Appeal of L.B., on behalf of her children, from action of the Board of Education of the North Shore Central School District regarding residency and homelessness.

Decision No. 18,475

(August 19, 2024)

Frazer and Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the North Shore Central School District (“respondent”) that her three children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”) and New York Education Law § 3209 (1) (a).[1]  The appeal must be dismissed.

Prior to the events leading to this appeal, the students attended respondent’s district as residents.  In September 2023, petitioner and the students moved outside the district (the “out-of-district address”).  Respondent permitted the students to continue attending its schools as homeless students. 

In spring 2024, respondent confirmed that petitioner and the students continued to reside at the out-of-district address.  By letter dated March 11, 2024, respondent determined that the students were no longer homeless because the out-of-district address was fixed, regular, and adequate.  This appeal ensued.

Petitioner argues that the students are homeless because they are temporarily staying in an apartment with family members.  Petitioner further asserts that she and the students sleep in a small living room of that apartment.

Respondent argues that petitioner has not demonstrated that the students are homeless or that its determination was arbitrary or capricious.

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 students lack a fixed, regular, and adequate nighttime residence.  In support of her claim, petitioner offers an unsworn statement from her brother.  The brother indicates that petitioner and the students reside with him in a two-bedroom apartment that he rents.  The brother states that petitioner and the students are staying in the living room and sleeping on the floor while he and the students’ grandfather occupy the two bedrooms.  The brother additionally asserts that petitioner and the students must leave the apartment by March 31, 2024.  Finally, the brother states that the “city of Glen Cove has an issue” with the number of residents in the apartment.

Other than this unsworn statement, petitioner has provided no actual evidence of the students’ living arrangements at the out-of-district address, such as photographs (Appeal of R.D., 60 Ed Dept Rep, Decision No. 17,866; Appeal of A.S., 58 id., Decision No. 17,559).  In this respect, respondent identifies public records indicating that the out-of-district address is a two-story, three-family dwelling with at least two bedrooms, three bathrooms, and a full basement.  Petitioner did not submit a reply or otherwise respond to this contention (see Appeal of S.G., 62 Ed Dept Rep, Decision No. 18,289).  Therefore, petitioner has not met her burden of proving that the out-of-district address is inadequate (Appeal of S.R., 58 Ed Dept Rep, Decision No. 17,663; Appeal of T.M., 57 id., Decision No. 17,165).

Petitioner has also failed to prove that the out-of-district address is temporary.  While petitioner’s brother states that petitioner’s family must vacate by March 31, 2024, respondent continued to transport the students between school and the out-of-district address as of April 10, 2024.  The record otherwise lacks evidence that there is a fixed time limit as to how long petitioner or the students may remain at the out-of-district address (Appeal of M.G., 63 Ed Dept, Decision No. 18,340; Appeal of S.R., 62 Ed Dept, Decision No. 18,162).

Therefore, petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate nighttime residence.  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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