Appeal of A.S., on behalf of her daughter J.L., from action of the Board of Education of the Bethlehem Central School District regarding residency and transportation.

Decision No. 16,959

(August 26, 2016)

Whiteman Osterman & Hanna LLP, attorneys for respondent, Beth A. Bourassa, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bethlehem Central School District (“respondent”) that her daughter, J.L., is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements 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 sustained.

According to petitioner, in or about July 2011, petitioner and J.L. moved into petitioner’s mother’s house in Glenmont, New York (“Glenmont address”) with her mother and stepfather, after having to vacate her friend’s apartment in Whitestone, New York.  In or about August 2011, petitioner enrolled J.L. in first grade in respondent’s Glenmont Elementary School (“Glenmont”) as a homeless student and designated respondent as J.L.’s school district of current location under McKinney-Vento.[1]  

On November 28, 2012, petitioner notified the district that she and J.L. had been “kicked out” of the Glenmont address and were “now staying with [J.L.’s] father” in Albany (“first Albany address”).[2] Respondent granted petitioner’s request for transportation on behalf of J.L. to and from the first Albany address.

By e-mail dated August 8, 2013, petitioner provided respondent with an update as to her living situation.  She indicated that J.L. stays with her father at the first Albany address “most of the time” and “sometimes” stays with petitioner’s mother in Glenmont.  Petitioner indicated that she does not reside at the first Albany address as she does not have the keys and is not on the lease.  Petitioner advised that she is residing at her friend’s apartment in Albany (“second Albany address”) but, as with the first Albany address, is not allowed to reside there.  Petitioner indicated that the second Albany address is “only a small one bedroom studio style apartment” and that she was denied temporary assistance from the state because the second Albany address is “unacceptable” for J.L. and that petitioner would be reported to child protective services if J.L. continued to live there.  Petitioner indicated that she was trying to “get back on [her] feet and get a permanent residence.”

During the 2013-2014 and 2014-2015 school years, J.L. continued to attend Glenmont and receive transportation to and from the first Albany address.

By letter dated July 14, 2015, respondent’s former superintendent notified petitioner of respondent’s determination that J.L. was not entitled to continue attending school in respondent’s district.  The basis for the determination was as follows: “[y]our housing arrangement does not qualify as ‘homeless’ (individuals who lack a fixed, regular, and adequate nighttime residence) under the terms provided in the McKinney-Vento Homeless Assistance Act of 2001 – Title X, Part C of the No Child Left Behind Act.”

By letter dated July 21, 2015, petitioner appealed respondent’s initial determination.  Petitioner advised that she was out of work due to an injury and could not afford an apartment, and that she and J.L. were “shuffling back and forth” between the first Albany address, the second Albany address, and the Glenmont address.  She indicated that they “have no place to call home” and that “[e]verywhere we stay we are sharing a bedroom and/or sleeping on a couch.”  Petitioner indicated that she was unable to enroll J.L. in the Albany City School District since she did not have a utility bill in her name, and that the only way she can provide any stability for J.L. is with continued enrollment in respondent’s schools with transportation to and from the first Albany address.

By letter dated July 28, 2015, respondent’s former superintendent notified petitioner of respondent’s final determination that J.L. would not be permitted to return to Glenmont for the 2015-2016 school year.  The letter advised that J.L. was “erroneously allowed to remain at Glenmont for the last two school years, and should have been excluded from the District’s schools as of September, 2013.”

By letter dated August 20, 2015, petitioner attempted to “clarify some points that have been either inaccurate or incomplete.”  Petitioner indicated that she and J.L. and “lack a regular residence” and that J.L. “stays between several different addresses including [the first Albany address and the Glenmont address],” and that “[a]t these residences [J.L.] and I are doubled up with family (and sometimes friends).  We have no room of our own, no real place to call home.”  Further, petitioner advised that, although J.L.’s father “stays most of the time” at the first Albany address, which is his brother-in-law’s apartment, he does not legally reside there as he is not on the lease or utility bills and does not receive his mail there other than correspondence from respondent’s district. According to petitioner, J.L. stays with her father “as much as possible,” but “our situation is never certain.  I can be told at a moments [sic] notice that no one can stay over night [sic] leaving me to race around to find a babysitter and/or place to stay.”  Petitioner further clarified that, while she previously indicated that she could not stay at the Glenmont address due to issues with her stepfather, J.L. does occasionally stay at the Glenmont address and that there were “numerous days” that J.L. was transported to school by her grandmother from the Glenmont address but that petitioner “did not realize [she] could have the pick up/drop off locations changed regularly.”  In addition, petitioner requested that J.L. be transported to and from the second Albany address because petitioner had “been informed” that J.L. could no longer be transported to and from the first Albany address and that, after February 1, 2016, when the lease to the first Albany address expires, “no one will be able to stay” there.

By letter dated September 15, 2015, respondent’s interim superintendent issued a revised final determination indicating that, “[d]ue to a purported procedural oversight, ... [J.L.] has been re-admitted to Glenmont Elementary School” for 30 days, with transportation, and that J.L. would be excluded from the district’s schools effective October 16, 2015.  The basis for the determination was that J.L.:

1. is not, and has never been, a resident of Bethlehem; and
2. has not been a homeless student located in Bethlehem since November, 2012.

This appeal ensued.  Petitioner’s request for interim relief was granted on October 26, 2015.

Petitioner asserts that J.L. is a homeless child within the meaning of McKinney-Vento and is therefore entitled to attend respondent’s schools and receive transportation.  Petitioner claims that she and J.L. lack a fixed, regular, and adequate night-time residence and that they are sharing the housing of other persons due to loss of housing.  Petitioner claims that she and J.L. were forced to leave their in-district residence because they were evicted.  However, prior to that time, the in-district residence had become their permanent and regular residence.  Petitioner asserts that J.L.’s current housing outside the district is temporary and inadequate.

Respondent disputes that J.L. is homeless within the meaning of McKinney-Vento and also contends that petitioner has not established that J.L. is a district resident.  Respondent asserts that, even assuming that J.L. is a “homeless child” within the meaning of McKinney-Vento, the district has never been J.L.’s “district of residence” and has not been J.L.’s “district of location” since November 2012, and that the district’s legal obligation to educate and transport J.L. ended no later than June 2013.

I must first address a procedural issue.  By letter dated December 3, 2015, respondent requested permission pursuant to 8 NYCRR §276.5 to submit supplemental affidavits from respondent’s Glenmont Building Principal (“principal”) and respondent’s Director of Transportation (“director”) in order to apprise me of events that transpired after respondent filed its answer and initial set of affidavits and that could not have been submitted with the prior submission.  Similarly, by letter dated June 10, 2016, respondent requested permission pursuant to 8 NYCRR §276.5 to submit additional supplemental affidavits of the principal and director apprising me of events that transpired after the first set of supplemental affidavits.   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 cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner does not object to either request.   Accordingly, I have accepted both sets of supplemental affidavits from the principal and director apprising me of events that have transpired since the submission of respondent’s answer (see Appeal of Butler, et al., 50 Ed Dept Rep, Decision No. 16,103).

Turning to the merits, Education Law §3209(1)(a) defines “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 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).

Under the circumstances presented in this case, I find that J.L. fits the definition of “homeless child” under State and federal law.  The totality of the record indicates that J.L. does not have a fixed, regular, and adequate night-time residence.  While the record indicates that petitioner and J.L. have been living outside respondent’s district since October 2012, there is also evidence that such living arrangement is inadequate.  Indeed, in a sworn statement, petitioner’s friend explains that her one-bedroom residence at the second Albany address is “small” and that, although petitioner gets her mail there and has stayed there when the friend worked nights or was on vacation, petitioner does not reside there and is not allowed to reside there under the lease, a copy of which she provided.  Moreover, petitioner submits an unsworn letter from J.L.’s father, indicating that petitioner “has custody of [J.L.] and do [sic] not reside at [the first Albany address].”  Further, J.L.’s father indicated that his address is different from the first Albany address.  Petitioner also submits two additional unsworn letters from friends indicating that they have occasionally allowed J.L. to stay at their homes.  The record contains evidence that J.L. was consistently transported to and from the first Albany address from November 2012 through June 2015 and to and from the second Albany address for the 2015-2016 school year, with the exception of seven occasions on which petitioner’s mother provided transportation.  However, petitioner explains that she did not know she could request a change in transportation and that she often would have to arrange for friends or family members to get J.L. on or off the bus from different locations.

The record also contains evidence that this living arrangement exists because petitioner was forced to leave the Glenmont address due to “financial conditions” and/or domestic discord.  Under these circumstances, it is apparent that petitioner’s and J.L.’s housing is temporary and transitional and they cannot be said to have a fixed, regular, and adequate night-time residence (see Appeal of R.W., 49 Ed Dept Rep 73, Decision No. 15,962; Appeal of G.R., 49 id. 50, Decision No. 15,955).

Respondent does not specifically refute these contentions but rather appears to assert that petitioner is now a resident of Albany in light of J.L.’s continued transportation to the first Albany address from November 2012 through June 2015 and to the second Albany address for the 2015-2016 school year, and that respondent’s district has no further obligations in this regard.  Moreover, respondent asserts that, even assuming that J.L. is a “homeless child” within the meaning of McKinney-Vento, the district has never been J.L.’s “district of residence” and has not been J.L.’s “district of location” since November 2012, and that the district’s legal obligation to educate and transport J.L. ended no later than June 2013.

Pursuant to Education Law §3209(2)(a)(2) and §100.2(x)(2)(i)(b) of the Commissioner’s regulations, a homeless student is entitled to attend school in his or her school district of origin, which is defined as the school district “in which the homeless child was attending a public school on a tuition-free basis or was entitled to attend when circumstances arose which caused such child to become homeless...” (Education Law §3209[1][c]; 8 NYCRR §100.2[x][1][iii]).  Pursuant to Education Law §3209(2)(a)(1) and §100.2(x)(2)(i)(a) of the Commissioner’s regulations, a homeless student is also entitled to attend school in his or her school district of current location, which is defined as the school district “in which the hotel, motel, shelter or other temporary housing arrangement of a homeless child, ... is located, which is different from the school district of origin” (Education Law §3209[1][d]; 8 NYCRR §100.2[x][1][iv]).

According to respondent, once petitioner and J.L. relocated from the Glenmont address to Albany, “even if they remained homeless, Bethlehem then became [J.L.’s] district of former location.  As such, [J.L.] was entitled to remain in the District’s schools, with out-of-district transportation to and from [the first Albany address], only through the end of the then-current school year....”

However, petitioner asserts that, prior to being evicted from the Glenmont address in October 2012, the in-district residence had become their permanent and regular residence.  Indeed, petitioner states in her petition that she and J.L. “had lived at the Glenmont address for over a year with no problems” and that “the arrangement was steady.”  Respondent does not refute petitioner’s contentions in this regard.  The record as a whole indicates that, following the initial designation of respondent’s district as the district of current location in the fall of 2011, the Glenmont address became a fixed, regular, and adequate night-time residence (see e.g. Appeal of a Student With a Disability, 52 Ed Dept Rep, Decision No. 16,404).

On this record, petitioner became homeless upon being evicted from the Glenmont address in October 2012.  As such, respondent’s reliance on Education Law §3209(2)(c) is misplaced.  Education Law §3209(2)(c) provides as follows:

Notwithstanding the provisions of paragraph a of this subdivision, a homeless child who has designated the school district of current location as the district of attendance and who has relocated to another temporary housing arrangement outside of such district, or to a different attendance zone or community school district within such district, shall be entitled to continue the prior designation to enable the student to remain in the same school building until the end of the school year and for one additional year if that year constitutes the child's terminal year in such building (emphasis added).

Section 100.2(x)(2)(iii) of the Commissioner’s regulations contains language to the same effect.

On this record, while petitioner may have been homeless in July 2011 when she moved into the Glenmont address, such living arrangement became a fixed, regular and adequate residence prior to her eviction therefrom in October 2012.  Accordingly, upon becoming homeless again in October 2012, petitioner was entitled to designate respondent’s district as the school district of origin rather than school district of current location under Education Law §3209(2)(c) and 8 NYCRR §100.2(x)(2)(iii).  As such, petitioner’s daughter was entitled to attend respondent’s district and be provided with transportation for the duration of homelessness.  As discussed above, petitioner has established that her daughter fits the definition of “homeless child” and respondent has not refuted petitioner’s contentions in that regard.  The record lacks any evidence indicating that petitioner has found a permanent and adequate night-time residence, either inside or outside respondent’s district.

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

Respondent is free to conduct a residency investigation, but on this record, petitioner has carried her burden.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit J.L. to attend school in the Bethlehem Central School District for the duration of the homelessness without the payment of tuition and provide transportation services to J.L.

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