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Decision No. 18,435

Appeal of C.G., on behalf of her grandchildren, from action of the Board of Education of the Amityville Union Free School District regarding residency and homelessness.

Decision No. 18,435

(July 1, 2024)

Guercio & Guercio, LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Amityville Union Free School District (“respondent”) that her two grandchildren (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 tuition-free.  The appeal must be dismissed.

Petitioner enrolled one of the students in respondent’s schools in 2008 and the other in 2022 based on their residency within the district (the “in-district address”).  On or about December 12, 2022, petitioner informed the district that she and the students had moved to a new residence in a neighboring district (the “out-of-district address”).  In connection therewith, she completed a residency form asserting that the out-of-district address represented a “temporary living situation.”  Respondent permitted the students to continue attending district schools for the remainder of the 2022-2023 school year as homeless students.

On or about March 21, 2023, respondent requested that petitioner provide an update on her housing status; petitioner did not respond.  In a letter dated August 22, 2023, respondent informed petitioner of its determination that the students were no longer homeless because they had established a fixed, adequate, and regular residence at the out-of-district address.  The letter further informed petitioner that she had until August 30, 2023 to submit additional information regarding the students’ housing status.  Petitioner did not respond or provide any further information.  By letter dated October 2, 2023, respondent informed petitioner that the students’ last day of attendance in the district would be October 11, 2023.  This appeal ensued.  

Petitioner contends that the students are homeless because of federal affordable housing rules that require her “to look for a smaller house.”  Petitioner requests a determination that the students are homeless and entitled to attend respondent’s schools without payment of tuition. 

Respondent contends that petitioner has failed to meet her burden of proving that the students’ out-of-district address 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]). 

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 provides no details about the adequacy of the living conditions at the out-of-district residence.  Without any specific information about the adequacy of petitioner’s and the student’s living arrangements, I cannot find that the out-of-district residence is inadequate (Appeal of A.B., 63 Ed Dept Rep, Decision No. 18,324; Appeal of A.M., 57 id., Decision No. 17,146). 

Additionally, there is no indication that the out-of-district residence is temporary or transitional.  At the time petitioner commenced this appeal, she and the students had been residing at the out-of-district residence for nearly one year; she presents no evidence that they must vacate such 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 describes the circumstances under which she and the students allegedly became homeless thusly: “I half [sic] to look for a smaller house due to my family size went down so section 8 told me I half [sic] to look for a 3 bedroom now.”[2]  She further asserts that if she does “not find another home I will half [sic] to go in a shelter with the [students].”  Even if section 8 rules required petitioner to find housing other than the in-district address, petitioner has not proven that she was required to obtain housing outside the district.[3]  Moreover, the sole inquiry in this appeal is whether petitioner has proven that her current residence is inadequate and temporary, which she has not done (see generally Appeal of G.K., 60 Ed Dept Rep, Decision No. 17,908).

Thus, based upon the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular, and adequate night-time residence or that they 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.




[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] According to the United States Department of Housing and Urban Development, section 8 of the Housing Act of 1937, also known as the “housing choice voucher program,” is a federal program that assists low-income families, the elderly, and the disabled in securing safe and sanitary housing in the private market (U.S. Dep’t of Housing and Urban Development, “ choice voucher program section 8#hcv01; last accessed on December 24, 2023).


[3] In this regard, I note that petitioner states in her petition that she is “not yet” homeless.