Appeal of K.S., on behalf of her child, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and homelessness.

Decision No. 18,436

(July 1, 2024)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her child (the “student”) is not a district resident or homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Petitioner first registered the student in respondent’s district for the 2013-2014 school year, indicating that she resided at a location owned by the student’s grandmother (the “in-district address”).  During the 2021-2022 school year, petitioner represented to respondent that she and the student had left the in-district address and were temporarily living outside the district to care for a relative (the “out-of-district address”).  Respondent permitted the student to continue to attend school as a homeless student.

In fall 2022, the district conducted a residency investigation, concluding that petitioner continued to reside at the out-of-district address.  In June 2023, respondent’s homeless liaison spoke with petitioner, who stated that she and the student resided at the out-of-district address during the week but visited the in-district address on weekends.  Petitioner made a similar representation to the homeless liaison in October 2023.  By letter dated November 30, 2023, respondent’s homeless liaison notified petitioner of its determination that the student was neither a district resident nor homeless.  This appeal ensued.

Petitioner argues that the student is entitled to attend respondent’s schools because he lives in the district.  Alternatively, petitioner argues that the student is homeless because he shares the housing of others due to his disability and economic hardship.

Respondent maintains that petitioner and the student have permanent housing at the out-of-district address and are not homeless.

Education Law § 3202 (1) provides, in pertinent part, that “[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.”  The purpose of this provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 not met her burden of proving that respondent’s residency determination was arbitrary and capricious.  On appeal, petitioner presents signed letters from herself and the student’s grandmother indicating that the student sleeps at the in-district address on school days based upon his needs and petitioner’s work schedule.  Petitioner also submits a signed letter from a relative asserting that the student spends “a few days out of the week” at the at the out-of-district address “due to his condition.”

In response, respondent submits affidavits from two bus drivers who regularly picked up the student from the out-of-district address to transport him to school during the 2023-2024 school year.  Both bus drivers indicate that the student has never been transported to, or from, the in-district address.  Additionally, as indicated above, petitioner informed respondent’s homeless liaison in both June and October of 2023 that she and the student continued to live outside the district during the week to care for a relative.  Weighing the parties’ respective submissions on this issue, I find respondent’s evidence, particularly the affidavits of the bus drivers, to be more persuasive (Appeals of P.B. and M.B., 58 Ed Dept Rep, Decision No. 17,477; see generally Application of Sailer, 63 Ed Dept Rep, Decision No. 18,362).  

Petitioner has also failed to prove that the student is homeless.  At the outset, petitioner does not allege that the out-of-district address is inadequate (Appeal of S.S., 63 Ed Dept Rep, Decision No. 18,300).  Although petitioner indicates that the student shares the out-of-district address with relatives, the fact that the student is sharing the housing of others does not, without more, establish that a residence is inadequate (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 evidence that the out-of-district address is temporary or transitional.  The record reflects that the student and petitioner began residing at the out-of-district address during the 2021-2022 school year.  Petitioner does not assert, and the record contains no evidence indicating, that she or the student need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864; Appeal of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).

Thus, based on the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular, and adequate nighttime residence or that their residence is temporary or transitional within the meaning of McKinney-Vento or Education Law § 3209 (1) (a).  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

Although the appeal must be dismissed, petitioner retains the right to reapply for admission on behalf of the student at any time, should circumstances change.

THE APPEAL IS DISMISSED.

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