Appeal of S.M., on behalf of her grandchildren, from action of the Board of Education of the South Huntington Union Free School District regarding residency and homelessness.

Decision No. 18,591

(July 16, 2025)

Ingerman Smith LLP, attorneys for respondent, Keith T. Olson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the South Huntington Union Free School District (“respondent”) that her grandchildren[1] (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), and therefore, not entitled to attend respondent’s schools or receive transportation.  The appeal must be dismissed.

The students attended respondent’s district as residents in the 2023-2024 school year.  On May 31, 2024, respondent learned that petitioner and the students moved to an address outside of respondent’s district (the “out-of-district address”).  Respondent permitted the students to continue attending its schools as homeless students.  

On June 4, 2024, respondent’s investigator conducted a home visit at the out-of-district address.  Respondent concluded that the out-of-district address was fixed, regular, and adequate.

By letter dated June 24, 2024, respondent informed petitioner of its determination that the students were not homeless.  This appeal ensued.

Petitioner claims the students are homeless because they share the housing of other persons due to loss of housing, economic hardship, or similar reason.  Petitioner seeks a determination that the students are homeless and, thus, entitled to attend respondent’s schools without payment of tuition and receive transportation.

Respondent argues that the petition fails to state a claim upon which relief may be granted and the students are not homeless.

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]). 

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 failed to establish that she and the students lack a fixed, regular, and adequate nighttime residence.  Petitioner does not allege that the out-of-district residence is temporary or inadequate; she merely asserts that she is sharing the housing of others due to loss of housing.  The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (e.g., Appeal of M.A.-C., 62 Ed Dept Rep, Decision No. 18,177; Appeal of N.L., 62 id., Decision No. 18.041; Appeal of A.M., 57 id., Decision No. 17,146).[3]

By contrast, respondent submitted a home visit report conducted by the investigator and an affidavit from its director of special education[4] in support of its determination.  At the out-of-district address, the investigator observed a living room, kitchen, bathroom, and three bedrooms.  He reported that the students shared a bedroom with bunkbeds, petitioner had her own bedroom, and a friend of petitioner occupied the third bedroom.  The report further indicated that petitioner chose to move to the out-of-district address due to arguments with her mother.  Petitioner did not submit a reply or otherwise respond to these assertions.  Therefore, she has not met her burden of proving that the out-of-district address is inadequate.

Petitioner has also failed to establish that the out-of-district address is temporary or transitional.  The record reflects that the students have resided at the out-of-district address with petitioner since approximately May 2023.  There is no indication 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).[5]

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

THE APPEAL IS DISMISSED.

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