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Decision No. 17,139

Appeal of M.G., on behalf of her son W.G., Jr., from action of the Board of Education of the Massapequa Union Free School District regarding residency and transportation.

Appeal of M.G., on behalf of her son J.G., from action of the Board of Education of the Massapequa Union Free School District regarding residency and transportation.

Decision No. 17,139

(August 8, 2017)

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioner appeals the respective determinations of the Board of Education of the Massapequa Union Free School District (“respondent”) that W.G. and J.G. (“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 or receive transportation.   The appeals must be dismissed.

The record indicates that, prior to the events described in these appeals, petitioner and the students resided within respondent’s district.  In a letter dated December 5, 2016, petitioner notified the district that she and the students had relocated to an out-of-district apartment due to a “recent change in [their] family dynamics.”  Petitioner indicated that she would “love for her kids to be able to stay in [respondent’s] schools” and would attempt to locate housing within the district.

On or about December 19, 2016, the district received a second letter from petitioner requesting that the students be permitted to attend respondent’s schools tuition-free and indicating that she had concerns regarding her ability to pay rent at the out-of-district apartment.  Petitioner again stated that she would like to move back to the district but was unsure of when that might occur.

Respondent’s homeless liaison (“liaison”) contacted petitioner regarding her living situation and explained the procedures by which she could claim homeless status.  Thereafter, petitioner completed a “Designation of School District of Attendance for a Homeless Child,” form and student residency statement in connection with her assertion that the students were homeless. 

On or about December 19, 2016, following her completion and submission of the required forms, the liaison spoke with petitioner by telephone regarding the students’ living arrangements.  Petitioner informed the liaison that in early December 2016, due to a break-up with her then-boyfriend, she was forced to find a new living arrangement.  Petitioner further informed the liaison that she was unable to find a residence within the geographic boundaries of the district, and had moved into a two-bedroom apartment outside the district.  Petitioner stated that she and the students were the only persons residing in the apartment and that the students shared one bedroom, while she occupied the other.  She further stated that each student had his own bed and that the apartment had running water, hot water, heat, electricity, and an entry door that locked.  Petitioner also indicated that she paid the rent for the apartment herself, and that she had not applied for, or received, any public assistance.  Petitioner additionally indicated to the liaison that she was “going through the homeless determination process in the hope” that her children could attend respondent’s schools and receive transportation while they resided in the out-of-district apartment.

By letter dated December 21, 2016, the liaison notified petitioner of his determination that the students’ out-of-district apartment was a fixed, regular, and adequate nighttime residence and, thus, the students did not qualify as homeless children pursuant to State and federal law.  The liaison also informed petitioner of her right to appeal that determination.

The liaison also notified petitioner that, pursuant to McKinney-Vento, the students were eligible to complete the 2016-2017 school year in the district but that transportation would not be provided.   This appeal

Petitioner claims that she is unable to find an appropriate living arrangement within the district and that she and the students are sharing the housing of another person due to loss of housing, economic hardship or a similar reason.

Respondent contends that petitioner has not established that the students lack a fixed, regular, and adequate night-time residence and, therefore, they are not homeless under McKinney-Vento.  Respondent contends that it acted properly and that its determination that the students are not homeless is not arbitrary, capricious or irrational.

At all times relevant to this appeal, Education Law §3209(1)(a) defined “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;

(iv)awaiting foster care placement[2]; or

(v)a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this

(vi)subparagraph or subparagraph two of this paragraph; or

(2)a child or youth who has a primary

(3)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).

On this record, the students do not meet the definition of homeless children under either State or federal law.  They have a fixed, regular night-time residence with their mother and there is no evidence in the record, nor does petitioner allege, that such residence is inadequate.  Petitioner asserts only that, due to a change in her domestic situation, she and her children “were forced to move to a more affordable place [as] [she] was unable to find anything appropriate “within respondent’s in district”.  She informed the liaison that the out-of-district residence is a two-bedroom apartment and that she resides there with only the two students.  The students share a bedroom and each has had own bed while petitioner occupies the other bedroom.   Petitioner also represented to the liaison that the apartment is equipped with all living necessities including running water, hot water, heat, electricity and entry door that locks, etc.  Lastly, she generally indicated that the apartment had acceptable living conditions for her and the students.  This evidence demonstrates that the out-of-district address is adequate and petitioner has submitted no evidence to the contrary.

Petitioner has also failed to establish that her current situation is temporary or transitional.  The record contains no evidence that petitioner needs to vacate her current residence or that there is a fixed time limit as to how long she may remain (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Petitioner indicates that she is worried about her ability to pay rent, that she lives paycheck to paycheck and that, if she loses even one paycheck, she is in danger of losing her housing.  However, these statements alone do not demonstrate that petitioner and the students will lose their housing imminently or at any particular time in the near future. (see Appeals of M.S., 55 Ed Dept Rep, Decision No. 16,792; Appeal of A.W., 53 id., Decision No. 16,559).  Moreover, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  Petitioner also indicates that she will continue to search for a residence within district boundaries.  The fact that petitioner is renting a residence outside the district and wishes to move back in the district does not make her residence temporary or transitional (see Appeal of J.H., 52 Ed. Dept Rep, Decision No. 16,376).[3]  Indeed, in her verified petition, petitioner checked “No” in response to an inquiry of whether the students’ parents are homeless.

Based upon the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Accordingly, I cannot find that respondent’s determination that the students are not homeless is arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to re-apply for admission on behalf of the students at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.  




[1] Effective October 1, 2016, §11432(g)(3)(E)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 U.S.C. §11432(g)(3)(E)(i)).  Therefore, no application for a stay in this appeal was necessary.


[2] Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 U.S.C. §11434(a).  Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017.  However, those changes are not relevant to a determination in this appeal.


[3] The record does not contain any evidence regarding petitioner’s attempts to obtain housing within the district.