Appeal of L.D.P., on behalf of her child, from action of the Board of Education of the Bellmore-Merrick Central High School District regarding residency and homelessness.

Decision No. 18,600

(July 21, 2025)

Ingerman Smith L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Bellmore-Merrick Central High 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.

Petitioner first enrolled the student in respondent’s district during the 2024-2025 school year, indicating that she and the student resided at a home within the district (the “in-district address”).  Petitioner’s driver’s license, which she submitted in connection with the student’s registration, reflected an address within the City of New York (the “out-of-district address”).

In November 2024, a letter sent to the in-district address was returned as undeliverable; it also bore the handwritten notation “no mail box.” 

In December 2024, the student indicated to school staff that he was often late because his home was far away from the school.  A district employee thereafter drove to the in-district address, observing that it was “effectively a construction site” that was “uninhabitable.”  Respondent’s assistant superintendent of curriculum, instruction and assessment contacted petitioner, who asserted that she was “living in the basement while the remainder of the house was being built.”

Respondent proceeded to conduct surveillance on nine mornings between 6:30 and 7:45 a.m. in January and February 2025.  On each day, no one was observed at the in-district address.  The student, however, was present in school at 7:30 a.m.

By letter dated March 3, 2025, respondent informed petitioner that it had reason to suspect she and the student did not reside within the district.  This letter invited petitioner to submit information and/or documentation that she, in fact, resided therein.  A few days later, petitioner contacted respondent and asserted that she was homeless at the out-of-district address.  Respondent maintained the student’s enrollment at that time.

By letter dated April 4, 2025, respondent determined that the student was not homeless.  This appeal ensued.

Petitioner claims that the student is homeless within the meaning of McKinney-Vento because she and the student are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.  Petitioner seeks a determination that the student is homeless.

Respondent asserts that petitioner has never resided within the district, which prevents it from being considered the students’ district of origin or location.  Respondent further contends that petitioner has failed to prove that the students lack a fixed, regular, or 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.”[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).

Petitioner has failed to meet her burden of proving that the student is homeless.  While petitioner describes the circumstances that allegedly caused her to leave the in-district address, she does not assert that the out-of-district address is inadequate (Appeal of V.M., 64 Ed Dept Rep, Decision No. 18,428; Appeal of S.S., 63 id., Decision No. 18,300; Appeal of S.C., 59 id., Decision No. 17,710).[2]  Additionally, petitioner does not assert that she and the student 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).  Therefore, petitioner has failed to demonstrate that the student is homeless, and the appeal must be dismissed.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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