Appeal of C.A. and C.L., on behalf of their children, from action of the Board of Education of the Le Roy Central School District regarding residency and homelessness.

 

Decision No. 18,592

 

(July 21, 2025)

 

Bond, Schoeneck, & King, PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal a determination by the Board of Education of Le Roy Central School District (“respondent”) that their three children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, not entitled to attend the district’s schools.  The appeal must be dismissed. 

Petitioners and the students previously resided within respondent’s district.  They were forced to leave their home therein in August 2022 when their landlord elected not to renew their lease.  Petitioners and the students have resided at two hotels since that time; they began residing at the current hotel since sometime in 2023 (the “out-of-district address”).  Respondent permitted the students to attend its schools as homeless students during this time.

In spring 2024, respondent’s homeless liaison visited the out-of-district address and spoke with petitioner C.L.  She informed the homeless liaison that petitioner C.A. decided that “unless the family [could] secure housing in Le Roy, they [would] be stating at the hotel so that the children [could] remain in the Le Roy Schools.”  Petitioner C.L. indicated that “there was nothing that could be done” about petitioner C.A.’s decision.  The students offered similar accounts to district staff.

By letter dated September 5, 2024, respondent advised petitioners of its determination that the students were no longer homeless because they had voluntarily elected to reside at the hotel for over two years.  This appeal ensued.

Petitioners argue that the students remain homeless because they reside in a hotel.  For relief, petitioners request a finding that the students are homeless.

Respondent argues that petitioners have not demonstrated that the students are homeless or that its determination was arbitrary or capricious.

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]). 

Residing in a hotel or motel does not, in and of itself, constitute homelessness (see Appeal of Murphy, 61 Ed Dept Rep, Decision No. 18,018 [in residency appeal, petitioner proved that she and her child resided in a hotel within the boundaries of a school district]).  Rather, petitioners must demonstrate that they are “living in motels and hotels due to a lack of alternative adequate accommodations such that they lack a fixed, regular and adequate nighttime residence” (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,920).

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).

Petitioners have not met their burden of proving that their family is living in a hotel due to a lack of alternative adequate accommodations.  As indicated above, petitioner C.A. has indicated that the family is residing at the hotel “so that the children can remain in the Le Roy Schools.”  In March 2024, respondent’s homeless liaison provided petitioners with information on in-district housing that was “less expensive than the hotel [] and [would] offer a better opportunity for the kids.”  Additionally, respondent indicates that the family has access to a home owned by the students’ grandparent, where they resided in summer 2024.  Petitioners did not submit a reply or otherwise respond to these assertions.  Thus, petitioners have not met their burden of proving that the students are residing in a hotel due to a lack of alternative adequate accommodations (42 USC § 11434a [2] [b] [i]; Education Law § 3209 [1] [a] (1) [ii]).

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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