Appeal of S.M., on behalf of her children, from action of the Board of Education of the Amityville Union Free School District regarding residency and homelessness.

Appeal of J.T., on behalf of her child, from action of the Board of Education of the Amityville Union Free School District regarding residency and homelessness.

Decision No. 18,461

(July 30, 2024)

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

ROSA., Commissioner.--Petitioners challenge the determination of the Amityville Union Free School District (“respondent”) that their 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, are not entitled to attend the district’s schools.  Since the appeals present similar issues of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed.

In August 2018, petitioners, who resided at the same in-district address, relocated each of their families to a residence outside of respondent’s district (the “out-of-district address”) due to economic hardship.  Respondent permitted the students to continue attending its schools pursuant to McKinney-Vento at such time. 

In August 2023, respondent determined that the students could no longer be deemed homeless as they possessed a fixed, adequate regular night-time residence at the out-of-district address.  This appeal ensued.  

Petitioners argue that the students are entitled to attend respondent’s district pursuant to McKinney-Vento because they may need to vacate the out-of-district address due to the death of its owner.       

Respondent argues, among other contentions that the students are not homeless because they live in a fixed, regular, and adequate nighttime 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).

Petitioners have failed to meet the burden of proving that the students are homeless under State or federal law.  Petitioners do not provide any information about the adequacy of the living conditions at the out-of-district address (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  Without such information, I cannot find that the out-of-district address is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).  While petitioners assert that the students are sharing the housing of other persons, this does not, without more, establish homelessness (see Appeal of A.W., 62 Ed Dept Rep, Decision No. 18,186; Appeal of M.G., 60 id., Decision No. 17,871).

Additionally, petitioners have failed to prove the out-of-district address is temporary or transitional.  While petitioners contend that there is uncertainty over what will happen with the home since the owner passed away, there is no proof that petitioners will actually be required to vacate the out-of-district address by a specific date (Appeal of M.G., 63 Ed Dept Rep, Decision No. 18,340; Appeal of A.N., 56 id., Decision No. 16,852).[2]  Absent such information, general uncertainty about the future is insufficient to prove that petitioners and the students are homeless (Appeals of A.J., 60 Ed Dept Rep, Decision No. 17,909; Appeal of S.C., 59 id., Decision No. 17,710; Appeal of S.D., 53 id., Decision No. 16,608). 

Thus, based upon the record before me, petitioners have failed to demonstrate that the out-of-district address is inadequate, temporary or transitional.  As such, the appeals must be dismissed.

THE APPEALS ARE DISMISSED.

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