Appeal of D.D. and G.D., on behalf of their children D.D., D.D. and S.D., from action of the Board of Education of the Cold Spring Harbor Central School District regarding residency and transportation.

Decision No. 17,416

(June 25, 2018)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Cold Spring Harbor Central School District (“respondent” or “board”) that their children are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioners’ children, D.D., D.D., and S.D. (the “students”), enrolled in respondent’s schools in December 2014.  At that time, petitioners indicated that they lived at an address within the district (“in-district residence”).  In January 2017, a residency meeting was held, at which time petitioners met with the assistant superintendent for student services and human resources (“assistant superintendent”), the superintendent, and the district’s homeless liaison.  Following that meeting, by letter dated January 3, 2017, the superintendent informed petitioners of his determination that petitioners lived at an address outside the geographical boundaries of the district (“out-of-district address”), that such residence was fixed, regular and adequate, and that the students were not considered homeless pursuant to McKinney-Vento.  Petitioners appealed that determination pursuant to Education Law §310 and the students attended school in respondent’s district during the pendency of petitioners’ appeal.  By decision dated July 19, 2017, I dismissed the appeal as untimely, noting in dicta that petitioners had not carried their burden of establishing that the students were homeless within the meaning of McKinney-Vento (Appeal of D.D. and G.D., 57 Ed Dept Rep, Decision No. 17,127). 

Respondent indicates that, thereafter, in September 2017, petitioners sought to continue the students’ education in the district.  In support of this request, petitioners provided the assistant superintendent with an unsworn personal statement from petitioner D.D., an affidavit from her daughter, and a guarantor agreement for the out-of-district address.  Respondent states that, based upon the evidence submitted and the prior Commissioner’s decision, the assistant superintendent determined that petitioners’ circumstances had not changed since the issuance of the Commissioner’s decision.  By email dated September 6, 2017, the assistant superintendent informed petitioners of her determination that the out-of-district residence continued to be adequate housing and, as such, the students were not district residents and not homeless within the meaning of McKinney-Vento.  By reply email on the same date, petitioners requested information regarding an appeal to the superintendent.  By letter dated September 7, 2017, the assistant superintendent informed petitioners that the district had determined that the students were not eligible for assistance under McKinney-Vento as the out-of-district residence was a fixed, regular, and adequate nighttime residence and petitioners had not provided any information as to why they would be required to vacate the residence.  The assistant superintendent’s letter also advised petitioners that they could appeal such determination to the Commissioner of Education within 30 days.  This appeal ensued.

Petitioners contend that they and their children are homeless within the meaning of McKinney-Vento and that the students are therefore entitled to continued enrollment in respondent’s district.  Petitioners allege that their current residence is temporary and transitional housing because the guarantor will not provide the apartment indefinitely, the residence is crowded, and they intend to move back to the district.

Respondent asserts that the proceeding is an “application to reopen” that is untimely and that petitioners fail to demonstrate that the Commissioner’s decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made.  Alternatively, respondent contends that the appeal should be dismissed under the doctrines of collateral estoppel and res judicata, and that petitioners fail to demonstrate a clear legal right to the relief requested or that respondent’s actions were arbitrary, capricious or an abuse of discretion.  Respondent further maintains that petitioners and their children are not homeless within the meaning of McKinney-Vento and that it has acted in a lawful manner in enforcing the eligibility requirements of McKinney-Vento.

I must first address the procedural issues.  Respondent argues that petitioners’ reply is untimely and contains affidavits and exhibits that should have been included with the application.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).  The record indicates that petitioners sought, and were granted, an extension of time to serve their reply until October 24, 2017.  Despite receiving the extension, the record indicates that petitioners submitted the reply to the district’s homeless liaison on October 25, 2017, and petitioners provide no reason for the delay.  The reply, therefore, is untimely and I have not considered it.  Further, 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, even if the reply had been timely, I would not have considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  As such, I need not consider respondent’s sur-reply.

Respondent argues that this proceeding is an application to reopen my July 19, 2017 decision in Appeal of D.D. and G.D. (57 Ed Dept Rep, Decision No. 17,127), and that, as such, it is untimely.  Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).  The regulation further states that an application to reopen must be made within 30 days of the date of the underlying decision (Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395).

While I agree with respondent that, in the instant appeal, petitioners largely restate the facts set forth in the prior appeal and attempt to reargue the issues presented therein, I cannot conclude on this record that petitioners seek to reopen my prior decision.  Although there is no indication in the record that petitioners submitted a new application for admission to the district’s school in September 2017, the record does indicate that petitioners informed respondent in or about September 2017 that they intended to move into the district and requested a “courtesy enrollment” for the children until the move occurred.  By letter dated September 7, 2017, the assistant superintendent informed petitioners that their children “are not eligible for assistance under” McKinney-Vento and advised them that they could appeal this decision to the Commissioner within 30 days pursuant to Education Law §310.  Petitioners, who appear pro se, commenced this appeal the next day, September 8, 2017.  The burden is on respondent to establish any affirmative defenses, and on this record, in light of the fact that respondent provided petitioners with a September 7, 2017 letter in which it communicated its decision regarding McKinney-Vento eligibility and advised petitioners of their right to appeal such decision to the Commissioner within 30 days, I will not dismiss petitioners’ appeal of respondent’s September 7, 2017 determination as untimely (see e.g. Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269).

Nevertheless, the appeal must be dismissed on 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Although petitioners argue herein that they are homeless because their apartment is crowded and they intend to return to the district, as they did in the prior appeal, they also admit that the students have been living with them continuously at the out-of-district residence since at least December 2016, just prior to the commencement of the prior appeal. 

In support of their claim, petitioners also submit various documents, including a personal statement from petitioner D.D., a notarized letter from one of petitioners’ children, and copies of various pieces of mail bearing two different addresses that are neither the in-district nor the out-of-district addresses.  In petitioner D.D.’s personal statement, she claims that their current apartment is temporary because a family member co-signed for the apartment and the lease term will expire within 90 days of September 6, 2017, but provides no evidence to support such claim.  Petitioners also allege that 10 people live in their three bedroom apartment but have provided a notarized letter from one of their children stating that eight people live in the apartment, and an additional two individuals “are there sometimes.”  Petitioners provide no other documentation to support such claims and no details about the children’s sleeping arrangements.  While it is conceivable that petitioners could make a case that the apartment is inadequate due to overcrowding (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038), proof that overcrowding exists is lacking on this record.  Without proof, petitioners’ conclusory statements are insufficient to meet their burden of proof on this issue (see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).  On this record, petitioners have failed to meet their burden of proving that the residence is inadequate (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of T.B., 48 id. 4, Decision No. 15,774).

Moreover, petitioners have not established that the current residence is temporary or transitional.  Petitioners assert that the current living arrangement is temporary because the lease term will expire within 90 days of September 6, 2017, but petitioners provide no evidence to support such claim.  There is no independent evidence that petitioners need to vacate the apartment or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).  Further, there is no evidence of intent to relocate into the district in the future beyond petitioners’ mere conclusory statements to that effect.

Based on the record before me, petitioners have failed to demonstrate that the students lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) and §100.2(x) of the Commissioner’s regulations.  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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