Appeal of C.S. and C.G., on behalf of their child, from action of the Board of Education of the Frontier Central School District regarding residency and homelessness.

Decision No. 18,290

(June 29, 2023)

Hodgson Russ LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge the determination of the Board of Education of the Frontier Central School District (“respondent”) that their child (the “student”) is not eligible to attend the district’s schools tuition-free or to receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC § 11431, et seq., “McKinney-Vento”).  The appeal must be dismissed.

Prior to the events described herein, the student was enrolled in respondent’s schools as a district resident.  In March 2022, petitioners and the student were evicted from their in-district residence.  They thereafter relocated to a residence located outside of the district (the “out-of-district residence”).  The student continued to attend respondent’s school for the remainder of the 2021-2022 school year as a homeless student.

In a decision dated September 12, 2022, respondent found that the student was no longer homeless because she resided in an “adequate, fixed nighttime residence.”  This appeal ensued.

Petitioners contend that the student is homeless because she is sharing the housing of other persons due to loss of housing and economic hardship.  Petitioners request a determination that the student is entitled to attend respondent’s schools as a homeless student.

Respondent argues that the petition must be dismissed as untimely.  On the merits, respondent contends that petitioners have failed to meet their burden of proving that the student’s residence is not fixed, regular, or adequate. 

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not reveal when a petitioner received notice, the date of receipt is calculated as the date of the determination or act plus five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent determined that the student was not homeless in a letter dated September 12, 2022.  Affording five days for mailing, petitioners had until October 19, 2022 to commence the instant appeal.  Petitioners did not commence the instant appeal until October 28, 2022 and have provided no explanation for the delay.  Therefore, petitioners have failed to establish good cause for the delay and the appeal must be dismissed as untimely.

Even if the appeal were timely, it would be dismissed on the merits.  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).

Petitioners have failed to meet their burden of proving that the student is homeless under State or federal law.  Petitioners provide no details about the adequacy of the living conditions at the out-of-district residence (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  While petitioners assert that the student shares a room with others, they have not provided evidence that this is compelled by the characteristics of the house or its number of inhabitants (Appeal of D.T., 58 Ed Dept Rep, Decision No. 17,558; Appeal of C.M., 57 id., Decision No. 17,131).  Without any specific information about the adequacy of petitioners’ and the student’s living arrangements, I cannot find that the out-of-district residence is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).

Additionally, there is no indication that the out-of-district residence is temporary or transitional.  The out-of-district residence is owned by the student’s grandmother, and the record contains no evidence that the student needs to vacate that residence or that there is a fixed time limit as to how long petitioners or the student 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).

Thus, based upon the record before me, petitioners have failed to demonstrate that the student lacks a fixed, regular, and adequate night-time residence or that the student is living in the kind of shelter or other accommodations set forth in Education Law § 3209 (1) (a).  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.[2]

THE APPEAL IS DISMISSED.

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