Appeal of K.C., on behalf of her child, from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency and homelessness.

Decision No. 18,458

(July 29, 2024)

Ingerman Smith, LLP, attorneys for respondent, Thomas Scapoli, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the City School District of the City of Mount Vernon (“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”).  The appeal must be dismissed.

Prior to the events giving rise to this appeal, the student attended respondent’s schools as a homeless student.  By letter dated February 14, 2023, respondent determined that the student was no longer homeless based on her permanent residence outside of the district.  This appeal ensued.

Petitioner argues that the student is homeless because their housing outside the district is temporary and they intend to move back to respondent’s district.  For relief, she seeks a determination that the student is entitled to attend respondent’s schools as a homeless student.

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.[1]

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.”[2]  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 student lack a fixed, regular, and adequate nighttime residence or that their residence is temporary or transitional.  In support of her claim, petitioner submits correspondence between her and her landlord, which demonstrates that she has a lease for the apartment outside respondent’s district (the “out-of-district residence”).  Petitioner otherwise offers no evidence concerning the adequacy or characteristics of the out-of-district residence.  Absent such proof, I cannot find that the out-of-district residence is inadequate (Appeal of T.M., 63 Ed Dept Rep, Decision No. 18,329; Appeal of A.J., 62 id., Decision No. 18,042; Appeal of H.M., 60 id., Decision No. 17,903).

Additionally, the record contains no evidence that petitioner and the student need to vacate the out-of-district residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).  Petitioner’s economic hardship does not, in and of itself, establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  Thus, petitioner has failed to meet her burden to prove that respondent’s determination was arbitrary and capricious, and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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