Appeal of M.M., on behalf of her child, from action of the Board of Education of the South Country Central School District regarding residency and homelessness.

 

Decision No. 18,610

(July 29, 2025)

Guercio & Guercio, LLP, attorneys for respondent, Barbara J. Emigholz, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the South Country Central 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 and the student previously resided within respondent’s district.  On February 12, 2025, respondent learned that petitioner’s family had been evicted from their in-district housing and were residing at a motel.  Respondent deemed the student homeless and allowed her to continue to attend its schools.

On February 27, 2025, petitioner informed respondent that she signed a one-year lease for an apartment located outside of the district’s boundaries (the “out-of-district address”).

By letter dated April 4, 2025, respondent informed petitioner of its determination that the student was no longer homeless because she resided at a fixed, regular, and adequate nighttime residence.  This letter indicated that the student would be excluded from respondent’s schools after the 2024-2025 school year.[1]  This appeal ensued.

Petitioner asserts that the student is homeless, characterizing the out-of-district address as “short-term” housing.  She indicates that, after the one-year lease ends in February 2026, she intends to return to respondent’s district.  For relief, she seeks a determination that the students are entitled to attend respondent’s schools and receive transportation.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the student is homeless within the meaning of McKinney-Vento or the Education Law.

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 meet her burden of proving that the student is homeless.  Initially, petitioner 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).  Moreover, “[p]etitioner[’s] one-year lease does not render the out-of-district residence temporary or transitional” (Appeal of G.D. and K.D., 62 Ed Dept Rep, Decision No. 18,180; see also Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897).  While petitioner express interest in returning to the district, this does not render the out-of-district address inadequate or temporary (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).  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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