Appeal of G.D. and K.D., on behalf of their child, from action of the Board of Education of the South Huntington Union Free School District regarding residency and homelessness.

Decision No. 18,180

(August 18, 2022)

Ingerman Smith, LLP, attorneys for respondent, Christine Lobasso Sullivan, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the South Huntington Union Free School District (“respondent”) that their 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 transportation to a nonpublic school.  The appeal must be dismissed. 

Prior to the events leading to this appeal, petitioners and the student resided within respondent’s district.  Respondent provided the student with transportation to a nonpublic school (see Education Law § 3635 [1] [a]).

In June 2021, petitioners’ residence caught fire, rendering their in-district residence uninhabitable.  After staying in a hotel for a period of time, petitioners signed a one-year lease for a condominium located outside of respondent’s district (the “out-of-district residence”).  Petitioners and the student moved to the out-of-district residence in early September 2021.

By letter dated September 28, 2021, respondent determined that the student did not qualify as homeless under McKinney-Vento or New York State law because the out-of-district residence was “fixed, regular, and adequate.”  As such, respondent informed petitioners that the student was “not entitled to enrollment or transportation services ... provided by [respondent].”  This appeal ensued.

Petitioners maintain that they and the student are homeless because they were displaced after the fire at the in-district residence.  Petitioners seek a determination that the student is homeless and, thus, entitled to receive transportation from respondent to the student’s nonpublic school.

Respondent argues that the student is not homeless because there is no evidence that petitioners’ living arrangements are temporary or inadequate.

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).

Initially, it is undisputed that the in-district residence was rendered uninhabitable, and that the student was considered homeless during the time he resided at a hotel from June through September 2021.  The sole issue is whether the student remained homeless when he thereafter relocated to the out-of-district residence.  On this point, petitioners have failed to meet their burden of proof.

Petitioners submit no evidence that the out-of-district residence is inadequate or temporary.  Respondent, by contrast, has submitted evidence that the out-of-district residence is part of a luxury complex, which includes a doorman, pool, and other facilities.  While the out-of-district residence has less square footage than petitioners’ in-district residence, petitioners did not submit a reply to rebut respondent’s assertions or otherwise explain how their living arrangement is inadequate (Appeal of A.J., 60 Ed Dept Rep, Decision No. 17,909; Appeal of J.L. and C.V., 59 Ed Dept Rep, Decision No. 17,736 [students homeless for a month or two after their in-district residence was declared uninhabitable, but not after they moved to a single-family home thereafter]).

Additionally, there is no evidence that the out-of-district residence is temporary or transitional.  Petitioners do not assert, and the record contains no evidence indicating, that they or the student 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).  Petitioners’ one-year lease does not render the out-of-district residence temporary or transitional (see Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897 [“It is ... well-established that (the) rental of the out-of-district address on a month-to-month basis does not establish that it is temporary or transitional”]).

Finally, even assuming that petitioners had met their burden of proof, the relief sought by petitioners – transportation to a nonpublic school – is not a remedy contemplated by McKinney-Vento or state law (Education Law § 3209; 8 NYCRR § 100.2 [x]).  A request for such transportation should have been presented to petitioners’ district of residence,[2] as well as any request for special education services.[3]

Although the appeal must be dismissed for the reasons set forth above, petitioners retain the right to reapply for admission to respondent’s school on the student’s behalf as district residents at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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