Appeal of M.W., on behalf of her children, from action of the Board of Education of the Syosset Central School District regarding residency and homelessness.

Appeal of A.K., on behalf of her children, from action of the Board of Education of the Syosset Central School District regarding residency and homelessness.

Decision No. 18,484

(August 28, 2024)

The Law Office of Suzanne Myron, attorneys for petitioner, Suzanne Myron, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Steven A Goodstadt, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioners M.W. and A.K. appeal determinations of the Board of Education of the Syosset Central 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, not entitled to attend respondent’s schools.  Because the appeals present common issues of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed.

Petitioners, who are sisters-in-law, enrolled their children in respondent’s district in July 2020, asserting that they resided at a location within the district.  Respondent proceeded to conduct a residency investigation in May and June of 2023, which revealed that the students were instead living with petitioner M.W.’s mother-in-law outside of the district (the “out-of-district address”). 

By letters dated June 28, 2023, respondent notified petitioners of its preliminary determination that the students were nonresidents. Over the summer, the district met with petitioner M.W., who asserted that she and her family had been temporarily living at the out-of-district address to care for a sick relative.

In August 2023, before respondent issued a final residency determination, petitioners enrolled the students in the district using a second in-district address.  Thereafter, in September 2023, petitioner M.W. informed respondent that she and the students would be unable to live at the second in-district address due to construction.   In a telephone call with respondent’s deputy superintendent, petitioner M.W. asserted that the construction would take “quite some time.”

On November 21, 2023, petitioner M.W. contacted the deputy superintendent and asserted that she could not reside at the second in-district address because it contained mold.  As proof, she submitted a letter from a construction company that did not include any reference to mold.  She also submitted a doctor’s note stating that petitioner “ha[d] been experiencing asthma exacerbations due to the mold exposure in her home.”[1]  She indicated that she and her family would remain at the out-of-district address. 

By letter dated January 3, 2024, respondent informed petitioner that the students were ineligible to attend the district’s schools because petitioners were neither district residents nor homeless.  Respondent further found that the out-of-district address was “a fixed, regular and adequate nighttime location.”  These appeals ensued.

Petitioners claim that the students are homeless within the meaning of McKinney-Vento because they “moved in temporarily” with petitioner M.W.’s mother-in-law at the out-of-district address due to mold, which rendered the second in-district address uninhabitable.  Petitioners seek a determination that the students are homeless.

Respondent argues that its determination was not arbitrary or capricious and that petitioners have failed to establish that the students are entitled to attend its schools as homeless students.

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).

Petitioners have failed to meet their burden of proving that the students lack a fixed, regular, and adequate nighttime residence.  Petitioners do not allege, or provide any evidence, that the out-of-district address is inadequate (Appeal of C.M., 62 Ed Dept Rep, Decision No. 18,144; Appeal of E.L., 60 id., Decision No. 17,885; Appeal of J.B., 56 id., Decision No. 17,115).  Sharing the housing of others does not, without more, establish that a residence is inadequate (Appeal of C.R., 60 Ed Dept Rep, Decision No. 17,876; Appeal of Appeal of C.M., 58 id., Decision No. 17,664).[3]

Petitioners have also failed to establish that the out-of-district address is temporary or transitional.  Petitioners and the students have resided at the out-of-district address since approximately August 2023.  I am unpersuaded by the statement of petitioner M.W.’s mother-in-law that the students will need to vacate the out-of-district address once the mold is remediated.  Petitioner M.W.’s mother-in-law does not explain why she can only accommodate the families for a limited time (see Appeal of T.S., 61 Ed Dept Rep Decision No 18,029; Appeal of F.B., 50 id., Decision No. 16,197).

Finally, to the extent petitioners claim that they and the students are temporarily absent from the second in-district address, this doctrine does not apply as there is no indication in the record that petitioners actually resided at the first or second in-district addresses (see e.g. Appeal of T.H., 59 Ed Dept Rep, Decision No. 17,722; Appeal of S.T.V., 57 id., Decision No. 17,371; Appeal of Zhang and Xue, 54 id., Decision No. 16,733).[4]

Therefore, based upon the record before me, petitioners have failed to demonstrate that the students lack a fixed, regular, and adequate nighttime residence or are living in a shelter or other temporary living accommodation as set forth in Education Law § 3209.  Accordingly, I cannot find that respondent’s determination that the students are not homeless was arbitrary or capricious.

THE APPEALS ARE DISMISSED.

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