Appeal of H.W. and R.W., on behalf of their children, from action of the Board of Education of the North Syracuse Central School District regarding residency and homelessness.

Decision No. 18,604

(July 21, 2025)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the decision of the Board of Education of the North Syracuse Central School District (“respondent”) that their five 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 New York Education Law § 3209 (1) (a).  The appeal must be dismissed.

Prior to the events leading to this appeal, the students resided at a location within respondent’s district (the “in-district address”).  After petitioners’ landlord sold the in-district address in 2022, the family moved to a home owned by one of the students’ grandparents outside the district (the “out-of-district address”).  Respondent allowed the students to continue attending its schools as homeless students. 

By letter dated July 5, 2024, respondent determined that the students were no longer homeless because they continued to reside at the out-of-district address, which was fixed, regular, and adequate.  This appeal ensued.

Petitioner argues that the out-of-district address is inadequate due to overcrowding.  Petitioner further contends that the out-of-district address is temporary as the owner intends to put the home on the market at the end of the 2024-2025 school year. 

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

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 proven that the out-of-district address is inadequate due to overcrowding.  Petitioners contend that they and their five children are residing in a home with three bedrooms.[2]  According to photographs submitted by petitioners, one bedroom contains a bunk bed, the second a large bed, and the third two smaller beds.  The bedrooms and beds appear clean and well-maintained.  Petitioners indicate that two members of their family sleep in the first two bedrooms and three sleep in the third.[3]  While not ideal, the Commissioner has declined to deem students homeless under such circumstances (e.g., Appeal of D.S. and E.S., 60 Ed Dept Rep, Decision No. 17,892 [family not homeless where two children “share[d] a bedroom on the first floor,” a third child “share[d] a second bedroom with a fourth child,” and the parents slept in an “open area” that was “behind a curtain”]; Appeal of M.S. and C.C., 59 id., Decision No. 17,749 [family not homeless where “three children share[d] two beds and sle[pt] in the same room” and parents “sle[pt] on … recliners”]; Appeal of A.S., 58 id., Decision No. 17,559 [family not homeless where two parents and two children “occup[ied] one bedroom with two twin beds” and a third child “sle[pt] on the couch”]).  Therefore, petitioners they have not met their burden of proof.

Petitioners have also failed to establish that the out-of-district address is temporary or transitional.  The students have resided at the out-of-district address with petitioner since 2022.  Petitioners assert in the petition that the owner gave them “until the end of the school year to buy or find an adequate rental” and intend to sell the out-of-district address thereafter.  This is inconsistent with an assertion from respondent’s homeless liaison, who avers that petitioner H.W. informed her, in July 2024, that the owner of the out-of-district address was “allowing them to stay as long as they want.”  Petitioners did not submit a reply or otherwise respond to this allegation.  Therefore, petitioners have not proven that the students need to vacate the out-of-district address or that there is a fixed time as to how long they may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864, Appeal of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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