Appeal of S.S., on behalf of her children, from action of the Board of Education of the Onondaga Central School District regarding residency and homelessness.

Decision No. 18,300

(July 17, 2023)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Onondaga Central School District (“respondent”) that her two 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.

Petitioner and the students previously resided within respondent’s district.  In 2020, petitioner informed respondent that the family had been evicted from their in-district housing.  She indicated that the family had moved in with the students’ grandparent outside of the district (the “out-of-district residence”).  Respondent deemed the students homeless at that time.

In June 2022, respondent’s homeless liaison spoke with petitioner regarding her residency status.  Petitioner indicated that she and the students continued to reside at the out-of-district residence, where each student had his or her own bedroom.  Petitioner indicated that she desired to return to the district but could not locate affordable housing.

In a letter dated June 29, 2022,[1] respondent’s superintendent informed petitioner of the district’s determination that the students were not entitled to attend its schools as homeless students.  This appeal ensued.

Petitioner asserts that the students are homeless because she and her family are sharing housing with the grandparent due to loss of housing, economic hardship, or a similar reason.  Petitioner further asserts that she and her family could be “thrown out on [the] street” should the grandparent pass away.  For relief, she seeks a determination that the students are entitled to attend respondent’s schools and receive transportation.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the students are homeless within the meaning of McKinney-Vento or the Education Law.

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.”[2]  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 meet her burden of proving that the students are homeless.  Initially, petitioner does not assert that the out-of-district residence is inadequate (Appeal of S.C., 59 Ed Dept Rep, Decision No. 17,710).  All evidence in the record—including petitioner’s statements to the homeless liaison—suggests to the contrary.

Further, there is no evidence that petitioner’s residence is temporary or transitional.  The record reflects that petitioner has resided at the out-of-district residence since September 2020.  Although petitioner indicates that the elderly grandparent with whom they are living could pass away and cause them to lose their housing, this is speculative.  As such, it does not provide “a specific date as to when the premises must be vacated” (Appeal of A.W., 62 Ed Dept Rep, Decision No. 18,186; Appeal of K.B., 59 id., Decision No. 17,697; see generally Appeal of N.L., 62 id., Decision No. 18,141).  Thus, I cannot find that the out-of-district residence is temporary. 

Finally, although petitioner describes a series of financial hardships from 2020 to the present, the Commissioner has long held that economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808).

Thus, based upon the record before me, petitioner has failed to demonstrate that the students are homeless within the meaning of McKinney-Vento insofar as she has not proven that the students lack a fixed, regular, and adequate nighttime residence or are 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 students are not homeless to be arbitrary or capricious.[3]

THE APPEAL IS DISMISSED.

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