Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Mechanicville regarding residency and transportation.

Decision No. 17,412

(June 18, 2018)

Girvin & Ferlazzo, P.C., attorneys for respondent, Tara L. Moffett, Esq., of counsel

Petitioner challenges the determination of the Board of Education of the City School District of the City of Mechanicville (“respondent”) that her child (the “student”) is not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Prior to the events described in this appeal, petitioner, her spouse and their three children, including the student who is the subject of this appeal, resided within respondent’s district.  In or about September 2017, a letter addressed to petitioner was returned to the district as undeliverable.  The principal of respondent’s elementary school contacted petitioner and her spouse to clarify that the letter had been mailed to their current address.  Petitioner’s spouse confirmed that the address was his family’s current address.  However, the principal subsequently contacted petitioner’s landlord, who informed him that the family had moved out in July 2017.  After initially claiming to reside at two additional locations within respondent’s district, petitioner and her spouse eventually admitted that they and their family, including the student, resided at an address within the City of Mechanicville, that turned out to be located outside of the district’s geographical boundaries (“the out-of-district address”).  The principal explained that because petitioner and her spouse did not reside within respondent’s district, their children were not entitled to attend respondent’s schools on a tuition-free basis.  In a letter to petitioner’s spouse dated September 20, 2017, the principal stated that “you have to live in the Mechanicville City School District in order for your kids to attend school here,” and that the students would be excluded from the district after September 22, 2017.

On September 25, 2017, petitioner’s spouse provided the principal with a document confirming that two of his children had been registered with the Shenendehowa Central School District (“Shenendehowa”).  These two children were unenrolled from respondent’s district on or about September 28, 2017.  Respondent subsequently realized that petitioner’s third child, the student who is the subject of this appeal, continued to attend its high school.

On September 28, 2017, respondent’s high school principal spoke with petitioner’s spouse by telephone, informing him that the student was not a resident of respondent’s district and must be enrolled in Shenendehowa, his district of residence.  In this phone call, petitioner’s spouse asserted that the student was homeless and that he would like the student to remain enrolled in respondent’s district. 

On September 29, 2017, petitioner’s spouse emailed respondent’s homeless liaison and indicated that the student was homeless.  Respondent thereafter allowed the student to remain enrolled in its high school.

On October 16, 2017, the superintendent issued a written determination indicating that the student was not a district resident nor was he homeless within the meaning of McKinney-Vento.  With respect to the student’s alleged homelessness, the superintendent stated that petitioner had not provided documentation: (1) that the student was homeless due to economic hardship; (2) that the family was currently sharing the housing of others; (3) that the student’s current housing was not fixed, regular or adequate; (4) that the student was housed within a shelter or similar accommodation; or (5) that the student’s current living situation was transitional.  The superintendent also stated that petitioner had not explained why her two other children residing at the same address had been admitted to Shenendehowa, the district in which the housing was located, as resident students.  With regard to petitioner’s claim that the out-of-district address was temporary or transitional, the superintendent stated that petitioner had provided no evidence of a specific time limit as to how long the family can reside in its current housing, that petitioner had provided no proof that the family is facing an impending removal and eviction, and that petitioner had not submitted proof that she had been actively attempting to obtain permanent housing within respondent’s district.  This appeal ensued.

Petitioner contends that the student is homeless because their family’s current residence is “transitional.”  In this respect, petitioner contends that the landlord at their last address, which was located within respondent’s district, informed her family that they “would have to move in May and [that we] were given a short time frame to find adequate housing for our family.”  Petitioner further asserts that she has an agreement to rent the current address from “month to month.”  Petitioner further claims that her spouse lost his job in 2015 for eight months and lost a subsequent job in August 2017, and that the family has suffered economic hardship as a result.  Petitioner additionally argues that McKinney-Vento requires that school districts act in the “youth’s best interest,” and that the student’s continued enrollment in respondent’s district is in his best interest.  Petitioner requests a determination that the student is homeless and entitled to remain enrolled in respondent’s schools without payment of tuition and receive transportation.

Respondent contends that petitioner has failed to meet her burden of proving that the student’s residence is not fixed, regular or adequate.

First, I must address two procedural matters.  Respondent objects to the scope of petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been 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 the scope of petitioner’s memorandum of law, which contains new evidence and assertions.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Therefore, I have not considered the newly-added assertions and exhibits contained within petitioner’s memorandum of law.

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 nighttime residence, including a child or youth who is:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

3. abandoned in hospitals; or
4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings....[1]

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).   

Petitioner has failed to meet her burden of proving that the student is homeless under State or federal law.  In this appeal, the record is completely devoid of any proof concerning petitioner’s current living arrangement, other than allegations in an attachment to the petition that the housing is temporary and transitional and the “[a]greement is month to month.”  Indeed, petitioner answered “No” to the question: “[a]re child’s/youth’s parent(s) or legal guardians homeless?” on the State Education Department’s form petition for an appeal involving a homeless child or youth (see Appeal of T.C., 55 Ed Dept Rep, Decision No. 16,502).  Consequently, petitioner has failed to prove that the student’s current address is not fixed, regular or adequate.  There is no information whatsoever about this address in the record and, thus, no proof relating to the adequacy of such residence.  Although petitioner suggests that the residence is temporary because she rents it on a month-to-month basis and intends to return to the district, petitioner’s month-to-month rental arrangement and intention to move back to respondent’s district do not make the residence temporary or transitional (Appeal of M.W., 46 Ed Dept Rep 151, Decision No. 15,471).  Therefore, petitioner has failed to meet her burden of proving that she lacked a fixed, regular and adequate nighttime residence.

Additionally, there is no proof that petitioner’s current residence is temporary or transitional.  Other than her assertions that the residence is “temporary” and rented on a month-to-month basis, petitioner has not submitted any evidence concerning her arrangement with her landlord.  Consequently, the record contains no evidence that petitioner or the student need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).

Finally, petitioner’s attempted reliance on certain statements contained in McKinney-Vento is misplaced as these provisions pertain to students who meet McKinney-Vento’s definition of “homeless children and youths.”  Petitioner quotes selected statements from 42 USC §11432(g)(3) which indicate that certain enrollment decisions must be made “according to the child’s or youth’s best interest” and asserts that, here, remaining within respondent’s district is in the student’s best interest.  However, these provisions apply only to students who are homeless (see Education Law §3209[2][f][3]) and, as described above, petitioner has failed to meet her burden of proof in this respect. 

Thus, based upon the record before me, I am constrained to find that petitioner has failed to demonstrate that the student is homeless within the meaning of McKinney-Vento in that he lacks a fixed, regular and adequate nighttime residence or that the student is living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Despite the deficiencies in the present record, the record suggests that petitioner and her family have experienced economic hardship and may be at risk of becoming homeless.  Although I am sympathetic to petitioner and her family’s circumstances, she has not submitted sufficient evidence in this appeal to prove that the student is currently homeless.  Accordingly, I cannot find respondent’s determination that the student was not homeless to be 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 child at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration. 

THE APPEAL IS DISMISSED.

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