Appeal of N.B., on behalf of her children, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and transportation.

Decision No. 18,139

(July 6, 2022)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Half Hollow Hills Central School District (“respondent”) that her two children (the “students”) are 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.

Petitioner and the students previously resided within respondent’s district.  In 2020, respondent learned that the family had moved to a location outside of the district (the “out-of-district residence”).  Respondent deemed the students homeless at that time.

On June 15, 2021, a case manager with a non-profit housing organization wrote to respondent’s homeless liaison.  He explained that petitioner was a participant in a program designed to provide “single family home[s]” to “families who have experienced homelessness and/or have a very low income[,] which makes them vulnerable to becoming homeless.”  He further asserted that “families in the program stay an average of 2-5 years.”

In a letter dated July 30, 2021, respondent informed petitioner of the district’s determination that the students were not entitled to attend its schools as homeless students.  This appeal ensued.

Petitioner asserts that the students are homeless because they “participate in [a] transitional program due to [previously] being in [a] shelter.”  Petitioner further asserts that the program lasts for “2-3” years.  For relief, she seeks a determination that the students are entitled to attend respondent’s schools as homeless students.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the students are homeless within the meaning of McKinney-Vento or the Education Law.

Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “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 section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 students are homeless.  On appeal, petitioner offers no evidence whatsoever concerning the adequacy of the out-of-district address.  Absent such proof, I cannot find that the out-of-district residence is inadequate (Appeal of H.M., 60 Ed Dept Rep, Decision No. 17,903).

Additionally, there is insufficient evidence to conclude that the out-of-district residence is “temporary” within the meaning of Education Law § 3209 or McKinney-Vento.  Although the non-profit housing organization indicates that families participate in the program for an “average of 2-5 years,” there is no evidence that there is a fixed time by which petitioner will be required to vacate her current residence.  Therefore, petitioner has not met her burden of proving that the out-of-district residence is temporary (Appeal of E.B.-C., 60 Ed Dept Rep, Decision No. 17,872). 

Based upon the record before me, petitioner has failed to demonstrate that the students are homeless within the meaning of McKinney-Vento insofar as she has not proven that the students lack a fixed, regular and adequate nighttime residence or 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 students are not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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