Appeal of S.R., 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. 18,479

(August 22, 2024)

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

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Amityville Union Free School District (“respondent”) that her child (the “student”) is not eligible to attend the district’s schools tuition-free or to receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC § 11431, et seq., “McKinney-Vento”).  The appeal must be dismissed.

Prior to the events described herein, the student attended respondent’s schools as a district resident.  In October 2017, petitioner and the student moved outside of the district’s boundaries.  At that time, the district continued to allow the student to attend its schools as a homeless student.  In July 2018, petitioner moved to a residence in Queens, New York (the “out-of-district residence”), which is owned by petitioner’s uncle and located outside of the district’s boundaries.  From July 2018 through June 2023, the district continued to consider the student homeless.

By letter dated August 22, 2023, the district informed petitioner that it had made an “initial determination that [the student] [was] no longer homeless as [the student] now ha[d] a fixed, regular night-time residence that [was] adequate.”  Despite an opportunity to do so, petitioner did not respond to this letter or submit any additional information.  By letter dated October 2, 2023, respondent informed petitioner that its determination was final and that the student would be excluded as of October 11, 2023.  This appeal ensued.

Petitioner contends that the student is homeless because she and the student are sharing housing with others.  Petitioner alleges that she left her home in the district due to an “abusive relationship.”  Petitioner further argues that the out-of-district residence is temporary, as it is the subject of foreclosure proceedings.  Petitioner seeks a determination that the student is homeless and, thus, entitled to attend respondent’s schools without payment of tuition.

Respondent contends that petitioner has failed to meet her burden of proving that the student’s residence is not fixed, regular, or adequate, or that the out-of-district residence is temporary or transitional. 

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 offers no evidence whatsoever 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 A.J., 62 Ed Dept Rep, Decision No. 18,142; Appeal of H.M., 60 id., Decision No. 17,903; Appeal of D.T., 58 id., Decision No. 17,558).

Additionally, there is no indication that the out-of-district residence is temporary or transitional.  Petitioner and the student have resided at the out-of-district residence for over five years.[2]  It is owned by the petitioner’s uncle, and the record contains no evidence that petitioner or the student need to vacate or that there is a fixed time limit as to how long petitioner or the student may remain (see Appeal of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).  While petitioner provided a stipulation order relating to an apparent foreclosure action between her uncle and a bank,[3] the mere threat of eviction due to foreclosure is insufficient to render a residence temporary or transitional (see Appeal of K.B., 59 Ed Dept Rep, Decision No. 17,697; Appeal of R.D., 56 id., Decision No. 16,945; Appeal of S.D., 53 id., Decision No. 16,608).  In this respect, petitioner has provided no proof that foreclosure or eviction from the out-of-district residence is imminent.  Therefore, petitioner has failed to demonstrate that the student is homeless, and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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