Appeal of V.W., on behalf of her child, from action of the Board of Education of the Baldwin Union Free School District regarding residency and homelessness.

Decision No. 18,310

(July 31, 2023)

Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter (“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. 

On October 18, 2019, petitioner registered her children in respondent’s district, asserting that she and several of her children lived in non-permanent housing located outside of the district (the “out-of-district residence”).  Petitioner represented that she had previously resided in the district but was evicted in September 2019.  Petitioner also indicated that the out-of-district residence was an apartment rented by K.H., a family friend.

Sometime thereafter, respondent’s homeless liaison completed a home visit of the out-of-district address.[1]  At that time, petitioner indicated that she slept on a couch while the student and her other daughter shared a bedroom.  The district’s homeless liaison observed that while petitioner “indicated that she was staying with a family friend, there was no evidence [that] the homeowner” lived on the premises.

Between February 2020 and February 2022, the homeless liaison conducted several additional home visits, observing similar circumstances to the first visit.  The homeless liaison indicates in an affidavit that, based upon his observations in June 2021, “it appeared that the [s]tudent had her own room.”  At no point did the liaison observe any sign of the homeowner.

In a letter dated June 21, 2022, respondent’s director of pupil services indicated that the student would be excluded from the school district as of July 21, 2022.  Petitioner did not appeal this determination.

On September 2, 2022, petitioner registered the student in the district, indicating that they now resided within the district (the “first Baldwin address”).  Petitioner again indicated that she and the student were homeless and were living with a friend until she could find permanent housing.  

Four days later, petitioner “called and told [the homeless liaison] that she was actually staying at a different address” (the “second Baldwin address”).  The homeless liaison thereafter conducted a home visit at the second Baldwin address.  Petitioner and the student were present when he arrived.  The homeless liaison observed a “small bedroom” where petitioner and the student were allegedly staying that did not contain any personal items.

On September 9, 2022, the homeless liaison conducted a search of public records, which confirmed that petitioner’s vehicles remained registered at the out-of-district address.  The district also conducted surveillance over several days in September 2022.  Petitioner and the student were never observed at the second Baldwin address, but frequently observed at the out-of-district address. 

In a letter dated September 28, 2022, respondent’s director of pupil services informed petitioner that the student would be excluded as of October 8, 2022.  This appeal ensued.

Petitioner maintains that she and the student are homeless because they were evicted from their in-district address in 2019.  She asserts that the student’s father “left the home [at] the peak of Covid[,] which caused hardship with finances.”  She asserts that she is “sharing the housing of other persons” at the out-of-district address.  For relief, petitioner requests a finding that the student is entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent argues that petitioner’s residence is fixed, regular, and adequate.  Respondent further contends that petitioner has lived at the out-of-district address since October 2019 and has not established that K.H. or any other individual lives therein. 

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]).  

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 the student lacks a fixed, regular, and adequate nighttime residence.  Petitioner submits an affidavit from K.H. in which she indicates that she rents the out-of-district residence to petitioner and the student.  Other than this affidavit, however, petitioner provides no other evidence that her residence is inadequate.[3]  Notably, K.H. does not assert that she resides at the out-of-district address with petitioner and the student.  But even assuming she had, it is well established that “the mere assertion that a student is sharing the housing of other persons does not, without more, establish that a residence is inadequate” (Appeal of K.S., 60 Ed Dept Rep, Decision No. 17,875; see also Appeal of C.M., 58 id., Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146). 

Petitioner has also failed to prove that the out-of-district residence is temporary.  Petitioner submits an August 23, 2022 notice addressed to K.H. indicating that she must pay a specific sum for rental of the out-of-district address within fourteen days or “give up possession of the premises to the landlord.”  While this is concerning, K.H. executed the affidavit described above on October 25, 2022, almost two months after the notice was issued.  Thus, the record reflects that petitioner was not, in fact, evicted from the out-of-district address, where she has continuously[4] resided since 2019.  As such, petitioner has not established that the out-of-district residence is temporary (Appeal of M.S. and C.C., 59 Ed Dept Rep, Decision No. 17,749).

Thus, petitioner has failed to establish that the student lacks a fixed, regular, and adequate nighttime residence or is living in the kind of shelter or other accommodations set forth in Education Law § 3209 (1) (a).  As such, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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