Decision No. 18,161
Appeal of N.L., on behalf of her child, from action of the Board of Education of the South Huntington Union Free School District regarding residency and transportation.
Decision No. 18,161
(July 25, 2022)
Ingerman Smith, LLP, attorneys for respondent, David F. Kwee, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the South Huntington Union Free School District 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”) and, therefore, not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.
Although unclear from the record, it appears that the student previously attended respondent’s schools as a district resident. On September 9, 2021, respondent received a report that the student was staying in a homeless shelter located outside of the district (the “out-of-district residence”). Respondent maintained the student’s enrollment and provided the transportation to and from this location. Respondent subsequently learned that the “homeless shelter” was, in fact, a single-family home.
By letter dated September 17, 2021, respondent informed petitioner that it had learned that the student did not reside within the district’s boundaries. Respondent acknowledged petitioner’s claim that she was “temporarily housed” and provided her with an opportunity to submit evidence in support thereof. Respondent provided the contact information for its homeless liaison as well as a list of evidence that petitioner could submit to demonstrate the student’s lack of a fixed, regular and adequate nighttime residence. Petitioner did not respond to this letter or otherwise submit any evidence.
On September 21, 2021, an investigator engaged by respondent conducted a home visit of the out-of-district residence. The investigator concluded that the out-of-district was fixed, regular and adequate.
In a letter dated October 20, 2021, respondent determined that the student did not meet the definition of a homeless student under McKinney-Vento and informed petitioner that the student would be excluded from school as of November 24, 2021. This appeal ensued.
Petitioner asserts that she and the student are homeless because they are temporarily residing at the out-of-district residence. Petitioner requests a determination that the student is homeless and, thus, entitled to attend respondent’s district without payment of tuition and receive transportation.
Respondent contends that petitioner has failed to meet her burden of proving that the student lacks a fixed, regular, and adequate nighttime residence.
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.” 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 ).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
On the record before me, petitioner failed to meet her burden of proving that the student is homeless under State or federal law. While petitioner alleges that the out-of-district residence is inadequate, she offers no evidence to support this claim (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864; Appeal of M.S. and C.C., 59 id., Decision No. 17,749). Her mere assertion that the student is sharing the housing of other persons does not, without more, establish that the residence is inadequate (Appeal of K.S., 60 Ed Dept Rep, Decision No. 17,875; Appeal of C.M., 58 id., Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146).
Petitioner has also failed to establish that the out-of-district residence is temporary or transitional. While petitioner characterizes her residence as “temporary,” the record reflects that, by her admission, she has resided at the out-of-district residence for seven or eight months. There is no evidence that petitioner needs to vacate the out-of-district residence or that there is a fixed time limit as to how long she may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).
Thus, based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular, and adequate nighttime residence.
THE APPEAL IS DISMISSED.
END OF FILE
 Respondent indicates that the student’s father resides within the district.
 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.
 The homeless liaison indicates that, during the home visit, petitioner provided an estimate of seven or eight months. Additionally, respondent’s assistant superintendent for student services indicates that petitioner has, on other occasions, “advised the DISTRICT that she has been at the [out-of-district residence] for at least 2 years.”
 In the petition, petitioner identifies a third residence as the student’s “last permanent address.” Respondent indicates that this address is outside of its district.