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

Decision No. 18,012

(July 6, 2021)

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

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Bayport-Blue Point Central School District (“respondent”) that her son (“the student”), is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, 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, the student attended respondent’s schools as a district resident.  According to petitioner, in spring 2020 she and the student were evicted from their in-district residence.[1]  Thereafter, they relocated to a family member’s residence located outside of respondent’s district (the “out-of-district residence”).  Respondent learned of these circumstances in or around August 2020 and allowed the student to remain enrolled in its schools as a homeless student.

On or about September 11, 2020, respondent’s transportation coordinator and board-appointed residency officer (“residency officer”) conducted a home visit of the out-of-district residence to determine whether it was fixed, regular and adequate.  In an affidavit submitted in connection with this appeal, the residency officer describes his observations as follows:

• The residence was an apartment “attached” to a house owned by a family member.  The apartment had its own separate driveway and electric meter.
• The apartment had an entrance from both inside and outside the main building such that petitioner and the student did not have to walk through the main living area to access the apartment.
• The apartment had its own living space, kitchen, bathroom, and working utilities.  It also had a single, large bedroom with a king-size bed.  The apartment appeared organized and contained personal items.

By letter dated September 15, 2020, respondent’s administrator for pupil personnel/McKinney-Vento liaison (“liaison”) notified petitioner of the district’s determination that the out-of-district residence was fixed, regular and adequate.  Consequently, the liaison indicated that the student would be excluded from respondent’s schools effective October 16, 2020.  This appeal ensued.

Petitioner contends that she and the student are sharing the housing of other persons due to loss of housing, economic hardship, or similar reason and, therefore, are homeless within the meaning of McKinney-Vento.  Specifically, petitioner alleges that she was forced to move to the out-of-district residence after she was evicted from her in-district housing.  She maintains that she was thereafter unable to obtain affordable housing within respondent’s district for financial reasons and COVID-19 related hardships.  Petitioner seeks a determination that the student is homeless within the meaning of McKinney-Vento and State law and, thus, entitled to attend respondent’s schools and receive transportation.

Respondent contends that petitioner has failed to meet her burden of proving that the student lacks a fixed, regular, and adequate nighttime residence.

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 section 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).

Petitioner has failed to meet her burden of proving that the student is homeless under State or federal law.  The only information concerning the out-of-district residence provided by petitioner is that it was offered to her by a family member after a tenant “move[d] out in April” 2020.  As noted above, the district’s residency officer visited the out-of-district residence and concluded that it was fixed, regular, and adequate.  Petitioner has not submitted a reply to rebut respondent’s assertions or otherwise explained how her living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774).  Therefore, on this record, I cannot conclude that the out-of-district residence is inadequate within the meaning of McKinney-Vento (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; see also Appeal of E.M.F., 53 id., Decision No. 16,538; Appeal of T.B., 48 id. 4, Decision No. 15,774).  

Moreover, petitioner has not established that her residence is temporary or transitional.  Petitioner and the student have lived at the out-of-district residence since at least spring 2020.  The out-of-district residence is owned by a family member, and there is no evidence suggesting that there is a fixed time limit as to how long petitioner and the student can continue to reside therein (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).

Thus, based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular, and adequate nighttime residence.  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner indicates that “[i]t is and has always been [her] intention to move back to Bayport ....”  If or when this occurs, petitioner retains the right to reapply for the student’s admission as a district resident and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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