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Decision No. 17,876

Appeal of C.R., on behalf of her child K.B., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 17,876

(July 13, 2020)

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

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter K.B. (“the student”), is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431, et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools tuition-free or receive transportation.  The appeal must be dismissed.

The record indicates that, on or about March 13, 2018, petitioner and the student were evicted from their in-district residence and thereafter became homeless.  Petitioner and the student then resided in a hotel for “about a month.”  Due to petitioner’s inability to afford the cost of a hotel room, petitioner and the student moved into petitioner’s aunt’s home, which is located outside of respondent’s district in Uniondale, New York, (the “out-of-district residence”).

Respondent indicates that it first learned of petitioner and the student’s circumstances on September 3, 2019, when petitioner sought to enroll the student in respondent’s district for kindergarten.  Respondent’s homeless liaison spoke with petitioner on that date and explained that, in his view, the student was not homeless.  Respondent enrolled the student in the district on September 6, 2019.

In a letter dated September 6, 2019, respondent’s director of pupil services (“director”) informed petitioner of the district’s determination that the student was not homeless and would be excluded from respondent’s schools effective October 10, 2019.  The director offered petitioner an opportunity to provide additional documentation demonstrating that she and the student resided in the district or that the student lacked a fixed, regular and adequate nighttime residence.

On September 9, 2019, petitioner attended a meeting with respondent’s homeless liaison and the director.  At this meeting, petitioner indicated that she lost her in-district housing in or about March 2018 and that she and the student resided at the out-of-district residence.

By letter dated September 9, 2019, respondent informed petitioner of its determination that the student was not eligible to attend respondent’s schools as a homeless student pursuant to McKinney-Vento.  This appeal ensued.

Petitioner contends that she and her son are homeless because they are sharing the housing of another at the out-of-district residence.  Petitioner requests that the student be permitted to continue attending respondent’s schools as a homeless student.

Respondent argues that the student is not homeless as defined by State and federal law, that it acted properly at all times, and that its decision was neither arbitrary nor capricious.  Respondent further argues that its school district is neither the district of origin nor the district of location for the student because the student was not eligible to attend respondent’s schools at the time petitioner and the student were evicted from the in-district residence in March 2018.

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
  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).

On this record, petitioner has not established that the out-of-district residence is inadequate.  Although petitioner identified the occupants of the out-of-district residence, she does not provide any details or evidence about the adequacy of the living conditions at the out-of-district residence (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 student 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).

In support of her appeal, petitioner submits documents concerning her eviction from the in-district residence; specifically:  (1) a notice to vacate issued by the Nassau County Sheriff’s Department dated March 13, 2018; (2) a warrant of eviction issued by the Nassau County District Court dated November 6, 2017; and (3) an undated stipulation of settlement between petitioner and the landlord for the in-district residence in which petitioner agreed to an immediate judgment of possession.[2]  These documents concern petitioner’s eviction from her in-district residence, which respondent does not contest, and have no bearing on whether the out-of-district residence is a fixed, regular, and nighttime residence.  Petitioner asserts that, following her eviction in March 2018, she and the student resided in a hotel for “about a month.”  Thus, it appears that petitioner and the student relocated to the out-of-district address well before the beginning of the 2018-2019 school year.

Petitioner has submitted no evidence that she or the student need to vacate the out-of-district residence or that there is a fixed time limit as to how long they may remain (see Appeal 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 student lacks a fixed, regular and adequate nighttime residence.  Therefore, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s school on the student’s behalf 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 stipulation indicated that the warrant of eviction would be stayed until January 31, 2018.