Appeal of D.T., on behalf of her daughter T.A., from action of the Board of Education of the Freeport Union Free School District regarding residency and transportation.

Decision No. 17,558

(December 20, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Freeport Union Free School District (“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.

Petitioner originally registered the student in 2011, identifying an address located within respondent’s district as the address at which she and the student resided (the “first in-district address”).  On or about March 31, 2015, the district received returned mail marked “Return to Sender” which it had sent to petitioner at the first in-district address.  Respondent thereafter sent a letter to petitioner dated May 18, 2015 inquiring as to her current address and indicating that, if it did not receive proof of residency by May 26, 2015, it would assume that petitioner and the student no longer resided within its district.

On or about May 21, 2015, petitioner contacted the district and indicated that she had been evicted from the first in-district address and was “displaced.”  Respondent thereafter initiated an investigation into petitioner’s residency.  This surveillance evidence depicted petitioner and the student at an address located in Hempstead, New York which is located outside of respondent’s district (the “out-of-district address”).

On or about September 8, 2015, petitioner contacted the district and alleged that she and the student were homeless.  Petitioner completed a STAC-202 form and designated respondent as the school district of attendance.  Petitioner also indicated that she was currently residing at a “temporary” address located within respondent’s district (the “second in-district address”).  Respondent thereafter permitted the student to attend its schools as a homeless youth.

On or about October 20, 2017, respondent sent a letter to petitioner requesting that she “certify” her current address so that it could ensure the accuracy of its records by October 30, 2017.

On or about October 30, 2017, petitioner submitted a form to the district in which she asserted that she resided at the second in-district address.  As proof, petitioner submitted a copy of her New York State driver’s license which identified her address as the out-of-district address.  The driver’s license had been issued in 2016, when petitioner claimed to be residing at the second in-district address.  Upon receipt of this information, respondent conducted a search of records and discovered that petitioner possessed a current registration for a vehicle at the out-of-district address.  Respondent thereafter conducted further surveillance.  The surveillance depicted the student exiting the out-of-district address on three school day mornings.

In a letter dated June 14, 2018, respondent’s director of grants, funded programs and student achievement (“director”) indicated that the district had investigated the student’s residency and concluded that she did not reside within respondent’s district.  Accordingly, the director indicated that the student would be excluded from respondent’s schools effective June 22, 2018.

According to respondent, petitioner contacted the district to inquire what she could do to appeal the district’s residency determination.  A district employee informed petitioner that she could appeal the decision pursuant to Education Law §310.  While the June 14, 2018 letter is couched as a residency determination, it appears from the record that respondent also sought to exclude the student on the ground that she and petitioner were no longer homeless.  Because the letter did not advise petitioner of the availability of its homeless liaison or include a form petition to appeal the district’s homelessness determination, respondent “reinstated” the student and contacted petitioner on August 17, 2018 to discuss and to offer assistance in appealing its determination.  This appeal ensued.

Petitioner asserts that she and the student reside at the second in-district address due to economic hardship and that it is not fixed, regular or adequate.  Petitioner requests a finding that the student is homeless and, thus, entitled to attend respondent’s schools tuition-free.

Respondent asserts that its determination that the student does not reside within its district was rational and that petitioner has failed to meet her burden of proving that the student is homeless.  Therefore, respondent argues, the district’s determination was neither arbitrary nor capricious.

 Petitioner has not met her burden of proving that the student is homeless.  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).

Here, petitioner checked a box on a form petition indicating that she “is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner further asserts that she and the student “sleep in the living room.”  However, petitioner has produced no proof to support these assertions.  Petitioner has also failed to describe the nature of the residence, including its size and number of bedrooms.  While the allegation that petitioner and the student “sleep in the living room” is certainly concerning, the record contains no evidence whatsoever suggesting that this is compelled by the characteristics of the house or its number of inhabitants (cf. Appeal of C.M., 57 Ed Dept Rep, Decision No. 17,131).  Without any specific information about the adequacy of petitioner and the student’s living arrangements, I cannot find that the out-of-district address is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).

Moreover, petitioner does not allege, and there is no evidence suggesting, that petitioner or the student need to vacate the second in-district address 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 No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).  Therefore, the appeal must be dismissed.

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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