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Decision No. 17,556

Appeal of S.H., on behalf of her children N.C., D.C., D.C., and X.C., from action of the City School District of the City of Ithaca regarding residency and transportation.

Decision No. 17,556

(December 20, 2018)

Bond Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Ithaca (“respondent”) that her 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 or receive transportation.  The appeal must be dismissed.

The record indicates that petitioner resided in respondent’s district from 2013-2017 and during that time one or more of her children attended school there.

In December 2017, petitioner was evicted from her permanent residence and she and the students were temporarily placed in a shelter.

On or about December 6, 2017, one day after petitioner and the students lost their housing, petitioner obtained new permanent housing outside the district.  Because petitioner and the students experienced a housing loss in the middle of the school year, respondent considered them homeless pursuant to McKinney-Vento and permitted the students to attend its school for the remainder of the 2017-2018 school year.

In April 2018, respondent’s administration officer and homeless liaison (“liaison”) informed petitioner that because she and the students resided outside the district the students would not be permitted to attend respondent’s schools for the 2018-2019 school year.

By letter dated June 14, 2018, the liaison notified petitioner that, based on the information she shared with him on March 13, 2018, regarding her family’s housing situation, the students were not entitled to attend respondent’s schools because the family resided outside the district at a “fixed, regular and adequate living arrangement.”[1]  As a result, respondent notified petitioner that the students’ final date of attendance would be June 30, 2018.

Petitioner acknowledges that “as of right now we have a home to live in” but contends that the Department of Social Services (“DSS”) is helping her to pay a portion of her rent until the end of August 2018, and she cannot afford her rent on her own and “after Sept. 1, [her] landlord will start eviction process.”  Petitioner contends that the students are homeless and entitled to attend respondent’s school.

Respondent maintains that the students are not homeless pursuant to McKinney-Vento and are therefore ineligible to be enrolled in the district for the 2018-2019 school year.

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
  1. a child or youth who has a primary nighttime location that is:
  1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or


  1. 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, 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 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).

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.  Initially, I note that on the State Education Department’s form “Petition for an Appeal Involving Homeless Child or Youth,” petitioner answered the question “Are the Child’s/Youth’s parent(s) or legal guardians homeless” as follows: “as of right now we have a home to live in until evicted again.”  Petitioner submits no evidence that the students currently lack a fixed, regular and adequate nighttime residence or that they are currently living in the kind of shelter or other accommodations described in Education Law §3209(1).  Other than her conclusory assertions, petitioner submits no evidence that she needs to immediately vacate her current residence.  The potential for petitioner to become homeless in the future does not constitute homelessness in the present (Appeal of G.S. and M.S., 52 Ed Dept Rep, Decision No. 16,388).

Likewise, petitioner has not carried her burden with respect to her claim that her current living arrangement is temporary because DSS will cease providing rental assistance at the end of August 2018.  The fact that petitioner is renting a residence and may have difficulty paying her rent or other bills does not make the residence temporary or transitional (Appeal of G.S. and M.S., 52 Ed Dept Rep, Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).

Moreover, while the record contains evidence that petitioner may be having financial problems and has sought assistance with her rent, such evidence by itself does not establish that she is homeless under State or federal law.  While it is unfortunate that petitioner’s financial situation is unstable and that may impact her ability to pay rent, this does not constitute homelessness.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221; see Appeal of E.B., 47 id. 94, Decision No. 15,638; Appeal of S.D., 46 id. 116, Decision No. 15,459).

Based upon the record before me, petitioner has failed to demonstrate that she lacks a fixed, regular and adequate nighttime residence or that she is 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 petitioner is not homeless to be arbitrary or capricious.

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




[1] Petitioner was also notified that; because D.C. would be in his terminal year in his respective school building for the 2018-2019 school year, respondent was not excluding him from its schools.


[2]Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child 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.