Appeal of N.H., on behalf of her child, from action of the Board of Education of the Uniondale Union Free School District regarding residency and homelessness.

Decision No. 18,585

(July 9, 2025)

Guercio & Guercio LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The student attended respondent’s district as a resident prior to the events described herein.  In 2018, petitioner lost her in-district housing and began residing with a family member in Roosevelt, New York (the “out-of-district address”).  Respondent enrolled the student as a homeless student thereafter. 

By letter dated March 13, 2025, respondent informed petitioner of its determination that the out-of-district address was fixed, regular, and adequate.  This appeal ensued.

Petitioner asserts that the student is homeless because she and petitioner are sharing the housing of another due to loss of housing, economic hardship, or a similar reason.  For relief, she seeks a determination that the student is entitled to attend respondent’s schools as a homeless student.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the student’s living circumstances are inadequate or temporary.

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, 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).

Petitioner has not met her burden of proving that the student is homeless.  With respect to the adequacy of the out-of-district address, petitioner indicates that she and the student reside in a single room therein, which she characterizes as “not ideal.”  She further asserts that she and the student are “not able to use” the kitchen at the residence.  While these allegations are concerning, she submits no other proof, such as photographs or statements from the owner of the residence, to substantiate her allegations (Appeal of L.B., 64 Ed Dept Rep, Decision No. 18,475; Appeal of R.D., 60 id., Decision No. 17,866; Appeal of A.S., 58 id., Decision No. 17,559).  As such, she has not met her burden of proving that the out-of-district address is inadequate.[2]

Additionally, there is no evidence that petitioner’s residence is temporary or transitional.  The record reflects that petitioner has resided at the out-of-district address since 2018.  In the petition, petitioner indicates that the owner/landlord has not specified how long she and the student may reside at the out-of-district address and that she is “unsure” of any date by which the student must vacate the residence.  As such, petitioner has not demonstrated that she or the student need to vacate the out-of-district address or that there is a fixed time limit as to how long they may remain (see Appeal of G.D. and K.D., 62 Ed Dept Rep, Decision No. 18,180; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  Thus, I cannot find that the out-of-district address is temporary. 

Therefore, petitioner has failed to demonstrate that the student is homeless, and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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