Appeal of S.G., on behalf of her children, from action of the Board of Education of the North Babylon Union Free School District regarding residency and homelessness.

Decision No. 18,289

(June 29, 2023)

            Guercio & Guercio LLP, attorneys for respondent, Rachel N. Roth, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the North Babylon 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.

In 2018, petitioner moved from respondent’s district to a single family home owned by a relative located outside of respondent’s district (the “out-of-district-residence”).  At that time, respondent determined that petitioner’s living circumstances were temporary and permitted the students to attend its schools as homeless students.

On August 29, 2022, respondent’s homeless liaison and its director of special education (“director”) conducted a home visit of the out-of-district residence.  As further explained below, the homeless liaison and director concluded that the home was fixed, regular and adequate.

By letter dated August 29, 2022, the district informed petitioner of its determination that the students were not homeless because she and the students did not reside within the district’s boundaries and lived in a fixed, regular and adequate residence.  Respondent informed petitioner that the students would be excluded from its schools effective September 16, 2022.  This appeal ensued. 

Petitioner claims that the students 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 students are homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.

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, 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 students lack a fixed, regular, and adequate nighttime residence.  Other than petitioner’s conclusory assertions in the petition, the record is devoid of any evidence that the out-of-district address is inadequate.  On appeal, petitioner states that she, the students’ stepfather and two small children sleep in one room; two students sleep in another room; the children’s grandmother sleeps in another room, one student sleeps in the living room on a blow-up bed, and petitioner’s brother-in-law sleeps in a den.  Petitioner provides no other evidence of her living arrangements at the out-of-district address.

By contrast, respondent submits an affidavit from the homeless liaison describing his observations of the home in connection with the August 29, 2022 visit.  He avers that the out-of-district address is a well-kept, spacious home with “approximately” three bedrooms owned by petitioner’s mother-in-law.  The liaison indicates that during the home visit, petitioner stated that “all but one of the students slept in a bedroom and two students shared a room.”  The liaison did not observe evidence that anyone slept in the living room.  The liaison also indicated that he was denied access to “a bedroom at the back of the house.”  Petitioner has not submitted a reply to rebut respondent’s assertions or explained how her family’s living arrangements are compelled by the characteristics of the house or its number of inhabitants (Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864; Appeal of D.T., 58 id., Decision No. 17,558; Appeal of C.M., 57 id., Decision No. 17,131).  Therefore, while the details of petitioner’s residence and the living arrangements remain somewhat unclear,[2] petitioner has not met her burden of proving that the out-of-district address is inadequate (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.  The record indicates that petitioner and the students have been residing at the out-of-district residence for several years.  The record contains no evidence that the students need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Finally, petitioner has not provided any evidence to support her claims of financial insecurity.  In any event, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221). 

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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