Appeal of S.B., on behalf of her children, from action of the Board of Education of the Jamesville-DeWitt Central School District regarding residency and homelessness.

Decision No. 18,609

(July 29, 2025)

Bond, Schoeneck & King PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Jamesville-DeWitt Central School District (“respondent”) that her three children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Although the record in this appeal is sparse, it appears that the students attended respondent’s schools as district residents prior to the events described herein.  At some point in or around 2024, respondent considered petitioner and her children as homeless based upon her representation that they were living in a motel in Syracuse, New York. 

In September 2024, mail sent by respondent to petitioner at the motel was returned as undeliverable.  Respondent contacted petitioner, who stated that she had signed a lease for a home located outside the district (the “out-of-district address”).  Based upon this, respondent’s homeless liaison determined that petitioner and her children were no longer homeless.  This appeal ensued.

Petitioner argues that the students should be considered homeless so they can remain enrolled in respondent’s district, which is a source of stability for them.

Respondent contends that petitioner has not met her burden of proving that she and the students lack 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.”[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, 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 students are homeless under State or federal law.  In the form petition completed by petitioner,[2] she checked the box “no” in response to the question, “are the student’s parent(s) or legal guardian(s) homeless?”  This, alone, justifies denial of the appeal (Appeals of M.G., 57 Ed Dept Rep, Decision No. 17,139).

In any event, the evidence in the record supports respondent’s determination.  Petitioner does not allege that the home is inadequate or overcrowded; the evidence in the record suggests that otherwise.  The out-of-district address appears adequate, as petitioner indicates that it has four bedrooms, two bathrooms, a kitchen with a working stove, and a refrigerator.  The home is not shared with anyone else, and petitioner asserts that each student has his or her own bed and bedroom.

Petitioner has also failed to establish that the out-of-district address is temporary or transitional.  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.  Indeed, petitioner indicates that she will reside therein “until [she] can find a new home” (see Appeal of K.T., 62 Ed Dept Rep, Decision No. 18,293; Appeal of D.S., 60 id., Decision No. 17,864; Appeal of S.R., 56 id., Decision No. 16,987).  Therefore, petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate nighttime residence. 

THE APPEAL IS DISMISSED.

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