Appeal of B.W., on behalf of J.S., from action of the Board of Education of the Uniondale Union Free School District regarding residency and homelessness.

Decision No. 18,288

(June 29, 2023)

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

ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the Uniondale Union Free School District (“respondent”) that her child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The student was enrolled in respondent’s schools in 2013 based on her residence at an address within the district (the “in-district address”).  Before the 2014-2015 school year, however, petitioner and the student were forced to relocate outside of respondent’s district due to financial concerns.  The student was permitted to continue to attend respondent’s schools as a homeless student.  Petitioner and the student resided at various addresses until relocating to their current residence (the “out-of-district address”) in or around March 2021.

By letter dated August 24, 2022, respondent’s superintendent notified petitioner that the student was no longer entitled to attend the district’s schools as a homeless student.  The superintendent explained that it appeared petitioner’s housing was permanent given the length of time she had resided therein.  This appeal ensued.

Petitioner claims that she and the student are homeless because they share the housing of other persons due to a loss of housing, economic hardship, or a similar reason.  Petitioner seeks a determination that the student is homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent contends that petitioner and the student are not homeless, that petitioner has failed to meet her burden of proof, and that the district’s determination was not arbitrary, capricious, or irrational. 

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, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has failed to establish that she and the student lack a fixed, regular, and adequate nighttime residence.  Other than her unsupported assertions on appeal that the student “does not have [his] own room” and that the out-of-district address is “overcrowded,” petitioner presents no evidence that her residence is inadequate.  It is well established that the fact that a parent and student are sharing the housing of other persons does not, without more, establish homelessness (see Appeal of A.W., 62 Ed Dept Rep, Decision No. 18,186; Appeal of M.G., 60 id., Decision No. 17,871; Appeal of A.M., 57 id., Decision No. 17,146).  

Petitioner has also failed to prove that the out-of-district address is temporary.  The record reflects that petitioner and the student have resided at the out-of-district address since March 2021.  The sole evidence suggesting that petitioner may have to leave this residence is a letter dated September 22, 2022 from an individual with whom petitioner resides.  In the letter, the individual asserts that he and his spouse have hosted petitioner and her three children temporarily due to loss of housing and loss of work.  He indicates that he only wanted to help for a “short period of time.”  Nevertheless, there is no indication that there is a specific date as to when petitioner must vacate the premises (see generally Appeal of N.L., 62 Ed Dept Rep, Decision No 18,141; Appeal of S.D., 53 id., Decision No 16,608).  

Therefore, based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular, and adequate nighttime residence.  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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