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Decision No. 18,040

Appeal of L.S., on behalf of her grandchild, from action of the Board of Education of the Frontier Central School District regarding residency.

Decision No. 18,040

(August 24, 2021)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Frontier Central School District (“respondent”) that her grandchild (“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.  The appeal must be dismissed. 

Prior to the events leading to this appeal, petitioner and the student resided in respondent’s district, and the student attended respondent’s schools as a district resident.  In 2018, petitioner lost her in-district housing due to a fire.  Respondent allowed the student to continue attending its schools as a homeless student.  Petitioner and the student eventually relocated to their current residence, which is located outside of respondent’s district (the “out-of-district residence”) in May 2020. 

In a letter dated December 1, 2020, respondent asked petitioner to verify that she and the student were still homeless.  Petitioner did not respond to this request.  In a letter dated December 21, 2020, respondent determined that the student was neither homeless nor a district resident.  This appeal ensued.

Petitioner maintains that she and the student are homeless because, at the out-of-district residence, they are sharing housing with the student’s father, his girlfriend, and her two children until they “find a place to go.”  Petitioner seeks a determination that the student is homeless within the meaning of McKinney-Vento and State law and, thus, entitled to attend respondent’s schools and receive transportation. 

Respondent argues, among other things, that the student is not homeless because there is no evidence that petitioner’s living arrangements are temporary or inadequate.

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 demonstrate that the out-of-district residence is inadequate, temporary, or transitional.  Although petitioner and the student became homeless when they lost her home to a fire, she submits no evidence concerning the nature of the out-of-district residence where they now reside, such as its number of bedrooms.  Without any information about the adequacy of petitioner and the student’s living arrangements, I cannot find that the out-of-district residence is inadequate (Appeal of S.R., 58 Ed Dept Rep, Decision No. 17,663; Appeal of T.M., 57 id., Decision No. 17,165).

Moreover, petitioner has not established that the out-of-district address is temporary or transitional.  The only evidence in the record is a written statement by the owner of the out-of-district residence, who indicates that he is “allowing” petitioner and the student “to stay with [his] tenant ... until they find a permanent place to go.”  This statement does not suggest that petitioner or the students need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id. Decision 16,404; Appeals of L.B., 50 id. Decision No. 16,129).

While I empathize with the circumstances under which petitioner and the student lost their in-district housing several years ago, there is no evidence suggesting that the out-of-district residence is inadequate or temporary.  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious (see Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,910; Appeal of J.C., 59 id., Decision No. 17,828; Appeal of A.A., 57 id., Decision No. 17,168).

Given this disposition, I need not address the parties’ remaining contentions, including respondent’s procedural defense.  Petitioner retains the right to reapply for the student’s admission as a district resident 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.