Appeals of S.Z., on behalf of her children, from action of the Board of Education of the Rocky Point Union Free School District regarding residency and homelessness.

Decision No. 18,457

(July 29, 2024)

Kevin A. Seaman, Esq., attorney for respondent

ROSA., Commissioner.--Petitioner appeals[1] the determination of the Board of Education of the Rocky Point Union Free School District (“respondent”) that her 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.  In January 2023, petitioner notified respondent that she and her family had moved to an address outside of the district, which she described as “temporary” (the “out-of-district address”).  On August 29, 2023, respondent’s McKinney-Vento liaison contacted petitioner, who indicated that she and the students still resided with a family friend at the out-of-district address.  Respondent indicates that petitioner was uncooperative with respondent’s efforts to gather further information about the out-of-district address.

By letter dated September 6, 2023, 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.  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.  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 she and the students lack a fixed, regular, and adequate nighttime residence.  Petitioner’s assertion that she 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 she and the students are staying at a home of a “friend of a friend” in the basement, she does not allege that the students lack their own beds or that the residence is overcrowded.  Indeed, the evidence in the record suggests the opposite.  According to respondent’s homeless liaison, petitioner informed her that her basement apartment had two bedrooms, a kitchen and living quarters.  Additionally, when a district employee personally delivered its determination to the out-of-district address, she observed that petitioner occupied an apartment therein with its own separate entrance.  Thus, petitioner has not established the inadequacy of the out-of-district address (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 address is temporary or transitional.  The record reflects that the students have resided at the out-of-district address with petitioner since at least January 2023 under the terms of a rental agreement.  While petitioner claims that the owner asked her to leave, her proof consists of a fourteen-day rental demand notice.  This notice was issued on July 17, 2023, three months prior to the date of the petition.  Thus, notwithstanding the possibility of eviction for non-payment of rent, the record reflects that petitioner and the students continue to reside at the out-of-district address (Appeal of M.S. and C.C., 59 Ed Dept Rep, Decision No. 17,749).  As such, I cannot conclude that the out-of-district address is temporary or transitional (see Appeal of T.M., 63 Ed Dept Rep, Decision No. 18,329; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537). 

Finally, while the voluminous family court records submitted by petitioner demonstrate that she and the students have experienced turbulent circumstances, these documents are not relevant to the adequacy or permanency of the out-of-district address.

Based upon the record before me, petitioner has failed to prove that the students lack a fixed, regular, and adequate nighttime residence 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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