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Decision No. 18,292

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

Decision No. 18,292

(June 29, 2023)

Ingerman Smith LLP, 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 tuition-free.  The appeal must be dismissed.

This appeal follows the events and decision in Appeal of A.W. (62 Ed Dept Rep, Decision No. 18,186) (the “prior appeal”).  In that decision, I found, among other things, that petitioner failed to demonstrate that her residence was temporary, as the evidence showed that she and the student lived with the student’s grandmother outside of respondent’s district since 2017.  I also rejected petitioner’s argument that she should be considered homeless based upon the grandmother’s assertion that she would evict petitioner and the student if I determined that the student was no longer homeless.[1]  I also addressed the grandmother’s unsupported prediction that enrolling the student in his district of residence—the Harborfields Central School District (“Harborfields”)—would raise her “School Taxes.”  I found that there was no evidence in the record that her property or school taxes would be affected thereby and that the student, who receives home instruction, would be entitled to receive such services from Harborfields upon request.  Accordingly, by decision dated August 19, 2022, I dismissed the appeal.

Following this decision, petitioner attempted to re-enroll the student in respondent’s district.  In connection therewith, petitioner completed a housing questionnaire in which she claimed that she and the student were homeless and living “[i]n a car, park, bus, train, or campsite.”  Petitioner further claimed that the grandmother evicted her and the student on August 3, 2022,[2] and that, from that time until August 27, 2022, she and the student had “been living in hotels and hospitals … [and were] now living in a car ….”[3]  Petitioner submitted a receipt from a motel located in respondent’s district that showed payments made for August 29, 2022 through September 4, 2022, as well as a reservation at the motel for September 5, 2022 through September 26, 2022.

By letter dated August 30, 2022, respondent’s superintendent informed petitioner that the district would not enroll the student as a homeless student.  The superintendent stated that, because the prior appeal decided that Harborfields was petitioner’s last permanent residence, petitioner should “contact [Harborfields] regarding a homeless determination.” 

Petitioner thereafter commenced this appeal vis-à-vis respondent’s homeless liaison.  On September 14, 2022, I granted petitioner’s request for interim relief, ordering that the student be enrolled in respondent’s district.  I noted, however, that respondent was not precluded from continuing to investigate petitioner’s residency status or determining whether her residence was fixed, regular, or adequate.

In her petition, petitioner claims that the student is homeless because she and the student were evicted from the grandmother’s house after the prior appeal and forced to move into a motel.  She seeks a determination that the student is homeless.

Respondent argues that the student is not entitled to continued enrollment as a homeless student because, as of early November 2022, petitioner and the student moved back into the grandmother’s out-of-district residence, which, as decided in the prior appeal, 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 and arguments submitted by petitioner following service of the petition.  Additional affidavits, exhibits, and other supporting papers may be submitted only 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).  As in the prior appeal, petitioner claims that it is necessary to submit these documents to refute false allegations and harassment by respondent.  However, petitioner’s unsupported claims largely reiterate her numerous, prior accusations of alleged wrongdoing.  As such, they will not be considered.

The petition must be dismissed for failure to join a necessary party.  A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such.  Joinder requires that a party be clearly named in the caption of the appeal and served with a copy of the notice of petition and petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Given the prior appeal and events described below, Harborfields is a necessary party as it would be affected by a determination in favor of petitioner.  By letter dated November 22, 2022, the Office of Counsel directed respondent to join Harborfields and revise the caption of the appeal to include Harborfields as a respondent (the “joinder order”).  Respondent was directed to serve copies of all available pleadings with the revised caption on Harborfields by December 2, 2022.

Petitioner objected to this request on the ground that she did not wish to transmit certain medical information, which she attached as exhibits to the petition, to Harborfields.  In response, by email dated November 23, 2022, the Office of Counsel accommodated this request by directing petitioner to “remove any documents that [she was] not comfortable submitting to [Harborfields].”  Petitioner was further directed to submit the redacted petition to respondent, which would then review and transmit the documents to Harborfields.  Although counsel for respondent was amenable to this procedure, petitioner continued to raise objections to the joinder order and did not comply with these directives.

On December 5, 2022, the State Education Department’s Counsel & Deputy Commissioner for Legal Affairs (“SED Counsel”) addressed petitioner’s continued objections to the joinder order.  SED Counsel indicated that the Commissioner was authorized to order joinder of a party and that joinder of Harborfields was “non-negotiable.”  He further observed that the Office of Counsel provided petitioner with the opportunity to omit any medical information she submitted with her appeal.  He additionally indicated that the Commissioner would entertain a request for an extension of time or a request for petitioner to transmit the amended materials to Harborfields directly.  Finally, he stated that petitioner’s “[f]ailure to comply with [the joinder] order may result in dismissal of the appeal.”  SED Counsel directed petitioner to serve the revised pleadings on Harborfields by January 20, 2023. 

By letter dated January 25, 2023, SED Counsel clarified that, because petitioner failed to join Harborfields by the January 20, 2023 deadline, respondent no longer had a duty to transmit a copy of the pleadings to Harborfields.  Respondent would only be responsible for serving these pleadings, SED Counsel indicated, if and when petitioner provided respondent with the redacted petition.  As of the date of this decision, petitioner has not provided respondent or Harborfields with a redacted petition.

Thus, the record supports a finding that, despite several attempts to accommodate her concerns, petitioner ignored numerous directives issued by the Office of Counsel.  As such, the appeal must be dismissed for failure to join a necessary party and petitioner’s failure to comply with the reasonable directives of the Office of Counsel thereto (Education Law § 311; 8 NYCRR 275.1; Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689).[4]

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on 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.”[5]  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).

Petitioner has failed to meet her burden to demonstrate that she and the student lack a fixed, regular, and adequate nighttime residence.  While petitioner initially alleged that she was physically present in respondent’s district, she and the student have since moved back into the grandmother’s residence, which is within Harborfields’ geographical boundaries.[6]  Petitioner concedes this point, asserting in a May 12, 2023 communication that she and the student are “doubled up” and “displaced” at the grandmother’s residence.  The fixed, regular, and adequate nature of the grandmother’s house was already raised and decided against petitioner in the prior appeal.  The doctrine of collateral estoppel—the principle that a party gets a single “bite at the apple”—bars reconsideration of that claim here (Appeal of Moss, 60 Ed Dept Rep, Decision No. 18,006).  As such, the appeal must be dismissed.

One final note is in order.  Should petitioner commence another appeal alleging homelessness that relies upon the same or similar facts, she will be required to join Harborfields.  Moreover, if petitioner continues to ignore directives of the Office of Counsel or purposefully moves the student into a temporary or inadequate shelter to take advantage of the automatic stay provisions of McKinney-Vento and Education Law § 3209, she will be subject to sanctions that may include dismissal of the appeal (see Appeal of G.D. and D.D., 59 Ed Dept Rep, Decision No. 17,797, appeal dismissed, Matter of Dukes v Cold Springs Harbor Cent. School Dist. Bd. of Educ. [Sup Ct, Albany County June 8, 2020, Walsh, J.]).

In light of this determination, I need not address the parties’ remaining contentions.




[1] Specifically, because petitioner did not offer a specific date, I held that this conditional statement did not render her residence temporary. 


[2] This is inconsistent with petitioner’s claim that the grandmother would only evict her upon “remov[al]” of the student’s “McKinney-Vento ... [e]ligibility” as she was evicted over two weeks prior to my decision.


[3] It is unclear from the record how to reconcile the date on the form—August 25, 2022— with the dates in petitioner’s timeline of events.


[4] Although petitioner later claimed that she objected to the transfer of medical and education records attached to respondent’s answer, she did not raise this argument until January 26, 2023—six days after the deadline to comply with the joinder order.


[5] 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.


[6] Petitioner claims that she was ordered by respondent to move back in with the grandmother instead of moving into her car when she ran out of money to pay for the motel room.  Respondent refutes this allegation.  Regardless, it is undisputed that petitioner returned to the grandmother’s residence in early November 2022.