Appeal of R.E.W., on behalf of his son R.M.W., from action of the Board of Education of the Pine Bush Central School District regarding residency and transportation.

Decision No. 16,808

(August 5, 2015)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination the Board of Education of the Pine Bush Central School District (“respondent”) that his son, R.M.W. (the “student”), is not homeless within the meaning of the McKinney-Vento Homeless Assistance Improvements Act (42 USC §11431, et seq., “McKinney-Vento”) and is, therefore, not entitled to attend respondent’s schools or receive transportation.  The appeal must be dismissed.

Prior to June 2011, petitioner, his wife and R.M.W. resided within respondent’s district where R.M.W. attended school.  In January 2012, petitioner submitted a “Designation of School District of Attendance for a Homeless Child” form and two letters notifying the district that, in June 2011, he lost his residence due to foreclosure.  Petitioner also informed the district that he had lost his job, and that the family was now living with the student’s grandmother outside of the district.  On or about January 6, 2012, petitioner completed a residency questionnaire indicating that the family was living with another family or person because of loss of housing or as a result of economic hardship and was “doubled up.”  A student residency affidavit, also dated January 6, 2012, asserted that the change in housing was temporary.  At that time, the district determined that the student was homeless and permitted him to continue to attend school in the district and receive transportation.  In August 2012 and again in August 2013, petitioner submitted a “Designation of School District of Attendance for a Homeless Child” form indicating that the situation remained the same.  R.M.W. attended school in the district for the 2012-2013 and 2013-2014 school years, pursuant to such designation.

On July 10, 2014, district staff requested updated information from petitioner regarding the student’s residency and homeless status.  Petitioner indicated that the student continued to live in his grandmother’s house outside of the district.  At the time, petitioner stated that the home has three bedrooms and that the student has his own bedroom.  Respondent’s homeless liaison also reviewed public tax records for the grandmother’s house, which listed it as a single family, three bedroom house of over 1,000 square feet.  By letter dated August 11, 2014, the homeless liaison notified petitioner that the district had determined the student was no longer homeless.  On August 25, 2014, the homeless liaison issued a “Final District Decision,” stating that the student was no longer entitled to enrollment in or transportation to the district’s schools.  The decision stated that, because the student had been residing in the out-of-district home since the 2011-2012 school year, his residence there could no longer be deemed “temporary.”  The decision also stated that the residence was fixed, regular and adequate.

This appeal ensued.  Respondent agreed to continue to permit R.M.W. to attend school in its district pending a determination of the appeal.

Petitioner contends that his son is homeless within the meaning of McKinney-Vento and, therefore, is entitled to continue to attend school in respondent’s district and receive transportation.  Petitioner now states that the student sleeps on an air mattress at the foot of his parents’ bed, but has a room of his own when his grandmother isn’t renting out one of the other rooms in the house.  Petitioner also states that the student has to do his school work at the kitchen table.  Petitioner asserts that he is working part-time and his wife is unemployed.  He states that they are looking for full-time work but, in the meantime, they are “doubled up” in their current living situation.  Lastly, petitioner contends that their living situation is temporary and that there are three other people renting rooms in the grandmother’s house.

Respondent contends that petitioner’s son is not homeless within the meaning of McKinney-Vento and Education Law §3209.  Respondent asserts that the student’s residence is no longer temporary, as he has been living there since the end of the 2011-2012 school year.  Respondent asserts that there is no evidence that petitioner and his family must vacate the out-of-district residence at any time.  Moreover, respondent notes that petitioner has not asserted that he is attempting to obtain in-district housing.  Respondent maintains that petitioner and the student have a fixed, regular and adequate nighttime residence. 

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 accommodation 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 son does not fit the definition of a homeless child under either State or federal law.  On this record, I find that he has a fixed, regular and adequate nighttime residence in his grandmother’s home.  Petitioner’s July 2014 letter states that R.M.W. has his own bedroom in his grandmother’s house.  The information respondent obtained through public tax records confirms that the grandmother’s house is a single family dwelling, with three bedrooms.  The house is not zoned for rental by multiple tenants, although petitioner now claims that three different tenants rent rooms at the grandmother’s house, leaving the student to sleep on an air mattress in his parents’ room at those times.  As noted, the home only has three bedrooms, which belies petitioner’s claims regarding three other tenants.  Although petitioner now submits copies of mail addressed to three individuals he identifies as tenants, he submits no other evidence, such as rental agreements or affidavits, to support his claim that he actually resides there or to explain how any alleged tenancy renders his son homeless for purposes of McKinney-Vento.  Moreover, as respondent correctly argues, it does not follow that the student is homeless on those nights when the student sleeps on an air mattress in his parents’ bedroom, and not homeless on the nights when he has his own room because his grandmother has not rented it out.  Respondent also correctly notes the fact that a student has to do homework on a kitchen table does not render him homeless.  Petitioner does not allege nor is there any other evidence in the record that the grandmother’s house is inadequate. 

There is also no evidence in the record that petitioner’s residence is temporary or transitional.  Petitioner and the student have now been living in the residence since at least June 2011 - more than four years (see Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).  In addition, petitioner does not claim or demonstrate that he and his family must vacate his current residence or that there is a time limit as to how long his family can reside there (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of J.U., 50 id., Decision No. 16,095; Appeal of M.W., 46 id. 151, Decision No. 15,471).  Further, as respondent points out in its memorandum of law, petitioner does not indicate that he is attempting to obtain permanent housing within the district. 

Although petitioner alleges in his petition that he and the student had to leave their in-district residence due to foreclosure after he and his wife lost most of their income, “proof of economic hardship, in and of itself, is not sufficient to establish homelessness” (Appeal of T.J.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  While I am sympathetic to petitioner’s situation, on this record, I cannot conclude that he and his family currently lack a fixed, regular and adequate nighttime residence or that they are living 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 (see Appeal of S.B., 52 Ed Dept Rep, Decision No. 16,487; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108).

On this record, I cannot conclude that respondent’s determination that petitioner’s son is not homeless is arbitrary, capricious or unreasonable.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of his son in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE