Appeal of Y.P., on behalf of her children, from action of the Board of Education of the South Huntington Union Free School District regarding residency and transportation.

Decision No. 18,146

(July 7, 2022)

Ingerman Smith, L.L.P., attorneys for respondent, David F. Kwee, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the South Huntington Union Free 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, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The students previously attended respondent’s schools as district residents.  In January 2017, petitioner and the students moved to a location outside of the district.  Respondent deemed the petitioner and the students homeless.  Petitioner and the students relocated to a second out-of-district address in November 2017, and then a third out-of-district address in September 2019 (the “out-of-district residence”), where they continue to reside.

In a letter dated April 14, 2021, respondent’s assistant superintendent for student services (“assistant superintendent”) requested that petitioner provide additional information concerning her housing.  The assistant superintendent included examples of the evidence petitioner could submit to demonstrate that her residence was not fixed, regular, or adequate.  Petitioner did not respond to this letter.

In a letter dated May 20, 2021, the assistant superintendent informed petitioner of her determination that the students were no longer eligible to attend respondent’s schools as homeless students because the out-of-district residence constituted a fixed, regular, and adequate nighttime residence.  This appeal ensued.

Petitioner asserts that the students are homeless because she and her family are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.  For relief, she seeks a determination that the students are entitled to attend respondent’s schools and receive transportation.

Respondent denies 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.”   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 the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR § 275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

On this record, I conclude that petitioner has not proven that the out-of-district residence is inadequate.  Petitioner merely asserts that she is sharing this housing with three other individuals and “currently sharing a bedroom” with her children.  Without further information or explanation, petitioner has not met her burden of proving that her housing is inadequate (see Appeal of M.G., 60 Ed Dept Rep, Decision No. 17,871; Appeal of S.R., 58 id., Decision No. 17,663; Appeal of F.C., 57 id., Decision No. 17,243).

Additionally, there is no evidence that petitioner’s residence is temporary or transitional.  The record reflects that petitioner has resided at the out-of-district residence since 2019.  Petitioner does not assert, and the record contains no evidence indicating, that she or the students need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).

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 she lacks a fixed, regular, and adequate nighttime residence or that she is 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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