Appeal of K.S., on behalf of her children S.K., M.K., and C.K., from action of the Board of Education of the Harpursville Central School District regarding residency and transportation.

Decision No. 17,875

(July 9, 2020)

Coughlin & Gerhart, LLP, attorneys for respondent, Angelo D. Catalano, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Harpursville Central School District (“respondent”) that her children (the “students”) are not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 US.C. §11431, et seq., “McKinney-Vento”).  The appeal must be dismissed.

Prior to the events described in this appeal, the students were enrolled in respondent’s schools as district residents.  On August 9, 2019, there was a fire at petitioner’s house located within respondent’s district.  While unclear, respondent asserts that petitioner reported that she and the students “were ... living temporarily with another family” as of August 19, 2019.  On or about August 30, 2019, petitioner and the students relocated to a residence located outside of respondent’s district in Pennsylvania (the “Pennsylvania residence”).

In a letter dated September 3, 2019, respondent’s superintendent informed petitioner of his determination that the students were not homeless because the students “secured fixed, regular, and adequate housing prior to the start of the 2019-2020 school year” at the Pennsylvania address.[1]  This appeal ensued.

Petitioner contends that the students are homeless and that her children lack a fixed, regular and adequate night-time residence because they are sharing the housing of other persons due to loss of housing and economic hardship.  Petitioner alleges that she, the students, and the students’ father share housing with the students’ grandmother in order to “share expenses until [they] find [a] more permanent option.”  Petitioner requests a determination that the students are homeless and, thus, entitled to remain enrolled in respondent’s schools without payment of tuition and to receive transportation.

Respondent contends that petitioner has failed to meet her burden of proving that the Pennsylvania residence is not fixed, regular and adequate.  Respondent further contends that petitioner’s children are not entitled to transportation between the Pennsylvania residence and the school they attend because they are not homeless within the meaning of McKinney-Vento and Education Law §3209.

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:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. 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;
5. an unaccompanied youth ...; or
2. a child or youth who has a primary nighttime location that is:
3. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
4. 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 §100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento.

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 petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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). 

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  The record shows that since about August 30, 2019, petitioner and the students have resided at the petitioner’s residence which is fixed, regular and adequate housing outside of respondent’s district.  Although petitioner identified the occupants of the out-of-district residence – namely, herself, her spouse, the students, and her mother – she does not provide any details or evidence about the adequacy of the living conditions there (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  Furthermore, while petitioner checked a box on her form petition indicating that she and the students are “sharing the housing of other persons,” the mere assertion that a student is sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of C.M., 58 Ed Dept Rep, Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146).

While petitioner indicates that she and her children are residing at the Pennsylvania residence “to share expenses until [they] find [a] more permanent option,” I note that the Commissioner has held that economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808).

Additionally, there is no proof that petitioner’s current residence is temporary or transitional.  Other than her assertion that the residence is “temporary,” the record contains no evidence that petitioner or the students need to vacate the Pennsylvania residence or that there is a fixed time limit as to how long they may remain (see Appeals 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).

Accordingly, based upon the record before me, I find that petitioner has not met her burden of proving that the students lack a fixed, regular and adequate nighttime residences.  Therefore, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

While the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s school on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE