Decision No. 18,035
Appeal of E.S., on behalf of her children, from action of the Board of Education of the North Syracuse Central School District regarding residency.
Decision No. 18,035
(August 23, 2021)
Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the North Syracuse Central School District (“respondent”) that her two 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, are not entitled to attend the district’s schools tuition-free. The appeal must be dismissed.
Prior to the events leading to this appeal, petitioner and the students resided in respondent’s district, and the students attended respondent’s schools. In 2017, petitioner lost her in-district housing in connection with a separation from her former spouse. Respondent’s homeless liaison thereafter determined that the students were eligible to continue attending the district’s schools as homeless students. Also, in 2017, petitioner and the students moved into petitioner’s mother’s residence, located outside of respondent’s geographical boundaries (the “grandmother’s residence”).
Based on the duration of petitioner’s residence at the grandmother’s residence, in or about July 2020, the homeless liaison reviewed the students’ entitlement to attend its schools. On July 31, 2020, the homeless liaison spoke with petitioner about her living arrangements. According to an affidavit submitted by the homeless liaison, petitioner stated that she lived in the grandmother’s residence with her mother, her new husband, the students, and her grown child.
By letter dated July 31, 2020, the homeless liaison advised petitioner of her determination that the students were no longer homeless and were therefore not entitled to enrollment at respondent’s schools. This appeal ensued.
Petitioner maintains that she and the students are homeless because they are sharing the housing of her mother due to petitioner’s economic situation. Petitioner seeks a determination that the students are homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.
Respondent argues that the students are not homeless because there is no evidence that petitioner’s living arrangements are temporary or inadequate.
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.” 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 ).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioner has failed to demonstrate that the grandmother’s residence is inadequate, temporary, or transitional. According to petitioner, she and the students became homeless when she separated from the students’ father. She avers that she used to have an in-home daycare, but that she has “had a hard time building client[elle] back up w[ith]out a home.” However, she submits no evidence that the grandmother’s residence is not a fixed, regular, and adequate nighttime residence.
Respondent, by contrast, has submitted evidence that the grandmother’s residence is a 1,444 square-foot, single-family home with four bedrooms and two bathrooms. Respondent further indicates that the grandmother’s residence is valued in excess of the median home value of the village in which it is located. Respondent also asserts that the homeless liaison asked petitioner whether her living arrangements were temporary or inadequate, and that petitioner “merely advised that her economic situation did not allow her to obtain housing that was separate from her mother.” Accordingly, on this record, the appeal must be dismissed (see Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,910; Appeal of J.C., 59 id., Decision No. 17,828; Appeal of A.A., 57 id., Decision No. 17,168).
Although the appeal must be dismissed for the reasons set forth above, petitioner retains the right to reapply for admission to respondent’s school on the students’ behalf as district residents at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Education Law § 3209 excludes from the definition of “homeless child” a child who is in a foster care placement or receiving educational services under certain provisions of Education Law § 3202 or articles 81, 85, 87, or 88 of the Education Law – circumstances not presented in this appeal.