Appeal of A.P., on behalf of her child, from action of the Board of Education of the Eastport-South Manor Central School District regarding residency and homelessness.

Decision No. 18,449

(July 16, 2024)

Volz & Vigliotta, LLP, attorneys for respondent, Michael G. Vigliotta and Michaela M. Weidtman, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastport-South Manor 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”).  The appeal must be dismissed.

In 2019, petitioner and the student began residing outside respondent’s district.  The student was permitted to remain enrolled in respondent’s schools as a homeless student. 

In August 2023, respondent’s homeless liaison met with petitioner to obtain updated information about the student’s residency and homeless status.  At this meeting, respondent learned that the student had resided at the same out-of-district for over a year (the “out-of-district address”).

By letter dated August 15, 2023, respondent determined that the student was not eligible to continue attending its schools.  Respondent reasoned that petitioner and the student had “fixed, adequate, and regular housing” at the out-of-district address, which had become “permanent.”  This appeal ensued.

Petitioner contends that she and the student are homeless because they are sharing the housing of other persons due to loss of housing and economic hardship.

Respondent argues that petitioner and the student are not homeless as they reside in a fixed, regular and adequate residence.

First, I must address a procedural matter.  Following the commencement of this appeal, petitioner submitted additional evidence, including lease agreements for the out-of-district address.  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Although petitioner did not comply with the procedural requirements of section 276.5, the additional submissions, particularly the most recent lease agreement, are relevant to the claims herein.  Moreover, respondent has had an opportunity to review, and respond to, this evidence.  Accordingly, I have accepted petitioner’s additional evidence and respondent’s reply thereto. 

Turning to the merits, 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” (Education Law § 3209 [1] [a]).[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 prove that the student is homeless under State or federal law. Petitioner indicates that there are six individuals living in a four-bedroom, one-and-one-half bathroom home and that she shares a bedroom with the student.  This is insufficient to show that the out-of-district address is inadequate (Appeals of C.M., 62 Ed Dept Rep, Decision No. 18,163; Appeal of J.S., 60 id., Decision No. 17,883; Appeal of A.S., 59 id., Decision No. 17,789).  The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of M.A.-C., 62 Ed Dept Rep, Decision No. 18,177; Appeal of S.R., 62 Ed Dept Rep, Decision No. 18,162).

Additionally, petitioner has not proven that the out-of-district residence is temporary or transitional.  Petitioner had resided at the out-of-district address for over a year at the time of respondent’s determination.  In her additional submission, petitioner asserts that she needs to vacate the out-of-district address in January 2024 because her rent will be increasing.  However, this is contradicted by the lease agreement, which indicates that the rent for the out-of-district address will remain the same from November 2023 to October 2024.[2]  Accordingly, I cannot find respondent's determination that the student is not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE