Appeal of K.P., on behalf of her children A.P., A.P., A.P., R.P. and J.P., from action of the Board of Education of the Orchard Park Central School District regarding residency and transportation.

Decision No. 17,661

(June 28, 2019)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ELIA, Commissioner.--Petitioner[1] appeals the decision of the Board of Education of the Orchard Park Central School District (“respondent”) that her children, A.P., A.P., A.P., R.P., and J.P.  (“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 tuition-free or receive transportation.  The appeal must be dismissed.

The record indicates that, prior to September 2017, petitioner’s children were enrolled as resident students in the district.  At some point prior to the start of the 2017-

2018 school year,[2] petitioner and the students moved from their residence within the district (the “in-district residence”) to a residence outside the district (the “out-of-district residence”).

State Education Department “STAC-202” forms (Designation of School District of Attendance of a Homeless Child) completed by petitioner and dated September 6, 2017 designated respondent as her children’s school district of attendance.[3]  The students were enrolled in the district as homeless students for the 2017-2018 school year and have remained enrolled there during the pendency of this appeal.

By letter dated July 31, 2018, respondent’s director of special programs wrote to petitioner seeking proof that her children continued to qualify for enrollment as homeless students.  On August 15, 2018, petitioner met with the district’s homeless liaison.  By letter dated August 16, 2018, respondent’s superintendent informed petitioner that:

... you have resided at [the out-of-district residence] since September 6, 2017.  This home is a fixed, regular, and adequate nighttime residence.  Therefore, you no longer qualify for homeless status within our district.  You have also indicated that you are paying rent at this location and have been since September 2017.

The letter further advised that petitioner’s son, R.P., was eligible to complete his senior year at the district’s high school.  Finally, the letter stated that petitioner’s children, A.P., A.P., and J.P., would be excluded from the district’s schools after August 24, 2018.  This appeal ensued.[4]

Petitioner contends that the students are homeless and, therefore, should be allowed to continue to attend school in the district.  Petitioner asserts that she and the students are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”

Respondent argues that petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested.

The appeal must be dismissed as moot with respect to R.P. and J.P.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  In a memorandum of law submitted on behalf of respondent, counsel for the district indicates:

As indicated in its letter dated August 16, 2018, [the district] does not dispute that [R.P.] is permitted to remain a student enrolled in the District on a tuition-free basis based on the fact that he is a senior.  Moreover, after the Petition was filed, [petitioner’s husband] submitted information to the District establishing that he now resides within the District with [R.P. and J.P.].  Therefore, this appeal is moot as it relates to [R.P. and J.P.] because they have been admitted as residents of the District (and not as homeless students).  However, based on information available to the District, [A.P., A.P., and A.P.] still reside outside the District with Petitioner [K.P.].

Therefore, with respect to R.P. and J.P., the appeal must be dismissed as moot.

With respect to A.P., A.P., and A.P., 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:
3. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
4. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[5]

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 the record before me, petitioner has not established that A.P., A.P., and A.P. meet the definition of homeless children under State or federal law.  Petitioner asserts that she and the students lack “a fixed, regular, and adequate nighttime residence” and are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  However, petitioner has failed to provide any description of the family’s living arrangements or information about the adequacy of the out-of-district residence.[6]  Further, according to respondent’s answer, verified by the district’s superintendent, “[w]hen asked if she considered the [out-of-district] residence adequate housing, [petitioner] stated that it was, but that she wanted to move back to [the district] eventually.”  Petitioner did not submit a reply or otherwise respond to these allegations.  Therefore, on this record, I find that petitioner has not met her burden of proving that the family’s current residence is inadequate (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeal of A.M., 57 id., Decision No. 17,146; Appeal of D.W., 56 id., Decision No. 16,924).

Moreover, petitioner has not established that the family’s current residence is temporary or transitional.  Petitioner, A.P., A.P., and A.P. have been living at the out-of-district residence since September 2017; petitioner does not claim or demonstrate that she and the children must vacate their current residence or that there is a limit as to how long they may remain there (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeals of V.C.B., 56 id., Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987).

Accordingly, based on the record before me, I find that petitioner has not met her burden of proving that A.P., A.P., and A.P. lack a fixed, regular and adequate nighttime residence.  Therefore, respondent’s determination that they are not homeless was not arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to the district on the students’ behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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