Appeal of N.W., on behalf of her daughter N.G., from action of the Board of Education of the Islip Union Free School District regarding transportation and residency.

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of Counsel

Decision No. 15,635

(August 16, 2007)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Islip Union Free School District (“respondent”) that her daughter, N.G., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to continue to attend the district’s schools or to receive transportation.  The appeal must be dismissed.

 Petitioner’s daughter has been enrolled in respondent’s schools for several years.  The record indicates that petitioner and her family were evicted from their home in January 2007.  On or about January 25, 2007, petitioner met with the district’s homeless liaison and requested that her daughter be permitted to continue attending the district’s schools because she was homeless due to her family’s loss of housing.  During this meeting, a Student Residency Questionnaire Form and a Dispute Resolution Process Form were completed.  The Student Residency Questionnaire indicated that petitioner and her daughter were residing in an apartment in West Sayville, New York, outside of the district.

By letter dated January 25, 2007, petitioner advised the district’s superintendent that her family was homeless and requested permission for her daughter to continue attending the district’s schools.  The letter stated that petitioner had sold her home in the district to an investor to pay off numerous debts and that the investor had agreed to sell the home back to her but breached this agreement.  The letter explained that she filed a lawsuit against the investor in State Supreme Court and that petitioner and her daughter had found a temporary place to live in West Sayville. 

On or about February 8, 2007, petitioner met with the district’s senior administrative assistant and homeless liaison.  She stated that she and her family were homeless due to the circumstances surrounding the sale of her house and gave the senior administrative assistant and homeless liaison copies of the eviction and court papers.

Petitioner also informed the senior administrative assistant and homeless liaison that since the eviction, she had been renting an apartment in West Sayville.  Petitioner claimed that she was paying the rent with her disability check and that after paying it, there was no money left for other expenses.  Petitioner also maintained that, since the eviction, she was paying $20 a day for a taxi to transport her daughter to and from the district’s schools. 

Subsequent to this meeting, the homeless liaison arranged for transportation to be provided to petitioner’s daughter between the West Sayville residence and the district’s schools.  The homeless liaison further offered to reimburse petitioner for the transportation expenses she had incurred provided that petitioner submitted receipts documenting these expenses. 

By letter dated February 9, 2007, the superintendent advised petitioner that her daughter was not homeless within the meaning of McKinney-Vento because she was residing at a rented apartment in West Sayville and that she would be excluded from respondent’s schools after March 9, 2007.  This appeal ensued.  Petitioner’s interim request for relief was granted on March 15, 2007.

Petitioner contends that her daughter is homeless within the meaning of McKinney-Vento and, therefore, is entitled to both continue enrollment in the district’s schools and receive transportation.  Petitioner claims that her current apartment is temporary and transitional housing because she intends to regain possession of her house within the district through her lawsuit against the investor.

To substantiate her claims, petitioner submits a copy of the eviction papers, a copy of her January 25, 2007 letter to the superintendent and an incomplete copy of the court papers in her lawsuit against the investor.

Respondent contends that petitioner’s daughter is not entitled to attend the district’s schools and receive transportation because she is not homeless within the meaning of McKinney-Vento and Education Law §3209. 

Education Law §3209(1)(a) defines a homeless child as:

(1)a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i)sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii)living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii)abandoned in hospitals;

(iv)awaiting foster care placement;

or

(v)a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2) a child or youth who has a primary night-time location that is:

(i)a supervised publicly or privately operated shelter designed to provide temporary living accommodations...; or

(ii)a public or private place not designed for, or ordinarily used as, a regular sleeping accom-modation for human beings. . . .

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.

Petitioner’s daughter does not fit the definition of a homeless child under either State or federal law.  She has a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  While it is unfortunate that petitioner and her daughter were evicted from their home, there is no proof in the record that petitioner lives in the kind of shelter or other accommodation described in Education Law §3209.  Consequently, neither the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children nor the provisions of Education Law §3209(4) and McKinney-Vento regarding the transportation of homeless children are applicable in petitioner’s circumstances (seeAppeal of M.W., 46 Ed Dept Rep 151, Decision No. 15,471; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108; Appeal of D.R., 43 id.  133, Decision No. 14,944).

     Nor has petitioner established that her current residence is temporary or transitional.  The petition contains only conclusory statements that her current residence is temporary because she intends to prevail in her lawsuit to regain possession of her prior home from the investor.    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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Although petitioner is confident that she will prevail in her lawsuit, there is always a possibility that she will not and such litigation can take years to resolve.    Additionally, despite the fact that petitioner claims that she is having difficulty paying her rent and living expenses, there is no evidence that she needs to vacate her current residence.  Under these circumstances, I find respondent’s determination –- that petitioner’s daughter is not homeless – to be reasonable. 

THE APPEAL IS DISMISSED. 

END OF FILE