Appeal of T.C., on behalf of her children, from action of the Board of Education of the Freeport Union Free School District regarding residency and homelessness.

Decision No. 18,619

(August 11, 2025)

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

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Freeport Union Free School District (“respondent”) that her two children (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).  The appeal must be dismissed.

The students have attended respondent’s district since the 2021-2022 school year.  Petitioner initially claimed to reside at a location within respondent’s district (the “first in-district address”).  However, following a residency investigation in 2023, respondent determined that the family had never resided therein.  Petitioner admitted as much during a phone call in December 2023.  Shortly after this call, petitioner re-enrolled the students, indicating that they resided at a different location within the district (the “second in-district address”).  In her registration paperwork, petitioner identified herself and the students as tenants and did not assert that they were homeless.

Respondent proceeded to surveil the second in-district address.  Based on the results thereof, respondent concluded that the students did not reside at the second in-district address.

By letter dated June 6, 2024, respondent informed petitioner that the district had reason to believe she did not reside at the second in-district address.  This letter invited petitioner to participate in a conference on June 13, 2024 to discuss the factual basis for its determination.  Petitioner did not respond or participate in the conference.  As such, the students were excluded from respondent’s district as of June 27, 2024.  Petitioner did not appeal this determination.

In September 2024, petitioner asserted that she and the students were homeless because the second in-district address was inadequate and temporary.  Respondent allowed the students to continue attending its schools at that time.

By letter dated January 9, 2025, respondent determined that the students were neither district residents nor homeless.  This appeal ensued.

Petitioner asserts that the students are homeless because she and her family are sharing housing with family members at the second in-district address due to loss of housing, economic hardship, or a similar reason.  For relief, she seeks a determination that the students are entitled to attend respondent’s schools and receive transportation.

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).

Initially, I must address the scope of my review.  Petitioner did not appeal respondent’s June 2024 determination that concluded that she did not reside at the second in-district address—or anywhere else within the district.  As such, that decision has become final and binding on petitioner (Appeal of K.L., 59 Ed Dept Rep, Decision No. 17,730; Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165; Appeal of Laventure-Louis and Louis, 56 id., Decision No. 17,027).  Consequently, petitioner is precluded from arguing that she is homeless at the second in-district address—and the appeal must be dismissed on that basis (see generally Appeal of A.W., 63 Ed Dept Rep, Decision No. 18,349; Appeal of M.D., 63 id., Decision No. 18,321; Appeal of a Student with a Disability, 56 id., Decision No. 16,938).

In any event, the circumstances petitioner describes do not constitute homelessness.[2]  Petitioner describes her residence as a “two-story, single family” home with four bedrooms.  She further states that seven people, including the two students, reside therein.  While petitioner indicates that the students are sleeping in the basement,[3] she does not explain how the home’s bedrooms are allocated.  Thus, petitioner has not proven that the students’ arrangement is compelled by the characteristics of the house or its number of inhabitants (Appeal of D.T., 58 Ed Dept Rep, Decision No. 17,558; Appeal of C.M., 57 id., Decision No. 17,131).  As such, petitioner has failed to prove that the out-of-district address is inadequate (Appeal of C.M., 57 Ed Dept, Decision No. 17,131; Appeal of K.G.B., 58 id., Decision No. 17,666; Appeal of D.E., 60 id., Decision No. 17,894).[4]  Similarly, petitioner does not allege that the students need to vacate their residence 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).

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

THE APPEAL IS DISMISSED.

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