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Decision No. 17,872

Appeal of E.B.-C., on behalf of her children M.B. and J.B., from action of the Board of Education of the South Huntington Union Free School District regarding residency and transportation.

Decision No. 17,872

(July 8, 2020)

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. McManus, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the South Huntington Union Free 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 USC §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.  During the 2013-2014 school year, petitioner moved into an emergency housing shelter.  Petitioner alleged that the students were homeless and designated respondent’s district as the district of origin.  Respondent thereafter enrolled the students as homeless students.  In 2014, petitioner and her children moved to transitional housing in Wyandanch, New York, which is located outside of respondent’s district.  The student remained enrolled in the schools of the district as homeless students for the 2014-2015, 2015-2016 and 2016-2017 school years.  In September 2017, petitioner and her children moved to a second transitional housing location in Wyandanch (the “out-of-district residence”).  Respondent maintained the students’ enrollment as homeless students during the 2017-2018 and 2018-2019 school years.

In April 2019, respondent conducted a verification process to confirm the housing of individuals in temporary or transitional housing.  On or about April 4, 2019, a housing questionnaire was mailed to petitioner at the out-of-district residence.  Petitioner completed the housing questionnaire on or about May 7, 2019.  In the questionnaire, petitioner indicated that she and her children had been at the out-of-district residence since 2017 and were not at risk of losing the housing.

In a letter dated May 16, 2019, respondent’s homeless liaison informed petitioner that “[t]he district ha[d] determined [the students] [we]re permanently residing” at the out-of-district residence].  Therefore, the homeless liaison wrote, the students would be excluded from the district schools effective May 24, 2019.  The homeless liaison offered to discuss the matter further if petitioner so desired.

According to an affidavit submitted by the homeless liaison, on or about May 24, 2019, petitioner had a conference with her to discuss petitioner’s living situation.  During this conversation, petitioner informed the homeless liaison that she still resided at the out-of-district residence, which she characterized as “transitional housing” that she had secured with the assistance of a housing assistance organization.  The homeless liaison asserts that petitioner did not indicate that there was any time limit on her participation in the transitional housing program, or that she would have to vacate the out-of-district residence at any time.  The homeless liaison informed petitioner at the meeting that it appeared that her housing was permanent.

In a letter dated June 5, 2019, respondent’s assistant superintendent of student services informed petitioner of her determination that the students were neither district residents nor homeless within the meaning of McKinney-Vento and would be excluded as of the start of the 2019-2020 school year.  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 in “transitional housing.”  To substantiate her claims, petitioner submits a June 12, 2019 letter from the Executive Director of Resurrection House, Inc., the housing assistance organization, indicating that the out-of-district residence where petitioner resides is a part of its transitional housing program.  Petitioner also contends that the living conditions at the out-of-district residence “are not ideal” due to rules and restrictions imposed by the landlord and concerns regarding the habitability of the residence.

Respondent contends that petitioner has failed to meet her burden of proving that the out-of-district residence is not fixed, regular or adequate.

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
  6. 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
  2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[1]

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).

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  The record shows that petitioner and her family reside at the out-of-district residence, which, according to a home visit conducted by the homeless liaison in 2017, includes three bedrooms, a private bath, private eat-in kitchen, and a private living room.  The homeless liaison further observed during this home visit that:  (1) the students share a bedroom with bunk beds; (2) that another of petitioner’s children, who is not the subject of the instant appeal, has her own bedroom; and (3) petitioner has her own bedroom.  Petitioner offers no evidence on appeal to refute these observations.  Indeed, petitioner answered “No” to the question:  “Are child’s/youth’s parent(s) or legal guardians homeless?” on the State Education Department’s form petition for an appeal involving a homeless child and youth (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,412; Appeal of T.C., 55 id., Decision No. 16,502).

Additionally, petitioner has not established that her current residence is temporary or transitional.  Although the petition contains a letter from the housing assistance organization confirming that petitioner continues to participate in its transitional housing program, there is no evidence that petitioner needs to vacate her current residence at a particular time or, indeed, any time.[2]  Further, the fact that petitioner is renting the out-of-district residence on a month-to-month basis does not make the residence temporary or transitional (see Appeal of M.W., 46 Ed Dept 151, Decision No. 15,471).  Consequently, the record contains no evidence that petitioner or the students need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,412; Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of Galiano, 53 Ed Dept Rep, Decision No. 16,531).

Petitioner nevertheless argues that certain conditions set by her landlord and attributes of the out-of-district residence render it inadequate.  Petitioner contends that the following conditions render the out-of-district residence “not ideal”:  (1) she cannot invite guests to the residence without prior permission; (2) the residence has “no a/c”; (3) the landlord has entered the residence unannounced; (4) the residence contains “black mold” and “water damage”; (5) alcohol, candles, and live Christmas trees are not permitted in the residence; and (6) the residence has “no dryer.”  Initially, I note that petitioner produced no evidence in support of these claims, such as an affidavit from the landlord or photographs of the out-of-district residence.  Thus, petitioner’s conclusory allegations concerning “black mold” and “water damage” must be dismissed for lack of sufficient evidence.  Moreover, even assuming that the landlord imposed the alleged conditions of which petitioner complains, I do not find that such conditions render the out-of-district residence inadequate such that the students may be considered homeless.  I also do not find that the lack of air conditioning or a clothes dryer, ipso facto, renders the residence inadequate.  Consequently, petitioner has failed to prove that the students’ current address is inadequate.

Petitioner also contends that she is currently unable to afford a residence within respondent’s district.  While it is unfortunate that petitioner may not be able to afford an unsubsidized dwelling in respondent’s district, 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).

Therefore, petitioner has failed to meet her burden of proving that she lacks a fixed, regular and adequate nighttime residence.  Furthermore, there is no proof in the record that petitioner lives in the kind of shelter or other accommodation described in Education Law §3209(2).  Consequently, neither the provisions of Education Law 3209(2) and McKinney-Vento regarding choice of school district for homeless children, nor the provisions of Education Law §3209(4) and McKinney-Vento regarding the transportation of homeless children are applicable in petitioner’s circumstances (Appeal of M.W., 46 Ed Dept 151, Decision No. 15,471).

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




[1] 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.


[2] The housing assistance organization has not identified any end date for petitioner’s housing, and she has been residing in transitional housing for over five years, including more than two years at her current residence.