Appeal of F.S., on behalf of his children, from action of the Board of Education of the City School District of the City of White Plains regarding residency and homelessness.

Decision No. 18,480

(August 22, 2024)

Keane & Beane, P.C., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that his two children (the “students”) are neither district residents nor homeless 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 students attended respondent’s schools as district residents.  In December 2023, respondent learned that petitioner had been evicted from his in-district residence.  Respondent contacted petitioner, who confirmed this information.  When asked if he believed the students were homeless, petitioner informed respondent that the students “were not homeless as they were living with [their mother]” at a location outside of the district (the “out-of-district residence”).

On January 4, 2024, respondent informed petitioner that it had determined that the students were not district residents.  Petitioner thereafter alleged that the students were homeless.  Respondent allowed the students to remain enrolled while it completed “the applicable procedures under the McKinney-Vento Act.” 

Respondent proceeded to conduct surveillance of the out-of-district residence on January 26, 30, 31, and February 1, 2024.  This evidence portrayed the students departing the out-of-district residence in the early morning hours to go to school.

By letter dated February 29, 2024, the district informed petitioner of its final determination that the students were not homeless because they had “become permanently housed during the 2023-2024 school year.”  This appeal ensued.  

Petitioner asserts that the students primarily live with him.  He further asserts that, after his eviction from the in-district address, “the [students] were invited to go between [their mother’s and grandmother’s] homes until [he] [could] secure permanent housing” within the district.  Petitioner requests a determination that the students are entitled to attend respondent’s schools as homeless students.

Respondent contends that petitioner has failed to meet his burden of proving that the students’ residence is inadequate or temporary.

Education Law § 3202 (1) provides, in pertinent part, that “[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.”  The purpose of this provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

Moreover, 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).

With respect to his claim of residence, petitioner submits an unsworn, unsigned email from the students’ mother stating that the students live primarily with petitioner.  This email, which has limited probative value,[2] is contradicted by respondent’s surveillance evidence. That evidence consistently depicted the students residing with their mother at the out-of-district residence.  With respect to homelessness, petitioner submits no evidence suggesting that the out-of-district residence is inadequate or temporary.  Without such evidence, there is no basis to deem the students homeless (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165). 

Thus, petitioner has failed to demonstrate that the students are district residents or that they lack a fixed, regular, and adequate nighttime residence.  As such, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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