Appeal of A.B., on behalf of her child, from action of the Board of Education of the Lawrence Union-Free School District regarding residency and homelessness.

Decision No. 18,607

(July 29, 2025)

Minerva & D’Agostino, P.C., attorneys for respondent, Christopher G. Kirby, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Lawrence Union-Free School District (“respondent”) that her daughter (“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 sustained.

Although the record in this appeal is sparse, it appears that petitioner and the student resided in Georgia prior to the events described herein.  Sometime in 2024, petitioner moved to New York State.  The student began attending respondent’s district in September 2024.

By letter dated February 14, 2025, respondent’s superintendent informed petitioner of her determination that the student was not homeless because she did “not reside at the address” she identified on a housing questionnaire (the “residence”).  The administrator indicated that the student would be excluded from respondent’s schools as of March 17, 2025.  This appeal ensued.

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

Respondent did not submit an answer in this appeal.  As such, the statements in the petition are deemed true (8 NYCRR 275.11; Appeal of Atkins, 35 Ed Dept Rep 375, Decision No. 13,576; Appeal of Rowe, et al., 31 id. 280, Decision No. 12,641).  However, respondent requests permission to submit two affirmations in lieu of an answer.  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). 

The affirmations, submitted 55 days after service of the petition, provide factual assertions that should have been submitted with respondent’s answer.[1]  Counsel for respondent indicates that its delayed response was attributable to a workplace injury involving the homeless liaison.  While I am sympathetic, respondent has not adequately explained when the injury occurred or how it caused such a substantial delay.  Consequently, I decline to accept these affirmations into the record (see Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897; Appeal of M.J.P., 58 id., Decision No. 17,662).

Turning to the merits, 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” (Education Law § 3209 [1] [a]).[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, 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 sufficiently proven that the student is homeless.  Petitioner asserts that she and the student reside at a location that is used as a daycare from Monday through Friday.  As such, she and the student may only arrive after 8:00 p.m. and must leave before 5:00 a.m.  Petitioner further indicates that she and the student “sleep on the floor in the living room” and that the residence lacks a working stove.  While petitioner has access to this location “until [she] find[s] permanent housing,” an inadequate living arrangement such as this does not become fixed, regular, and adequate merely due to its duration (see Appeal of L.R., 61 Ed Dept Rep, Decision No. 18,086; Appeal of T.R., 59 id., Decision No. 17,794; Appeal of R.M., 54 id., Decision No. 16,643).  Therefore, I find that petitioner has demonstrated that she and the student lack a fixed, regular, and adequate nighttime residence.

I acknowledge that petitioner’s living circumstances are not entirely clear.  For example, while she asserts that she and the student sleep on the living room floor, another portion of the petition indicates that the residence contains a bedroom and a bed.  Additionally, while petitioner indicates that the student does not live at the residence “on weekends,” she did not identify any other location to which she has access.  Respondent may seek to clarify these ambiguities through further investigation, such as a home visit (see Appeal of P.W., 62 Ed Dept Rep, Decision No. 18,291).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that that respondent permit the student to attend the Lawrence Union Free School District without payment of tuition and provide transportation services to the student for the duration of her homelessness, including those provisions regarding a child’s terminal year in a school building, where applicable.

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