Appeal of J.R., on behalf of her child, from action of the Board of Education of the Eastport-South Manor Central School District regarding residency and homelessness.

Decision No. 18,438

(July 1, 2024)

Volz and Vigliotta, P.L.L.C., attorneys for respondent, Michael G. Vigliotta, Esq. and Michaela M. Weidtman, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Eastport-South Manor Central School District (“respondent”) that her child (the “student”) is no longer homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

In or around June 2020, petitioner and the student vacated their home and moved to a location outside of the district (the “out-of-district residence”).  Respondent deemed the student eligible to attend its schools as a homeless student at that time. 

On August 8, 2023, the district’s homeless liaison met with petitioner to discuss the student’s living arrangements.  According to the homeless liaison, petitioner indicated that she and the student continued to reside at the out-of-district address and were not at risk of losing their housing.  By letter dated August 11, 2023, respondent advised petitioner of its determination that the student was no longer homeless and was therefore not entitled to enrollment at respondent’s schools.  This appeal ensued.

Petitioner claims that the student is homeless because the family is sharing the residence of another due to loss of housing, economic hardship, or a similar reason.  For relief, she seeks a determination that the student is homeless and, therefore, entitled to continue attending respondent’s schools and receive transportation.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the student is 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.”[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.  Initially, petitioner does not allege that the out-of-district residence is inadequate (Appeal of S.S., 63 Ed Dept Rep, Decision No. 18,300).  The evidence in the record suggests otherwise, as respondent has submitted evidence that the out-of-district residence is a 1,100 square-foot, single-family home with three bedrooms and one bathroom.  Although petitioner indicates that she shares housing with the student’s grandmother and another relative, the mere fact that the student is sharing the housing of another 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 petitioner’s residence is temporary or transitional.  The record reflects that petitioner has resided at the out-of-district residence since June 2020.  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 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).

Finally, although petitioner apparently experienced financial hardship during and prior to June 2020, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808).

Thus, based upon the record before me, petitioner has failed to demonstrate 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). Accordingly, I cannot find respondent's determination that the student is not homeless to be arbitrary or capricious.[2]

THE APPEAL IS DISMISSED.

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