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Decision No. 18,186

Appeal of A.W., on behalf of her child, from action of the Board of Education of the Jericho Union Free School District regarding homelessness.

Decision No. 18,186

(August 19, 2022)

Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the Jericho Union Free School District (“respondent”) that her child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

As relevant to this appeal, petitioner and the student resided with a relative at a location in respondent’s district (the “in-district residence”) and the student attended school as a district resident.  The record reflects that petitioner and the student were evicted from the in-district residence in 2017.  Soon thereafter, in April 2017, the student’s uncle indicated that petitioner and the student were temporarily staying with the student’s grandmother at her house (the “out-of-district residence”).  Respondent allowed the student to continue attending its schools as a homeless student.

By letter dated October 27, 2021, respondent determined that the student was not homeless as defined by McKinney-Vento and Education Law § 3209.  Respondent reasoned that the out-of-district residence, where the student had resided since May 2017, was fixed, regular, and adequate.  This appeal ensued.

Petitioner argues that the student is homeless because they are temporarily living with the student’s grandmother at the out-of-district residence.  She argues that this housing is temporary because the grandmother will permit them to stay only so long as the student is eligible to attend respondent’s district as a homeless student.  Petitioner seeks a determination that the student is a district resident entitled to receive, among other things, special education services.[1]

Respondent argues that the student is not entitled to continued enrollment as a homeless student because the out-of-district residence is fixed, regular, and adequate. 

First, I must address two procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also objects to additional exhibits submitted by petitioner following service of the petition.  Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Petitioner claims that it is necessary to submit these documents to refute false allegations by respondent; she further suggests that these documents were received in response to a freedom of information law (“FOIL”) request.  However, the record reflects that respondent denied petitioner’s FOIL request and produced no documents in response.[2]   To the extent petitioner’s documents could be construed as responsive to allegations in respondent’s answer, these documents predate the petition and should have been submitted with the reply.  Accordingly, I decline to accept the additional documents submitted by petitioner.

Turning to the merits, 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.”[3]  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, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 prove that the student lacks a fixed, regular, and adequate nighttime residence.  While she asserts that she and the student are “doubled up,” it is well established that “the mere assertion that a student is sharing the housing of other persons does not, without more, establish that a residence is inadequate” (Appeal of K.S., 60 Ed Dept Rep, Decision No. 17,875; see also Appeal of C.M., 58 id., Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146).

Petitioner has also failed to prove that the out-of-district residence is temporary.  The record reflects that petitioner and the student have resided at the out-of-district residence since 2017.[4]  The sole evidence suggesting that petitioner may have to leave this residence is a letter dated November 27, 2021 from the grandmother.  In the letter, the grandmother asserts that she has hosted petitioner and the student “to provide temporary safe shelter,” and that she will evict petitioner and the student if and when the student is found to be ineligible under McKinney-Vento.[5]  While the grandmother’s statement is concerning, it is conditional and does not provide “a specific date as to when the premises must be vacated” (Appeal of T.L., 58 Ed Dept Rep, Decision No. 17,472; see generally Appeal of N.L., 62 id., Decision No. 18,141; Appeal of S.D., 53 id., Decision No. 16,608).  As such, it does not establish that the out-of-district residence is temporary.  To hold otherwise would permit the residence to be considered temporary in perpetuity.

Moreover, petitioner has not explained why the student’s homeless status would, or should, affect his ability to reside with the grandmother.  While the grandmother suggests that this could impact her “School Taxes,” there is no evidence in the record that the grandmother’s school taxes would be affected by the student’s enrollment in his district of residence.  I further note that the student, who receives home instruction, would be entitled to receive related services from this district upon request.  Therefore, petitioner has failed to demonstrate that the out-of-district residence is temporary, transitional, or inadequate.

I have considered petitioner’s remaining arguments and find them to be without merit.




[1] The record reflects that petitioner provides home instruction to the student, which is supplemented by services delivered by respondent pursuant to an individualized education services program.


[2] Any appeal of this determination would be outside my jurisdiction, as Section 89 of the Public Officers Law vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747). 


[3] 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.


[4] Although petitioner indicated in multiple housing questionnaires that the student was currently living “[i]n a car, park, bus, train, or campsite,” this contention is not supported by the evidence in the record.


[5] It is unclear what action the grandmother would consider “remov[al]” of the student’s “McKinney-Vento ... [e]ligibility.”  Respondent has already determined that the student has a fixed, regular and adequate nighttime residence; the student has only remained enrolled in its district due to the automatic stay provisions of McKinney-Vento (42 USC § 11432 [g] [3] [E] [i]) and State law (Education Law § 3209 [5] [c]).