Appeal of M.A.-C., on behalf of her child, from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and homelessness.

Decision No. 18,177

(August 18, 2022)

Guercio & Guercio, LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) that her child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools.  The appeal must be dismissed.

The student enrolled in respondent’s schools in November 2021.  At that time, petitioner and the student resided in respondent’s district (the “in-district residence”).  In March 2022, petitioner contacted respondent, asserting that she and the student had been forced to move to an out-of-district residence due to the sale of the in-district residence.  Respondent consulted public records, which contained no indication that the in-district residence had been sold or listed for sale.  On or about March 3, 2021, petitioner indicated to respondent that she paid rent at the out-of-district residence.  District staff informed petitioner that they did not consider the student homeless because the family had secured a permanent home outside of the district.

On or about March 9, 2022, petitioner asserted that she and the student were homeless because they were temporarily residing at the out-of-district residence.

 By letter dated March 23, 2022, respondent determined that the student was not homeless as defined under McKinney-Vento.  This appeal ensued.

Petitioner asserts that the student is homeless because he is 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 student is entitled to attend respondent’s schools and receive transportation as a homeless student.

Respondent avers that the student is not homeless within the meaning of McKinney-Vento because petitioner offers no proof that the out-of-district residence is inadequate or temporary.

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 establish that she and the student lack a fixed, regular, and adequate nighttime residence.  Petitioner does not allege that the out-of-district residence is temporary or inadequate; she merely asserts that she is sharing the housing of others due to loss of housing.  The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (e.g., Appeal of N.L., 62 Ed Dept Rep, Decision No. 18.041; Appeal of A.M., 57 id., Decision No. 17,146).  Moreover, petitioner offers no evidence whatsoever concerning the adequacy or characteristics of the out-of-district residence.  Absent such proof, I cannot find that the out-of-district residence is inadequate (Appeal of A.J., 62 Ed Dept Rep, Decision No. 18,042; Appeal of H.M., 60 id., Decision No. 17,903).  Therefore, respondent’s determination that the student is not homeless was not arbitrary or capricious.

While the appeal must be dismissed, I remind respondent that its homeless liaison has a duty to assist parents, guardians and unaccompanied youth in commencing appeals to the Commissioner under Education Law § 310.  This includes assistance in answering the questions in the form petition developed by the State Education Department (8 NYCRR 100.2 (x) (7) (iii) (c); New York State Education Department Guidance on the McKinney-Vento Act: Education of Children and Youth Experiencing Homelessness [August 2019], available at http://www.nysed.gov/sites/nysed/files/nysed-guidance-education-for-home... [last accessed Aug. 15, 2022]; see generally Appeal of A.J., 60 Ed Dept Rep, Decision No. 17,909).  The fact that many pertinent questions in the form petition were left blank raises a question as to whether respondent met this obligation. 

THE APPEAL IS DISMISSED.

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