Appeal of A.A., on behalf of his children A.A., E.A., M.A. and F.A., from action of the Board of Education of the North Syracuse Central School District regarding residency. 

Decision No. 17,168

(August 29, 2017)

Bond Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Syracuse Central School District (“respondent”) that his children, A.A., E.A., M.A., and F.A. (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.  The appeal must be dismissed.

Three of petitioner’s children, A.A., E.A., and M.A., began attending school in respondent’s district in 2015.  At that time, petitioner and the students lived with petitioner’s brother at an address located within the district.  According to respondent, it “treated petitioner and his children as being homeless, since they were doubled up in his brother’s home while searching for a home of their own.”

In June 2016, petitioner and the students moved in with petitioner’s father to an address outside of the district (“out-of-district residence”).  According to respondent, it “continued to treat petitioner’s children as homeless” because it was informed that the students were “doubled up” at the out-of-district residence and that the out-of-district residence was “temporary.”    

In May 2017, petitioner sought to enroll his fourth child, F.A., in the district’s kindergarten.  This caused respondent to “reexamine” petitioner and the student’s “residency status.” An affidavit from respondent’s Executive Director for Data, Accountability, Social Studies and Music (“executive director”) indicates that she reviewed publicly available real property tax records maintained by the Onondaga County Department of Finance, Office of Real Property Services which revealed that the out-of-district address is a two-family residence.  The executive director stated that she contacted petitioner and told him that it appeared that he and the students were permanently housed.  She also stated that petitioner told her that their residence at the out-of-district address is only temporary while they search for a home within the district.  Finally, the executive director avers that she asked petitioner to provide proof that his residence at the out-of-district residence was “temporary or inadequate” and that petitioner “was unable to provide such proof.”

By letters dated May 16, 2017, the executive director notified petitioner that A.A., E.A. and M.A. were not entitled to attend school in the district.[1]  The letter stated that the students would be excluded from the public schools of the district by the end of the day on June 30, 2017.  This appeal ensued.[2] 

Petitioner contends that the students are homeless and therefore, should be allowed to continue attending school in respondent’s district.  Petitioner asserts that he and the students are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner further states that he and his family are living with his father “till finding a house and till now we haven’t found a house.”

Respondent argues that that petitioner has failed to meet his burden of proof and asserts that the children are not homeless under applicable law.  Respondent also contends that its decision was reasonable and rational.    

Education Law §3209(1)(a) defines “homeless child” as:

(1)a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

(i)sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii)living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii)abandoned in hospitals; or

(iv)a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;

(v)an unaccompanied youth, as defined in section seven hundred twenty-five of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act; or

(2)a child or youth who has a primary nighttime location that is:

(i)a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

(ii)a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings....

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on the record before me, I find that petitioner has not established that the students meet the definition of a homeless child under either State or federal law. 

Petitioner contends that he and the students are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  The petition indicates that petitioner and the students “are currently living with father [sic] family” and lists two other people with whom the children are sharing housing.  An affidavit from respondent’s executive director avers that the out-of-district address is a two-family residence.  Petitioner has provided no description of the living arrangement and no information about its adequacy and, therefore, on this record, I find that petitioner has not met his burden of proving that his current residence is inadequate (see Appeal of A.M., 57 Ed Dept Rep, Decision No 17,146; Appeal of D.W., 56 id., Decision No. 16,924).

Petitioner has also not established that his current residence with his father at the out-of-district address is of a temporary or transitional nature.  Respondent avers, and petitioner does not refute, that petitioner and the students have been living in his father’s residence since June 2016.  The fact that petitioner asserts that his family intends to move back to the district at some point does not establish that his current residence is temporary or transitional within the meaning of Education Law §3209 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404). In addition, there is no evidence that petitioner needs to vacate his current residence or that there is a time limit as to how long his family can reside there (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.D., 56 id., Decision No. 16,945; Appeal of A.W., 53 id., Decision No. 16,559).

Accordingly, based on the record before me, I find that petitioner has not met his burden of proving that the students lack a fixed, regular and adequate nighttime residence and therefore, respondent’s determination that the students are not homeless was not arbitrary or capricious. 

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on his children’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration. 

THE APPEAL IS DISMISSED.

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