Appeal of F.U., on behalf of his children, from action of the Board of Education of the Tuckahoe Common School District regarding residency and homelessness.

Decision No. 18,432

(July 1, 2024)

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

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Tuckahoe Common School District (“respondent”) that his 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 school or receive transportation.  The appeal must be dismissed.

Petitioner and the students previously resided within respondent’s district.  From 2019 to December 2022, petitioner and the students lived in hotels and the students were permitted to continue attending respondent’s schools as homeless students.  In December 2022, petitioner moved to a new location outside the school district (the “out-of-district residence”).  In December 2023, respondent confirmed that petitioner continued to reside therein. 

In a letter dated February 14, 2024, respondent informed petitioner of its determination that the students were not entitled to attend its school as homeless students because they had a permanent address outside of the district.  Respondent indicated that the students’ final day of enrollment would be March 15, 2024.  This appeal ensued.

Petitioner asserts that the students are homeless because they are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason, and have had difficulties finding stable housing.  For relief, petitioner seeks a determination that the students are entitled to attend respondent’s schools as homeless students.

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.”  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 he and the students lack a fixed, regular, and adequate nighttime residence.  Petitioner’s assertion that he is sharing the housing of others, without more, does not establish the inadequacy of the out-of-district residence (Appeal of  M.G., 63 Ed Dept Rep, Decision No. 18,340; Appeal of A.M., 57 id., Decision No. 17,146).  While petitioner indicates that the students share a room with a sister, he does not allege that the students lack their own beds or that the residence is overcrowded.  Moreover, petitioner characterized the out-of-district residence, which is owned by his family members, as “comfortable.”  Thus, petitioner has not established the inadequacy of the out-of-district residence (Appeal of A.J., 62 Ed Dept Rep, Decision No. 18,142; Appeal of H.M., 60 id., Decision No. 17,903).

Petitioner has also failed to establish that the out-of-district residence is temporary or transitional.  The record reflects that the students have resided at the out-of-district residence with petitioner since at least December 2022.  There is no indication that the students need to vacate the out-of-district residence or that there is a fixed time as to how long they may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  

Based upon the record before me, petitioner has failed to prove that the students lack a fixed, regular, and adequate nighttime address or are living in the kind of shelter or other accommodations set forth in Education Law § 3209 (1) (a).  Accordingly, respondent’s determination cannot be considered arbitrary or capricious.

THE APPEAL IS DISMISSED.

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