Appeal of K.L., on behalf of her son M.B., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency and transportation.

Decision No. 17,730

(August 14, 2019)

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

ELIA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Bayport-Blue Point Union Free School District (“respondent”) that her son, M.B. (“the student”), is not eligible to attend the district’s schools tuition-free and receive transportation pursuant to the McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Prior to the events described in this appeal, the student attended respondent’s district based upon a representation that he resided at an address located within respondent’s district (“the in-district address”).  On September 4, 2018, petitioner informed respondent’s administrator for pupil personnel services, who serves as the district’s homeless liaison (“homeless liaison”), that she and her son had moved temporarily into an apartment in East Patchogue, New York, which is located outside of the district’s geographical boundaries (“the out-of-district address”).  Petitioner further asserted that she and her son were homeless.  Petitioner stated that she was not on the lease for the out-of-district address and did not pay rent, though she contributed to the electric bill.  Based upon these representations, the homeless liaison determined that the student was homeless and allowed the student to remain enrolled in respondent’s schools.

According to the record, on numerous occasions in February 2019, the student was unable to enter the apartment after being dropped off by the bus.  On February 6, 2019, respondent sent petitioner a letter requesting a copy of the lease agreement for the out-of-district address as well as a completed residency affidavit to confirm that the student lived there.  Petitioner provided the district with a copy of the lease for the out-of-district address, which listed petitioner as a tenant.  Petitioner also provided another lease-related document in which she signed as one of the tenants on June 19, 2018.

On March 4, 2019, the homeless liaison sent petitioner a letter informing her of the district’s determination that the student did not reside within respondent’s district and did not meet the legal definition of a homeless student.  The letter indicated that the student would be excluded from respondent’s schools as of April 5, 2019.

On April 2, 2019, petitioner met with the homeless liaison and submitted a copy of her driver’s license; a copy of a utility bill for the out-of-district address, which listed her as the responsible party; and legal documents associated with an action filed by the landlord for the out-of-district address against petitioner.  These documents indicated that a hearing would be held on April 3, 2019, at the Sixth District Court in Suffolk County.  According to the homeless liaison, petitioner stated at the meeting that she and the student were living with a friend at the out-of-district address that was located directly across the street from her place of employment.  Petitioner reported that her friend allowed her to stay at out-of-district address because it was convenient for petitioner to get to work.  Petitioner did not explain why her name was on the lease for the out-of-district address.  Petitioner told the homeless liaison that, as reflected in the court documents, she was due to appear in court the next day regarding her alleged non-payment of rent for the out-of-district address.

Thereafter, the homeless liaison determined that the student’s residence at the out-of-district address was fixed and regular based on petitioner’s statement that she and the student lived at the out-of-district address and the fact that she listed herself as a tenant on one of the lease documents.  This appeal ensued.

Petitioner asserts that the student is homeless within the meaning of McKinney-Vento and State law because she and her son are sharing the housing of other persons due to economic hardship.

Respondent contends that the student lives in a fixed, adequate and regular residence outside of the district and, further, that the petitioner has not met her burden of establishing that the student is homeless within the meaning of the McKinney-Vento Act.

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).

First, I must address the scope of my review.  In her March 4, 2019 letter, the homeless liaison informed petitioner of the district’s determination that the student was neither a district resident nor homeless.  While petitioner appeals respondent’s homelessness determination in this appeal, petitioner did not appeal respondent’s March 4, 2019, determination that the student does not reside within its district.  Therefore, that decision has become final and binding on petitioner for purposes of this appeal (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165; Appeal of Laventure-Louis and Louis, 56 id., Decision No. 17,027).

On this record, the student does not meet the definition of a homeless child under either State or federal law.  Initially, petitioner has not demonstrated that she and the student lost her housing at the in-district address.  The only explanation in the record for petitioner and the student’s changed living situation is petitioner’s statement that the out-of-district address is located directly across from her place of work.  Therefore, on this record, petitioner has failed to meet her burden of proving that she is sharing the housing of other persons due to a loss of housing or similar reason rather than a personal preference (see Appeal of A.S., 58 Ed Dept, Decision No. 17,559; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108).  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of district for homeless children are not applicable to the student’s circumstances (see Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,107; Appeal of D.R., 48 id. 358, Decision No. 15,793; Appeal of N.W., 47 id. 87, Decision No. 15,635, Appeal of G.D. and T.D., 45 id. 191, Decision No. 15,298).

Moreover, petitioner has not submitted any evidence suggesting that the out-of-district address is inadequate.  Although petitioner asserts in a conclusory manner that she is “sharing the housing of other persons,” petitioner offers no description of the characteristics of the out-of-district address, such as its number of bedrooms.  In this respect, respondent submits a floor plan for the apartment, which indicates that the apartment has two sizeable bedrooms, living spaces, a kitchen, and air conditioning.  Therefore, petitioner has failed to meet her burden of proving that the student lacks a fixed, regular and adequate nighttime residence (Appeal of T.C., 56 Ed Dept Rep, Decision No. 17,116; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).

Additionally, there is no proof that the student’s mother’s residence is temporary or transitional.  The record reflects that petitioner has resided at the out-of-district address as a tenant since July 2018.  Although petitioner submitted evidence of a pending legal action concerning her alleged nonpayment of rent, petitioner fails to allege or provide any evidence that the student would need to vacate the out-of-district address or that there is a fixed time limit as to how long she may remain (see Appeal of P.B., 58 Ed Dept, Decision No. 17,477; Appeals of V.C.B., 56 id., Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987).

Based upon the record before me, petitioner has failed to meet her burden of establishing 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 temporary living accommodations set forth in Education Law §3209.  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 behalf of her child at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE