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Decision No. 18,629

Appeal of J.R., on behalf of her child, from action of the Board of Education of the Marcellus Central School District regarding residency and homelessness.

Decision No. 18,629

(August 12, 2025)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Rachel N. Roth, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Marcellus Central School District (“respondent”) that her child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education 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 2022, petitioner informed respondent that she had temporarily relocated to a new address due to domestic violence.  Respondent allowed the student to continue attending its schools as a homeless student.  While the record is unclear, it appears that the student began residing at her current residence outside of the district in 2022 or early 2023 (the “out-of-district address”).[1]

In spring 2024, respondent learned that petitioner was paying the owner of the out-of-district address to reside therein.  Respondent also learned that petitioner had registered her other school-age child in the district that serves the out-of-district address.  By letter dated May 26, 2024, respondent indicated that the student could complete the 2023-2024 school year but would be excluded thereafter.  Respondent’s superintendent attempted to contact petitioner to discuss her residency and homeless status throughout spring 2024 but was unable to reach her. 

Sometime in summer 2024, the student’s grandmother spoke with the high school principal.  According to respondent, the grandmother indicated that the student would attend school in East Falmouth, Massachusetts for the 2024-2025 school year.  However, on September 5, 2024, the student appeared at respondent’s high school for the first day of the 2024-2025 school year.  In a letter dated the same day, respondent indicated that the student was not entitled to attend its schools as a homeless student.  This appeal ensued.

Petitioner argues that the student is homeless due to overcrowding at the out-of-district address.  Petitioner further asserts that economic hardship has prevented her from securing a residence within respondent’s district.

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.”[2]  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 provides photographs of the out-of-district as well as a detailed description of her living circumstances.  She resides within one of the home’s bedrooms with her two youngest children who are under school age; petitioner indicates that she occasionally sleeps in the living room to accommodate the children.  The student shares the second bedroom with his 10-year-old sibling.  The photographs depict a clean and well-furnished space.

While the out-of-district address is cramped for a family of five, the fact that the student shares a bedroom with a sibling does not render it inadequate (Appeal of K.G.B., 58 Ed Dept Rep, Decision No. 17,666; Appeal of C.M., 57 id., Decision No. 17,131).  Furthermore, there is no proof demonstrating that the kitchen or bathroom facilities are inadequate (cf. Appeal of C.V., 59 Ed Dept Rep, Decision No. 17,700).[3]  Thus, while not ideal, petitioners have failed to prove that the living conditions at the out-of-district address 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).

Petitioner has also failed to prove that the out-of-district address is temporary.  Petitioner and her family have lived at the out-of-district address for at least two years.  While petitioner states that the homeowner is looking to sell the property, she submits no proof in support thereof.  As such, petitioner has not established that there is a fixed time limit as to how long petitioner or the student may remain at the out-of-district address (Appeal of M.G., 63 Ed Dept, Decision No. 18,340; Appeal of S.R., 62 Ed Dept, Decision No. 18,162).[4]

Finally, while petitioner alleges that she is 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).

Therefore, petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate nighttime residence.  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Respondent indicates that petitioner moved to this location in 2022 while petitioner suggests that she moved in January 2023.  This discrepancy is immaterial for purposes of this appeal, as respondent considered the student homeless until the events described herein.

 

[2] Education Law § 3209 excludes from the definition of “homeless child” a child who is in a foster care placement or receiving educational services under certain provisions of Education Law § 3202 or articles 81, 85, 87, or 88 of the Education Law – circumstances not presented in this appeal.

 

[3] While petitioner asserts that one refrigerator is broken, she indicates that the home has an “extra refrigerator” that was purchased “to accommodate [her] large family.”

 

[4] Petitioner also alleges that she is only permitted to reside at the out-of-district address on a month-to-month basis.  “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).