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Decision No. 18,163

Appeals of C.M., on behalf of her two children, from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency and transportation.

Decision No. 18,163

(July 25, 2022)

Ingerman Smith L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Bayport-Blue Point Union Free School District (“respondent”) that her two 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 the district’s schools or receive transportation.  Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioner and the students previously resided within respondent’s district.  In 2017, respondent learned that the family moved to a location outside of the district (“the out-of-district residence”).  Respondent deemed the students homeless at that time.

In 2019, the out-of-district residence was destroyed by fire.  Petitioner and the students moved to a series of addresses thereafter.  Respondent continued the students’ enrollment as homeless students.

In or about November 2020, petitioner and the students moved back to the out-of-district residence, which had been rebuilt. 

On or about August 3, 2021, the homeless liaison spoke with petitioner regarding her residency status.  Petitioner indicated that she and the students continued to reside at the out-of-district residence, which had four bedrooms and three bathrooms.

In March 2022, the district’s transportation coordinator and residency officer (“residency officer”) conducted a home visit at the out-of-district residence.  He observed that the residence “appeared to be completely renovated” and that each student had her own separate bedroom and bed.

In a letter dated March 15, 2022, respondent informed petitioner of the district’s determination that the students were not entitled to attend its schools as homeless students.  These appeals ensued.

Petitioner asserts that the students are homeless because she and her family are 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 students are entitled to attend respondent’s schools and receive transportation.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the students are 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 students are homeless.  While petitioner asserts that the students’ grandparents reside at the out-of-district residence, there is no evidence that the home, which contains four bedrooms, is overcrowded (see Appeal of L.T., 58 Ed Dept Rep, Decision No. 17,555).  Additionally, petitioner’s contention that the “children share [a] bedroom” is inconsistent with the residency officer’s observations described in his affidavit.  Petitioner offers no additional information to support her contention, such as affidavits or photographs (Appeal of A.G., 55 Ed Dept Rep, Decision No. 16,818).

Further, 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 November 2020.  Petitioner does not assert, and the record contains no evidence indicating, that she or the students 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).

Finally, although petitioner describes a series of financial hardships from 2020 to the present, the Commissioner has long held that economic hardship, in and of itself, is not sufficient to establish homelessness (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).

Thus, based upon the record before me, petitioner has failed to demonstrate that the students are homeless within the meaning of McKinney-Vento insofar as she has not proven that the students lack a fixed, regular, and adequate nighttime residence or are 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 students are not homeless to be arbitrary or capricious.[2]




[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.


[2] The evidence in the record suggests that one of the students is in fourth grade in an elementary school.  As such, respondent must consider whether she is entitled to complete an additional year in respondent’s district as a homeless student (see Education Law § 3209 [c] [1] [“where the public school district in which a homeless child is temporarily housed is the school district of origin, the homeless child shall be entitled to attend the schools of such … for the duration of the homelessness and until the end of the school year … and for one additional year if that year constitutes the child’s terminal year in such building.”).