Appeal of L.W., on behalf of her children, from action of the Board of Education of the Orchard Park Central School District regarding residency and homelessness.

Decision No. 18,425

(July 1, 2024)

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 Orchard Park Central 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, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Prior to the events described in this appeal, the students were enrolled in respondent’s schools as district residents.  In November 2022, the owner of petitioner’s in-district residence sold petitioner’s in-district housing.  Petitioner and the students then moved to a friend’s home located outside of the district (the “out-of-district residence”).  Respondent allowed the students to continue to attend its schools as homeless students. 

On numerous occasions in May through July 2023, respondent requested updated housing information from petitioner but did not receive a response.  In August 2023, respondent’s homeless liaison met with petitioner to discuss her housing status.  Petitioner advised the homeless liaison that she and the children continued to reside at the out-of-district residence.  Petitioner did not assert that the residence was temporary or inadequate.

By letter dated July 27, 2023, respondent determined that the students were no longer entitled to attend the district’s schools because they permanently resided at the out-of-district residence.  This appeal ensued. 

Petitioner claims that the students are homeless within the meaning of McKinney-Vento because they are temporarily residing at the out-of-district residence.  Petitioner seeks a determination that the students are homeless and, thus, entitled to attend respondent’s schools without payment of tuition.

Respondent contends that petitioner has failed to meet her burden of proving that the out-of-district residence is not fixed, regular, or adequate.

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, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  Petitioner indicates that she and the students reside at the out-of-district residence, which has beds, bedrooms, a refrigerator, and utilities.  Petitioner does not identify any other aspects of the home or her living circumstances.  Therefore, she has failed to establish that the out-of-district residence is inadequate (Appeal of M.-A.-C., 62 Ed Dept Rep, Decision No. 18,177; Appeal of A.J., 62 id., Decision No. 18,042; Appeal of H.M., 60 id., Decision No. 17,903).[2]

Petitioner has also failed to establish that the out-of-district address is temporary or transitional.  The record reflects that the students have resided at the out-of-district address with petitioner since at least November 2022.  There is no indication that the students need to vacate the out-of-district 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, petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate nighttime residence.  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious. 

THE APPEAL IS DISMISSED.

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