Appeal of N.C., on behalf of her child, from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and homelessness.

Decision No. 18,445

(July 15, 2024)

Guercio & Guercio, LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel

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

The student initially enrolled in respondent’s district in August 2012.  At that time, petitioner and the student resided in respondent’s district (the “in-district address”).

In February 2021, petitioner and the student were forced to leave the in-district address due to foreclosure.  Petitioner and the student moved in with petitioner’s relative at a home located outside of the district (the “out-of-district address”).  Pursuant to McKinney-Vento, respondent deemed the student homeless and maintained the student’s enrollment in its schools.  

After confirming that petitioner and the student continued to reside at the out-of-district address for over two years, by letter dated September 27, 2023, respondent determined that the student was not homeless.  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.  For relief, petitioner seeks a determination that the student is entitled to attend respondent’s schools and receive transportation.

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.”[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.  Petitioner does not allege that the out-of-district address is temporary or inadequate; she merely asserts that she is sharing the housing of a relative due to loss of housing.  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 (Appeal of T.M., 63 Ed Dept Rep, Decision No. 18,329; Appeal of M.A.-C., 62 id., Decision No. 18,177).

Additionally, the evidence submitted by petitioner does not support a determination that the out-of-district address is temporary.  Petitioner provides a letter from the relative, who states that petitioner and the student can stay “until they find a permanent residence.”  The letter does not indicate that petitioner and the student must vacate or that there is any time limit as to how long they may remain (Appeal of A.B., 63 Ed Dept Rep, Decision No. 18,324; Appeals of S.R., 56 id., Decision No. 16,987).  Therefore, respondent's determination that the student is not homeless was not arbitrary or capricious and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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