Appeal of A.S., on behalf of her children K.S.-S., A.S. and M.S., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency and transportation.

Decision No. 17,559

(December 20, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, David F. Kwee, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her children, K.S.-S., A.S. and M.S. (“the students”), 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.

The record reflects that prior to the events leading to this appeal, petitioner and the students resided in an apartment within respondent’s district (“in-district residence”).  In or about March 2017, after the sale of their in-district apartment building, petitioner and the students relocated outside the district (“out-of-district residence”). Respondent permitted the students to continue attending its schools as homeless students pursuant to McKinney-Vento for the duration of the 2017-2018 school year.

On June 14, 2018, respondent’s business administrator conducted a home visit of the out-of-district residence. By letter dated June 19, 2018, respondent’s business administrator informed petitioner of his determination that the students were neither district residents nor homeless within the meaning of McKinney-Vento and that the students would be excluded from the district’s schools effective June 30, 2018.[1]  The business administrator also informed petitioner that he would meet with her on June 21, 2018 to discuss the factual basis for his conclusions, and gave petitioner the opportunity to present additional documentation in support of the family’s residency in the district or homeless status.

A residency meeting was held on June 21, 2018 and petitioner was in attendance.  By letter dated June 29, 2018, respondent’s business administrator notified petitioner that based on his home visit and petitioner’s failure to submit any additional evidence to support her family’s residency in the district or homeless status, the students would be excluded from respondent’s schools effective June 30, 2018.  This appeal ensued.

Petitioner contends that she and the students are homeless within the meaning of McKinney-Vento because they were forced to leave their in-district address after their apartment building was sold.  Petitioner indicates that the family shares a one-bedroom apartment at the out-of-district address with other persons due to her loss of housing and/or economic hardship.

Respondent asserts that petitioner has not met her burden of proof and asserts that since March 2017, petitioner and the students have permanently resided with petitioner’s parents outside the district and are not homeless pursuant to McKinney-Vento.

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 ....[2]

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).

On this record, petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  In the State Education Department’s form “Petition for an Appeal Involving a Homeless Child [or] Youth,” petitioner checked the box indicating that she is sharing the housing of other persons due to loss of housing, economic hardship or similar reason.  However, petitioner submits no evidence of economic hardship and while she now alleges on appeal that she was forced to leave the in-district residence because “residents were forced to leave within 30 days of notice,” she presents no documentary evidence of this, such as an eviction notice or order.  Petitioner’s conclusory allegations, without more, do not establish that she is sharing the out-of-district residence with other persons due to a loss of housing, economic hardship or a similar reason, rather than a personal preference (Appeal of a Student with a Disability, 44 Ed Dept Rep 94, Decision No. 15,108). 

Petitioner has failed to prove that the out-of-district address is inadequate, such that she and the students currently lack a fixed, regular and adequate nighttime residence (see Appeal of R.V., 56 Ed Dept Rep, Decision No. 16,923; Appeal of Z.P. and D.P., 54 id., Decision No. 16,639; Appeal of T.C., 53 id., Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).  Petitioner alleges that, at the out-of-district residence, A.S., M.S., their father and petitioner occupy one bedroom with two twin beds, and that K.S.-S. and petitioner’s parents sleep in the living room, where petitioner’s parents share a twin bed and K.S.-S. sleeps on the couch.  However, other than her conclusory allegations, petitioner has provided no actual evidence of her family’s living arrangements at the out-of-district address (see Appeal of F.C., 57 Ed Dept Rep, Decision No. 17,243).  With respect to his home visit of the out-of-district residence, the business administrator avers that petitioner and her family had full access to the apartment.  He also avers that he viewed the bedroom and that the living room, which contained a daybed, was “divided by a divider.”  The business administrator explains that he was told that behind the divider was a sleeping area.  Based on this visit, the business administrator avers that, “[w]hile not ideal,” he found the out-of-district residence to be adequate.  Petitioner submits no reply or other evidence to refute these assertions and, under these circumstances, petitioner has failed to meet her burden of proof.

Moreover, petitioner has not established that her current residence is temporary or transitional.  The record reflects that petitioner and the students have been living at the out-of-district residence since March 2017.  In addition, respondent’s business administrator indicates that his home visit revealed no evidence that the living situation was temporary or transitional.  Instead, the building administrator asserts in his affidavit that at the home visit, when he asked petitioner if she had any concerns about the stability of her housing situation, she informed him that she “had no concerns about having to leave as she was residing with her parents, and declined any assistance as far as needing to find a new place to live.”  The record contains no evidence that petitioner and her family need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of A.N.Z., 53 id., 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).

Therefore, on this record, I find that respondent’s determination was not 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 the students at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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