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

Decision No. 18,165

(August 1, 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 (“Student A,” “Student B,” or “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 tuition-free.  The appeal must be dismissed.

For a number of years prior to the 2018-2019 school year, the students resided with petitioner in respondent’s district and attended respondent’s schools.  In September 2018, petitioner notified respondent that the students were temporarily homeless and that she and the students were residing outside the district.  In October 2019, petitioner asserted to respondent that she and the students had moved to an address in Brentwood, New York (the “out-of-district residence”), also located outside of respondent’s district, and that the students continued to be homeless. 

On November 22, 2021, respondent sent a letter to petitioner advising her that the students were no longer homeless because the out-of-district residence was now considered their permanent residence.  Respondent afforded petitioner the opportunity to provide additional evidence regarding her housing situation before it made a final homeless determination.  It does not appear that petitioner submitted any additional information for respondent’s consideration.

On December 17, 2021, respondent notified petitioner that the students were no longer homeless as they now had a fixed, regular night-time residence that is adequate.  Further, respondent informed petitioner that:  (1) Student A would be allowed to continue attending respondent’s schools through the 2021-2022 and 2022-2023 school years as a homeless student but would be excluded from school in the district effective June 23, 2023;[1] and (2) Student B would be allowed to continue attending respondent’s schools for the remainder of the 2021-2022 school year as a homeless student but would be excluded from respondent’s district effective June 24, 2022.  This appeal ensued.

Petitioner claims that the students are homeless pursuant to McKinney-Vento because they are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.  Petitioner seeks a determination that the students are homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent argues that its determination was not arbitrary or capricious and that petitioner has failed to establish that the students are entitled to attend its schools as homeless students.

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.”[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 (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 lack a fixed, regular, and adequate nighttime residence.  As an initial matter, petitioner does not allege that the out-of-district residence is inadequate in any manner (see Appeal of T.B.-D., 58 Ed Dept Rep. Decision No. 17,605, Appeal of J.B., 56 id., Decision No. 17,115).[3]  Although petitioner indicates that the students share the out-of-district residence with her, the students’ father, and an aunt, the mere fact that the students are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of C.R., 60 Ed Dept Rep, Decision No. 17,876; Appeal of Appeal of C.M., 58 id., Decision No. 17,664).

Petitioner has also failed to establish that the out-of-district residence is temporary or transitional.  The record reflects that the students have resided at the out-of-district residence with petitioner since at least September 2018.  There is no indication that the students need to vacate the out-of-district residence or that there is a fixed time as to how long they may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864; Appeal of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  

Therefore, based upon the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular, and adequate nighttime residence or are living in a shelter or other temporary living accommodation as set forth in Education Law § 3209.  Accordingly, I cannot find respondent’s determination that the students were not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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