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Decision No. 18,428

Appeal of V.M, on behalf of her children, from action of the Board of Education of the Amherst Central School District regarding residency and homelessness.

Decision No. 18,428

(July 1, 2024)

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

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Amherst 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, not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioner and the students previously resided within respondent’s district.  The record reflects that, in summer 2023, petitioner moved to a location outside of respondent’s district (the “out-of-district residence”).  When respondent informed petitioner that the students were ineligible to attend its schools, petitioner asserted that she was homeless.  By letter dated December 12, 2023, respondent invited petitioner to submit evidence to substantiate her claim.  Petitioner did not respond or submit any evidence.  By letter dated January 3, 2024, respondent found that the students were ineligible to attend its district as residents or homeless students.  This appeal ensued.

Petitioner asserts that the students are homeless because she and her family are sharing housing with a grandparent 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 prove that the students are homeless.  Initially, petitioner does not assert that the out-of-district residence is inadequate (Appeal of S.S., 63 Ed Dept Rep, Decision No. 18,300; Appeal of S.C., 59 id., Decision No. 17,710).  Indeed, petitioner asserts that the students “are in a safe space” at the out-of-district residence with their “own bedrooms and food & clothes.”

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 July or August 2023.  Petitioner does not assert, and the record contains no evidence indicating, that petitioner or the students need to vacate the out-of-district residence or that there is a fixed time limit as to how long they may remain (see Appeal of G.D. and K.D., 62 Ed Dept Rep, Decision No. 18,180; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  Thus, I cannot find that the out-of-district residence is temporary.  Therefore, petitioner has failed to demonstrate that the students are homeless, and the appeal must be dismissed.

To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.




[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.