Appeal of K.A. and A.A., on behalf of their children, from action of the Board of Education of the Marlboro Central School District regarding residency and homelessness.

Decision No. 18,626

(August 11, 2025)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Marlboro Central School District (“respondent”) that their three children N.A., X.A., and A.C. (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Prior to the events giving rise to this appeal, petitioners and A.C. resided at a location within respondent’s district (the “in-district address”).  In July 2022, a fire destroyed the in-district address and the family moved in with petitioner K.A.’s parents (the “grandparents”) outside the district (the “out-of-district address”).  Respondent permitted A.C. to continue attending its schools as a homeless student.  In December 2022, students N.A. and X.A. moved from Florida to the out-of-district address after one of their parents, petitioner A.A., obtained legal custody.  Respondent subsequently enrolled N.A. and X.A. in its schools. 

By letter dated October 7, 2024, respondent explained that it had reason to believe that the students were no longer homeless because they had resided at the out-of-district address for over two years.  The record reflects that petitioners met with the superintendent on October 24, 2024 to discuss the basis for respondent’s determination.  The students were thereafter excluded, and this appeal ensued.

Petitioners argue that the students are homeless because they live doubled up in a two-bedroom home with the grandparents.  Petitioners assert that economic hardship has prevented them from securing a new apartment in respondent’s district.

Respondent argues that the students do not qualify as homeless students under state or federal 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).

Petitioners assert that they are homeless because they are sharing the housing of other persons due to loss of housing, economic hardship, or similar reason.  Petitioners explain that they and their five children live with the grandparents.[2]  However, merely living with other persons does not constitute homelessness (Appeals of L.B. and S.B., 65 Ed Dept Rep, Decision No. 18,594; Appeal of N.C., 64 id., Decision No. 18,445).  Petitioners explain that each of the students has their own bed in a two-bedroom apartment.  One student’s bed is in a walk-in closet, while the two other students share a bedroom.  Petitioners further indicate that the apartment has a working kitchen.  While the out-of-district address is not ideal, petitioners have failed to prove that the living conditions described above render it inadequate (Appeal of M.S. and C.C., 59 Ed Dept Rep, Decision No. 17,749; Appeal of S.P., 57 id., Decision No. 17,125; Appeal of K.B., 56 id., Decision No. 16,937).[3] 

Additionally, petitioners have not proven that the out-of-district address is temporary or transitional.  In their reply, petitioners asserted that they would need to vacate the out-of-district address by the end of June 2025.  However, in response to a request for additional information pursuant to 8 NYCRR 276.5, petitioners explained that, as of July 22, 2025, they were still living at the out-of-district address.  Since petitioners have now lived at the out-of-district address for over three years, it cannot be considered temporary or transitional (Appeal of N.B., 62 Ed Dept Rep, Decision No. 18,139; Appeal of K.W., 48 id., 151, Decision No. 15,912).

Finally, while petitioners allege that they are experiencing economic hardship and cannot afford to relocate to respondent’s district, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S., 52 id., Decision No. 16,388).

I empathize with petitioners’ loss of their home and ensuing economic hardship.  However, they have not proven that the students currently 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).THE APPEAL IS DISMISSED.

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