the student are homeless because they are sharing the housing of others, the mere fact that two families reside in a house does not automatically render the families homeless (see, e.g., Appeal of M.G., 60 Ed Dept Rep, Decision No. 17,871).

Moreover, although petitioner alleges that he is experiencing economic hardship, economic hardship alone does not compensate for the fact that petitioner has offered no evidence concerning the fixed, regular, or adequate nature of the locations where the student allegedly resides (Appeal of R.D., 60 Ed Dept Rep, Decision No. 17,866; Appeal of D.H., 59 id., Decision No. 17,674; Appeal of T.J.G. and D.G., 54 id., Decision No. 16,652).  Accordingly, based upon the record before me, I find that petitioner has not met his burden of proving that the student lacks a fixed, regular and adequate nighttime residence.  Therefore, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s school on the student’s behalf as a district resident at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.




[1] Education Law § 3209 excludes from the definition of “homeless child” a child who is 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.