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Decision No. 18,024

Appeal of S.T., on behalf of his children, from action of the Board of Education of the Wallkill Central School District regarding residency.

Decision No. 18,024

(August 3, 2021)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Alison E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Wallkill Central School District (“respondent”) that his 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, not entitled to attend respondent’s schools.  The appeal must be dismissed.

Prior to the events described in this appeal, petitioner, his spouse, and the students resided in a single-family home located in respondent’s district (the “in-district address”).  The record indicates that, in or about October 2020, petitioner’s family sold the in-district address after petitioner lost his job.  Petitioner and his family subsequently moved into the home of petitioner’s in-laws, located in Wappingers Falls, New York (the “Wappingers Falls address”).  Petitioner asserts on appeal that he and his spouse have been seeking a new home in respondent’s district but “did not anticipate the extremely competitive real estate market,” and “have not been able to find suitable housing.”

Respondent’s director of pupil personnel services and homeless liaison (“homeless liaison”) avers that he met with petitioner to discuss the students’ residency and homeless status on December 7, 2020.  During this meeting, the homeless liaison told petitioner that he “would need more information on their living situation.”

In a letter to the homeless liaison dated January 22, 2021, a real estate agent working with petitioner indicated that petitioner had placed bids on several homes within respondent’s district.  Petitioner and the homeless liaison spoke by phone on February 23, 2021 and met virtually on February 25, 2021 to discuss petitioner’s ongoing search for a new home in respondent’s district.

By letter dated February 26, 2021, the homeless liaison informed petitioner that neither he nor the students were homeless for numerous reasons, including the fact that they were not forced to sell their home at the in-district address.  The letter stated that the students would no longer be eligible to attend respondent’s schools, effective March 29, 2021.  This appeal ensued.

Petitioner claims that the students are homeless within the meaning of McKinney-Vento because they are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner seeks a determination that the students are homeless and, thus, entitled to attend respondent’s schools without payment of tuition.

Respondent argues that its determination was rational, and that petitioner has failed to establish that the students are entitled to attend its schools as homeless students.

Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “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 section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 his burden of proving that the students lack a fixed, regular, and adequate nighttime residence.  Even assuming that petitioner was forced to sell the in-district address out of economic necessity, petitioner provides no information regarding the nature or characteristics of the Wappingers Falls address and does not allege that it is inadequate (see e.g. Appeal of T.B.-D., 58 Ed Dept Rep. Decision No. 17,605, Appeal of J.B., 56 id., Decision No. 17,115).  Respondent asserts that, according to internet search results, the Wappingers Falls address is a 3,500-square-foot home with three bedrooms and two bathrooms.  Although petitioner indicates that the students share the Wappinger Falls address with their grandparents, the mere assertion that the students are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of C.R., 60 Ed Dept Rep, Decision No. 17,876; Appeal of C.M., 58 id., Decision No. 17,664).

Petitioner has also failed to establish that the Wappinger Falls address is temporary or transitional.  There is no indication that the students need to vacate the Wappinger Falls address or that there is a fixed time as to how long they may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864; Appeal of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  

Therefore, based upon the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular, and adequate nighttime residence or are living in a shelter or other temporary living accommodation as set forth in Education Law § 3209.  Accordingly, I cannot find respondent’s determination to be arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf on the basis of residency at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.




[1] Education Law § 3209 excludes from the definition of “homeless child” a child who is 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.