Appeal of A.B. on behalf of her child, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency and homelessness.

Decision No. 18,324

(August 15, 2023)

Volz & Vigliotta, PLLC, attorneys for respondent, David H. Arntsen, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431, et seq., “McKinney-Vento”) and therefore is not eligible to attend the district’s schools tuition-free.  The appeal must be dismissed.

Prior to the events described herein, the student was enrolled in respondent’s schools as a district resident.  According to petitioner, in March 2020, she and the student were evicted from their in-district residence.  Petitioner and the student  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 2019-2020 school year and the 2021-2022 school year as a homeless student.

In a letter dated June 27, 2022, respondent’s business administrator found that the student was no longer homeless because petitioner and the student resided at the out-of-district residence for more than two years which constituted a “fixed, regular, adequate nighttime residence.”  The business administrator indicated that district employees were willing to meet with petitioner to discuss this finding.  On June 29, 2022, petitioner and several district employees spoke by phone.  Following this conference, petitioner submitted additional documentation which included a notice related to a proceeding in housing court concerning the out-of-district residence.  Respondent issued a final determination on June 29, 2022, maintaining its finding that the student was not homeless because he resided in a “fixed, regular and adequate nighttime residence.”  This appeal ensued.

Petitioner contends that the student is homeless because she is temporarily sharing the housing of other persons due to loss of housing and economic hardship.  Petitioner further contends that the owner of the out-of-district residence is currently facing eviction.  Petitioner requests a determination that the student is entitled to attend respondent’s schools as a homeless student.

Respondent argues that the petition must be dismissed because petitioner has failed to meet her burden of proving that the student’s residence is not fixed, regular, or adequate. 

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 meet her burden of proving that the student is homeless under State or federal law.  Petitioner provides 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).  Other than petitioner’s assertion that the student shares a room with her, she has not provided any 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 petitioner’s 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).[2]  Furthermore, 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).

Additionally, there is no indication that the out-of-district residence is temporary or transitional.  Petitioner and the student have been residing at the out-of-district residence since 2020.  While petitioner asserts that the primary tenant is in the process of being evicted, the record contains no concrete evidence that the student needs to vacate that residence or that there is a fixed time limit as to how long petitioner 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).  In this respect, petitioner submits a housing court notice related to the out-of-district residence; however, it is unclear whether this notice is related to an eviction proceeding.  The Commissioner has previously held that the mere possibility of eviction is insufficient to prove an imminent loss of current housing (see Appeal of S.R., 62 Ed Dept Rep, Decision No. 18,162 [citing prior appeals]).

Thus, based upon the record before me, petitioner has 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.

THE APPEAL IS DISMISSED.

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