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Decision No. 18,159

Appeal of R.L., on behalf of her child, from action of the Board of Education of the Clarkstown Central School District regarding residency and transportation.

Decision No. 18,159

(July 25, 2022)

Jaspan Schlesinger, LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Clarkstown Central School District (“respondent”) that her child (the “student”) is 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 the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioner and the student previously resided within respondent’s district.  In 2017, they moved to the student’s grandmother’s residence outside of the district (the “out-of-district residence”).  Respondent deemed the student homeless at that time.

In June 2020, respondent’s homeless liaison conducted an “end-of-year interview” with petitioner regarding her living arrangements.  Petitioner indicated that she had a set of keys to access the out-of-district residence.  She also asserted that she and the student “sleep in separate beds” therein.

In a letter dated June 14, 2021, the homeless liaison informed petitioner of the district’s determination that the student was not entitled to attend its schools as a homeless student.  This appeal ensued.

Petitioner asserts that the student is homeless because she is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.  For relief, she seeks a determination that the student is entitled to attend respondent’s schools as a homeless student.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the student is homeless within the meaning of McKinney-Vento or the Education Law.

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 her burden of proving that the student is homeless.  On appeal, petitioner describes the out-of-district residence as a “one-bedroom” apartment.  She also asserts that the residence is “not equipped or large enough for [their] personal items.”  However, petitioner has not submitted a photograph or detailed explanation of the living space or her belongings to substantiate such a claim (compare Appeal of T.R., 59 Ed Dept Rep, Decision No. 17,794).  Absent such proof, I cannot accept petitioner’s unsubstantiated assertion that the out-of-district residence is inadequate due to overcrowding (Appeal of M.G., 60 Ed Dept Rep, Decision No. 17,871).  In this respect, petitioner does not contest the homeless liaison’s assertion that she and the student “sleep in separate beds.”

Furthermore, there is no evidence that petitioner’s residence is temporary or transitional.  The record reflects that petitioner has resided at the out-of-district residence since 2017.  Petitioner does not assert, and the record contains no evidence indicating, that she or the student need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeals 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).

Petitioner additionally asserts that she received a cancer diagnosis in 2019, underwent surgery, and has been “unable to work due to treatment, surgery, [and] medically ordered quarantine due to COVID.”  While I am sympathetic to petitioner’s circumstances, personal or economic hardship alone does not establish that a residence is inadequate or temporary (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).

Based upon the record before me, petitioner has failed to demonstrate that the student is homeless within the meaning of McKinney-Vento insofar as she has not proven that the student lacks a fixed, regular and adequate nighttime residence or is living in the kind of shelter or other accommodations set forth in Education Law § 3209 (1) (a).  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.




[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.