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Decision No. 17,892

Appeal of D.S. and E.S., on behalf of their children E.S., A.S. and E.S., from action of the Board of Education of the Brentwood Union Free School District regarding residency and transportation.

Decision No. 17,892

(August 4, 2020)

            Bond, Schoeneck & King, PLLC, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel.

Tahoe., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Brentwood Union Free School District (“respondent”) that their children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools.  The appeal must be dismissed.

Prior to the events described in this appeal, petitioners and the students resided at a location within respondent’s district (the “in-district residence”). In October 2019, petitioners informed respondent that they and the students no longer resided within respondent’s district and were renting a residence from a family member located in a neighboring school district (the “out-of-district residence”).  According to petitioners, they moved after the in-district residence went into foreclosure.

In a letter dated December 11, 2019, respondent’s coordinator of registration and census notified petitioners of the district’s determination that the students were not homeless because they currently rented an out-of-district residence that was fixed, regular and adequate.  This appeal ensued.

Petitioners allege that the students are homeless as defined by McKinney-Vento because they are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  Petitioners further allege they did not willingly move out of the in-district residence but had to do so because they faced eviction from the in-district residence.  Petitioners seek a determination that the students are homeless and, thus, entitled to attend respondent’s schools tuition-free and receive transportation.

Respondent contends that petitioners have failed to demonstrate that the students are homeless within the meaning of McKinney-Vento.  Respondent asserts, inter alia, that the out-of-district residence is a fixed, regular, and adequate nighttime residence that is not temporary or transitional.

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).

Petitioners failed to meet the burden of proving that the students are homeless under State or federal law. Initially, petitioners failed to demonstrate that the out-of-district residence is inadequate.  Petitioners indicate that they live on the first floor of a two-story house of a family member.  Petitioners indicate that the family member resides on the second floor of the house, which includes a living room, kitchen, bathroom, and bedroom.  Petitioners further assert that: (1) two of their children who are the subject of this appeal share a bedroom on the first floor; (2) the third child shares a second bedroom with another of petitioners’ children who is not the subject of this appeal; and (3) petitioners sleep in an “open area” that is “behind a curtain.”

While petitioners’ and their children’s living conditions may not be ideal, I cannot find that the above circumstances are so inadequate as to render the students homeless (Appeal of M.S. and C.C., 59 Ed Dept Rep, Decision No. 17,749 [residence not inadequate where three children shared two beds and slept in the same room]; Appeal of A.S., 58 id., Decision No. 17,559 [residence not inadequate where petitioner alleged that she and her husband and two of her children occupied one bedroom with two twin beds and a third child and petitioner’s parents slept in the living room, where petitioner’s parents shared a twin bed and the third student slept on the couch]).  Petitioners submit photographs that generally corroborate their contentions summarized above, but do not support a finding that the out-of-district residence is inadequate.

Petitioners have also failed to establish that their current residence is temporary or transitional.  Petitioners do not allege that they and the students must vacate the current residence or that there is a limit as to how long they may remain there (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeals of V.C.B., 56 id., Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987). 

Finally, to the extent petitioners allege that they are homeless due to economic hardship, proof of 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).  Moreover, such claim is rebutted by, according to respondent, petitioner D.S.’s admission that petitioners rent their living space at the out-of-district residence from the family member for $1,400 per month.  While not dispositive of petitioners’ economic circumstances or homeless status, this evidence generally supports respondent’s determination that the out-of-district address is fixed, regular and adequate (see Appeal of A.N., 56 Ed Dept Rep, Decision No. 16,992; Appeal of A.B., 56 id., Decision No. 16,926).

Therefore, based upon the record before me, I cannot find that respondent’s determination that petitioners and the students are not homeless to be arbitrary or capricious.  Although the appeal must be dismissed for the reasons set forth above, I note that petitioners retain the right to reapply for admission to respondent’s schools on their children’s behalf at any time, 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.