Appeal of B.M., on behalf of her child, from action of the Board of Education of the Putnam Valley Central School District regarding residency and homelessness.

Decision No. 18,576

(July 2, 2025)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Lakshmi Singh Mergeche, Esq., of counsel           

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Putnam Valley 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.

Petitioner and the student previously resided within respondent’s district.  In or around September 2020, petitioner and the student left their in-district housing.  Respondent allowed the student to attend its school as a homeless student.  In October 2021, petitioner and the student moved to a new residence (the “out-of-district address”).

On August 26, 2024, respondent determined that the student was not homeless because the out-of-district address, where she continued to reside, was fixed, regular, and adequate.  This appeal ensued.   

Petitioner contends that the student is homeless because she rents the out-of-district address on a month-to-month basis.  In this respect, petitioner notes that another individual pays her rent, which she characterizes as “unaffordable.”  For relief, petitioner seeks a determination that the student is 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 student is 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]). 

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 student is homeless under state or federal law.  While petitioner alleges that she, the student, and the student’s father are homeless, she does not provide any details about the adequacy of the living conditions at the out-of-district address.  Without such information, I cannot find that the out-of-district address is inadequate (see Appeal of M.G., 63 Ed Dept Rep, Decision No. 18,340, cf. Appeal of L.R., 61 id., Decision No. 18,086).   

Petitioner has also failed to prove that the out-of-district address is temporary.  Petitioner submits a letter from her landlord dated September 25, 2024, in which he states that the petitioner and the student’s father rent the out-of-district address pursuant to “a verbal month to month agreement” with the student’s grandfather.  “It is well-established that [the] rental of [an] out-of-district address on a month-to-month basis does not establish that it is temporary or transitional” (Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897; see also Appeal of G.S. and M.S., 52 id., Decision No. 16,388).  While petitioner also indicates that the grandfather could “stop paying for [her] housing at any time,” petitioner and the student have resided at the out-of-district address since 2021.  Given this, petitioner’s eviction is “possible, but not probable” (Appeal of J.B., 63 Ed Dept Rep, Decision No. 18,323).  Therefore, petitioner has failed to prove that her living circumstances are temporary (see Appeal of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of G.S. and M.S., 52 id., Decision No. 16,388).

Finally, while petitioner has encountered difficulty in locating affordable housing in respondent’s district, economic hardship, in and of itself, is not enough to establish homelessness (see Appeal of S.R., 62 Ed Dept Rep, Decision No. 18,162; Appeals of A.J., 60 id., Decision No. 17,909; Appeal of T.J.G. and D.G., 54 id., Decision No. 16,652).

Thus, based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular, and adequate night-time residence or that the student is 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 student is not homeless to be arbitrary or capricious.

In light of this disposition, I need not consider the parties’ remaining contentions.  

THE APPEAL IS DISMISSED.

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