Appeal of C.M., on behalf of her daughter K.M., from action of the Board of Education of the East Irondequoit Central School District regarding residency and transportation.

Decision No. 17,664

(June 28, 2019)

Ferrara Fiorenza P.C., attorneys for respondent, Allison L. Marley, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Irondequoit Central School District (“respondent”) that her daughter K.M. (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Although the record in this appeal is sparse, it reflects that, prior to the events described in this appeal, the student attended respondent’s schools.  By letter dated June 20, 2018, respondent’s assistant school business administrator (“administrator”) informed petitioner of his determination that the student was “no longer homeless” and that petitioner and the student were neither district residents nor homeless.[1]  The administrator further indicated that the student would be excluded from respondent’s schools for the 2018-2019 school year.[2]  This appeal ensued.

Petitioner claims that she and the student are sharing the housing of other persons due to loss of housing, economic hardship or similar reason, and are therefore homeless within the meaning of McKinney-Vento.  Specifically, petitioner asserts that she and the student share “a basement bedroom” with “her baby brothers [and] sister [sic] in a house that her aunt and family live in.”  Petitioner maintains that she had “to move in with family” after the student’s father left.  Petitioner seeks a determination that the student is homeless within the meaning of McKinney-Vento and, thus, entitled to attend respondent’s schools tuition-free.

Respondent did not submit a timely answer in this appeal, but requests permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations.  A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).

In its verified answer, respondent claims that respondent served the answer nine days late due to an “administrative mistake” made by an individual who was temporarily serving as the district’s homeless liaison when the homeless liaison was on emergency medical leave.   Respondent’s counsel explains that the temporary liaison “mistakenly did not forward the [p]etition upon receipt to [r]espondent’s counsel or the [s]uperintendent of [s]chools.” Respondent further contends that the late answer should be accepted because the student remained enrolled in its schools pursuant to the automatic stay provisions of McKinney-Vento and State law, and, thus, suffered no prejudice as a result of the delay (see 42 USC §11432[g][3][E}; Education Law §3209[5][c]).  While I am sympathetic to the fact that the homeless liaison was on medical leave, I decline to deem respondent’s “administrative mistake” a valid excuse for the late answer (see Appeal of Brarens, et al., 51 Ed Dept Rep, Decision No. 16,317).  While I recognize that where, as here, a dispute arises surrounding the students’ McKinney-Vento eligibility, the students are entitled to immediate enrollment in respondent’s district pending final resolution of the dispute, including all available appeals, I find that respondent has not established a sufficient excuse for its late answer on this record.    Consequently, I have not considered those portions of respondent’s memorandum of law which cite or rely upon respondent’s answer or supporting documents.

Additionally, 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).  As stated above, I have not accepted respondent’s late answer.  Consequently, I have not considered petitioner’s reply.[3]

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 ....[4]

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 has failed to meet her burden to establish that the student is homeless under State or federal law.  In the petition, petitioner merely indicates that she “is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  She also states that she and the student share housing with the student’s aunt, two cousins and the aunt’s fiancé.  She further asserts that the student is sharing a basement bedroom with “myself, her baby brothers and sister [sic] in a house that her aunt and family live in.”  Other than these conclusory statements, petitioner has failed to provide any evidence concerning the adequacy of the residence.  Specifically, petitioner does not provide any details or evidence about the adequacy of the living conditions (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).

Moreover, petitioner asserts that she is experiencing financial problems because her children’s father “left [them], with no way to make rent.”  While it is unfortunate that petitioner’s financial situation is unstable and that may impact her ability to pay rent, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808). 

Additionally, petitioner does not assert, and there is no evidence in the record suggesting that petitioner or the student need to vacate the residence 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, based upon the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular and adequate nighttime 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 respondent’s determination that the student is not homeless to be 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 the student’s 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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