Appeal of T.M., on behalf of her child, from action of the Board of Education of the Sachem Central School District regarding residency and homelessness.

Decision No. 18,329

(August 17, 2023)

Ingerman Smith LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Sachem Central 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”).  The appeal must be dismissed.

The student initially enrolled in respondent’s district in September 2020.  At that time, petitioner and the student rented a residence located within the district (the “in-district residence”).  In June 2022, the owner sold the in-district residence.  Petitioner and the student thereafter moved in with petitioner’s mother to a home located outside of the district (the “first out-of-district residence”).  In March 2023, petitioner and the student moved from the first out-of-district residence to a location owned by an acquaintance of petitioner (the “second out-of-district residence”).  During this time, respondent deemed the student homeless and maintained the student’s enrollment in its schools.

On or about April 17, 2023, respondent learned that petitioner and the student were residing at a new location in Ronkonkoma, New York (the “third out-of-district residence”).  On April 18, 2023, respondent contacted petitioner, who confirmed that she and the student lived at the third out-of-district residence.  Petitioner further “reported … that she had signed a one-year lease to live at the [third out-of-district residence] on or about April 1, 2023....”  Respondent thereafter informed petitioner that the student would be permitted to complete the 2022-2023 school year within the district but would thereafter have to enroll in the student’s district of residence.

In a decision dated May 9, 2023, respondent informed petitioner of its determination that the student was no longer homeless because petitioner and the student resided in a “regular and adequate residence.”  Petitioner met with the district’s homeless liaison on or about May 18, 2023 to discuss the student’s homeless status.  By letter dated May 19, 2023, respondent affirmed its earlier determination.[1]  This appeal ensued.

Petitioner contends that the student is homeless because she and the student are sharing the housing of other persons due to loss of housing and economic hardship.  Petitioner also asserts that the third out-of-district residence is temporary or transitional because she intends to move to a residence within respondent’s district as soon as possible.  Petitioner requests a determination that the student is entitled to attend respondent’s schools as a homeless student.

Respondent argues that petitioner and the student are not homeless as they currently live in a fixed and adequate residence.

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 meet her burden of proving that the student is homeless under State or federal law.  The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (e.g., Appeal of M.A.-C., 62 Ed Dept Rep, Decision No. 18,177; Appeal of N.L., 62 id., Decision No. 18.041; Appeal of A.M., 57 id., Decision No. 17,146).  Moreover, petitioner offers no evidence whatsoever concerning the adequacy or characteristics of the third out-of-district residence.  Absent such proof, I cannot find that the third out-of-district residence is inadequate (Appeal of A.J., 62 Ed Dept Rep, Decision No. 18,042; Appeal of H.M., 60 id., Decision No. 17,903).[3]

Additionally, there is no indication that the third out-of-district residence is temporary or transitional.  Petitioner’s general intention to move back to the district does not establish that her current residence is temporary or transitional within the meaning of Education Law § 3209 (see, e.g., Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).  Petitioner does not assert, and the record contains no evidence indicating, that petitioner or the student need to vacate the third out-of-district residence or that there is a fixed time limit as to how long they may remain (see Appeal of G.D. and K.D, 62 Ed Dept Rep, Decision No. 18,180; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  Specifically, petitioner’s one-year lease does not render the out-of-district residence temporary or transitional (see Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897 [“It is ... well-established that (the) rental of [an] out-of-district address on a month-to-month basis does not establish that it is temporary or transitional”]).

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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