Appeal of V.B., on behalf of his child A.V., from action of the Board of Education of the Herricks Union Free School District regarding residency and transportation.

Decision No. 17,421

(June 26, 2018)

The Law Office of Suzanne Myron, attorneys for petitioner, Suzanne Myron, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Herricks Union Free School District (“respondent”) that his 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.

In or about November 2016, petitioner and his family were evicted from their residence within the district due to nonpayment of rent.  Thereafter, petitioner and his family moved to a location outside of respondent’s district in Garden City Park, New York (the “out-of-district address”).  In or about December 2016, respondent deemed the student homeless and permitted him to continue attending its schools on a tuition-free basis.

According to the record, between November 2016 and February 2017, petitioner and his wife were certified as victims of human trafficking by various federal and state agencies, including the New York State Office of Temporary and Disability Assistance (“OTDA”) and the New York State Department of Labor (see Social Services Law §483-cc).

Respondent’s homeless liaison (“liaison”) met with petitioner on August 17, 2017 regarding the student’s homeless status.  According to the liaison, petitioner informed her that he and his family continued to live at the out-of-district address.  Petitioner further stated that they lived on the lower level of a house, with their own entryway, kitchen, bathroom and two bedrooms.  Based upon this description, the liaison determined that the student was not homeless.

In a letter dated August 30, 2017, the liaison indicated that the student would be excluded from respondent’s schools as of September 30, 2017 because he was not a resident of the district and did not qualify as homeless pursuant to McKinney-Vento.  This appeal ensued.

Petitioner contends that he and his family live in a residence which is “no different than a shelter.”  Petitioner further asserts that he, his wife and the student “sleep in one room at night because it is the only room with sufficient air circulation.”  Petitioner also contends that the second bedroom has only “one small window” and “no air-conditioning.”  Petitioner additionally asserts that he and his family were not able to bring all of their belongings to the out-of-district address, and that many belongings remain in storage at a friend’s house.  Petitioner claims that the owner of the out-of-district house “may be moving out very soon”; that the owner is “in the process of buying a home in New Jersey”; and that, when the owner moves out, the owner “could be renting out the entire home.”

Respondent contends that petitioner has not met his burden of proving that the student’s residence is not fixed, regular, and adequate.

First, I must address a procedural issue.  Petitioner submitted a reply in this matter.  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.

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).

Initially, petitioner complains that the district’s August 30, 2017 letter communicating its determination that the student was not homeless was “very confusing,” and did not “detail [] the entire process in making an appeal to the [C]ommissioner.”  I have reviewed the August 30, 2017 letter and find that it suffiently informed petitioner of the district’s determination and his right to appeal such determination.  Moreover, the record reflects that the  liaison contacted petitioner in September 2017 to offer her assistance in filing an appeal and, in fact, rendered such assistance.  Therefore, petitioner’s contentions in this regard are without merit.

Turning to the merits, petitioner has failed to meet his burden to show that the student is homeless under State or federal law.  The record reflects that petitioner, his wife and the student reside in the lower level of a house which includes two bedrooms, a kitchen, a living room, and a bathroom.  Although petitioner claims that he, his wife and the student all sleep in one of the bedrooms because it is the only bedroom “with sufficient air circulation” and that the other bedroom lacks air conditioning, petitioner has not explained or proven that the other bedroom is uninhabitable.  In particular, although petitioner complains that the second bedroom lacks air conditioning, the record shows that this room has a window.

Additionally, petitioner asserts that the student is homeless because “[w]e were not able to store all of our belongings in a house”; that some of the belongings are stored “with a friend”; and that he and his family “live out of packing boxes.”  In this respect, petitioner submits an affidavit from his friend, who asserts that he allows petitioner and his family to “use space in my garage to store clothing and household items they do not immediately need.”  I do not find that these assertions establish that the out-of-district address is inadequate or temporary.  The pictures of each room submitted by petitioner depict few boxes, and petitioner has not established, through these photographs, allegations or any other evidence, that the residence is inadequate (see e.g. Appeal of E.B., 47 Ed Dept Rep 94, Decision No. 15,638).

Moreover, petitioner has not established that the student’s current residence is temporary or transitional.  The record indicates that petitioner and his family have been residing at the out-of-district address for approximately eight months prior to August 30, 2017, and it contains no evidence that they 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 No. 16,404).  Although petitioner asserts that the owner “may” be moving out soon and “could” rent out the space where he and his family live, petitioner has provided no proof to support these assertions.  In any event, such speculation does not demonstrate that petitioner’s loss of housing is imminent, or that he and his family must vacate the residence by a date certain.

Petitioner also contends that his lack of a lease for the residence is probative of his homeless status.  However, the mere fact that petitioner does not have a written lease for the out-of-district address does not establish that it is temporary or transitional (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,621; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Finally, although not framed as such, petitioner and his wife’s status as victims of human trafficking does not, ipso facto, render them homeless within the meaning of McKinney-Vento.  Pursuant to the Social Services Law, OTDA is authorized to “enter into contracts with non-government organizations for providing services to pre-certified victims of human trafficking,” which may include:

[C]ase management, emergency temporary housing, health care, mental health counseling, drug addiction screening and treatment, language interpretation and translation services, English language instruction, job training and placement assistance, post-employment services for job retention, and services to assist the individual and any of his or her family members to establish a permanent residence in New York state or the United States (Social Services Law §483-bb[b]). 

The statute does not, however, dictate eligibility under McKinney-Vento and corresponding portions of New York State law, which afford certain rights to students who qualify as homeless under statutory criteria.

While I am sympathetic to petitioner’s situation, based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time 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 the student was not homeless was 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 his 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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