Appeal of A.S., on behalf of her children L.C., C.C., J.P. and D.S., from action of the Board of Education of the Cairo-Durham Central School District regarding residency and transportation.

Decision No. 16,957

(August 26, 2016)

Honeywell Law Firm, PLLC, attorneys for respondent, Kate S. Howard, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cairo-Durham Central School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to continue to receive transportation from their out-of-district residence.  The appeal must be dismissed.

The record indicates that, during the 2014-2015 school year, petitioner’s children attended respondent’s schools as district residents.  According to respondent, in or about July 2015, petitioner and her children became homeless and were living in a motel outside the district.  Thereafter, petitioner requested that her children be permitted to continue to attend the district’s schools and be provided with transportation to and from the temporary residence.  Respondent enrolled the children in its schools and provided transportation.  In March 2016, petitioner notified respondent that her family had moved from the motel and secured a residence outside the district. 

By letter dated March 3, 2016, respondent determined, based on statements made by petitioner, that the children were no longer homeless and were not entitled to receive transportation to and from the new out-of-district residence.  However, respondent permitted the children to complete the remainder of the 2015-2016 school year at its schools but without transportation.[1]  This appeal ensued.  By letter dated April 13, 2016, respondent’s counsel informed my Office of Counsel that the district would provide transportation to petitioner’s children pending a determination in this appeal.  As a result, petitioner’s request for interim relief was determined to be moot.

Petitioner asserts that her children were “recently homeless” until they moved to their new home in March 2016.  She requests transportation to and from their new out-of-district residence.  Despite her assertions regarding her new home outside the district, in her prayer for relief petitioner seeks a determination that her children are homeless, that they are entitled to attend respondent’s schools tuition-free, and that respondent is obligated to transport the children from their out-of-district residence to respondent’s schools.

Respondent does not contest that petitioner’s children were homeless until March 2016, and were, therefore, entitled to attend the district’s schools through the remainder of the 2015-2016 school year.  Respondent maintains that petitioner and her children now reside in Catskill, outside the district, and that her children are not homeless students as defined by State and federal law.  Specifically, respondent asserts that petitioner has neither alleged nor produced evidence that she or the children currently lack a fixed, regular and adequate night-time residence nor that their living arrangement is temporary or inadequate.  Respondent maintains that petitioner has failed to state a claim upon which relief may be granted.

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

(1)a child or youth who lacks a fixed, regular, and adequate nighttime 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 nighttime 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.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on the record before me, I find that petitioner’s children do not meet the definition of homeless children under Education Law §3209.  The record indicates that petitioner and her children lived in a temporary and inadequate residence outside the district from approximately July 2015 to March 2016, at which time petitioner entered into a lease for housing outside the district.  The parties do not dispute that petitioner and her children were previously homeless but now live in a residence outside the district.  Indeed, despite her prayer for relief, petitioner indicates in her petition that the family is no longer homeless and cites, as the basis for the homeless designation and transportation request herein, the fact that the children were “recently homeless.”  Petitioner does not assert that the new residence is temporary or inadequate and there is no evidence in the record to support such a claim (see Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of S.T., 53 id., Decision No. 16,619). 

Based upon the record before me, I cannot conclude that petitioner and her children lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Accordingly, I cannot find that respondent’s determination that petitioner and her children are no longer homeless and are not entitled to transportation is arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on behalf of her children at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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