Appeal of S.R, on behalf of her children, from action of the Board of Education of the Farmingdale Union Free School District regarding residency and transportation.

Decision No. 18,162

(July 25, 2022)

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Farmingdale Union Free School District (“respondent”) that her 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.

The students were enrolled in respondent’s district on or about September 4, 2018.  At that time, petitioner identified their address as a location within the district and asserted that the students were homeless.  Respondent thereafter enrolled the students as homeless students.  

On or about November 4, 2020, petitioner informed respondent that she and the students had moved to a new residence located outside of respondent’s district (“the out-of-district residence”).  Respondent continued the students’ enrollment as homeless students.

By letter dated November 22, 2021, respondent’s assistant to the superintendent for business (“assistant superintendent”) notified petitioner of the district’s initial determination that the out-of-district residence was fixed, regular, and adequate.  The assistant superintendent informed petitioner that she could submit additional information regarding the students’ housing status on or before December 2, 2021, after which time a final determination would be made.

On December 1, 2021, petitioner met with the district’s director of guidance as well as its homeless liaison.  At this meeting, petitioner submitted copies of a text message conversation, allegedly between her and her landlord, suggesting that the landlord was considering selling the out-of-district residence.

By letter dated December 3, 2021, the assistant superintendent notified petitioner of the district’s final determination that the out-of-district residence was fixed, regular, and adequate and that the students would be excluded from respondent’s schools, effective June 24, 2022.  This appeal ensued.

Petitioner claims that she is homeless because she and the students share the housing of other persons due to a loss of housing, economic hardship, or a similar reason.

Respondent contends that petitioner and the students are not homeless and that petitioner has failed to meet her burden of proof.

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]). 

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

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.  Petitioner asserts that she and the students lack a fixed, regular, and adequate night-time residence and are sharing the housing of other persons due to economic hardship or other similar reasons.  Petitioner states that she is “currently unemployed due to the pandemic” and has not “been able to find permanent housing.”   Petitioner further states that she and the students are living temporarily with others, including the students’ stepfather, uncle, stepsister, and another individual (“the roommate”).[2]  She indicates that two of the students share a bedroom; that the uncle and the roommate each have their own bedrooms; and that she, the stepfather, one of the students, and his stepsister share a room.

Other than these assertions, petitioner submits no other evidence concerning the nature of the out-of-district residence, such as a description of its living areas.[3]  The fact that petitioner and the students are sharing this residence with others does not automatically render the families homeless (see e.g. Appeal of M.G., 60 Ed Dept Rep, Decision No. 17,871).  Therefore, I cannot conclude that the out-of-district residence is inadequate within the meaning of McKinney-Vento (Appeal of S.R., 58 Ed Dept Rep, Decision No. 17,663; Appeal of T.M., 57 id., Decision No. 17,165).

Moreover, petitioner has not established that her current residence is temporary or transitional.  In support of her claim, petitioner submits a copy of the text message conversation that she submitted to respondent below.  In this conversation, the landlord indicates that the lease on the premises is month-to-month and that they have thoughts of selling the house.  In response to a question from petitioner as to whether she could stay in the out-of-district residence until the end of the school year if the property were sold, the landlord indicates that they could not prepare the house for sale until petitioner moves.  While these statements reflect the possibility of eviction, they are insufficient to prove that loss of petitioner’s current housing is imminent (see Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897; Appeal of V.B., 57 id., Decision No. 17,421; Appeal of M.D., 54 id., Decision No. 16,656).

Finally, while I sympathize with petitioner’s claim that she is “currently unemployed due to the pandemic … [and has not] been able to find permanent housing,” she provides no evidence to support these claims.  In any event, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeals of A.J., 60 Ed Dept Rep, Decision No. 17,909; Appeal of T.J.G. and D.G., 54 id., Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388). 

Therefore, based on the record before me, petitioner has failed to demonstrate that she and the students lack a fixed, regular, and adequate nighttime residence.  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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