Appeal of S.M., on behalf of her child, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency and homelessness.

Decision No. 18,621

(August 11, 2025)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas and Camille E. Curry, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“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. 

The student was first enrolled in respondent’s district for the 2023-2024 school year.  Based on concerns that she did not reside therein, respondent commenced a residency investigation in fall 2024.  Respondent surveilled an address located outside of the district (the “out-of-district address”) on seven days in October and November 2024.  The student was observed leaving the out-of-district address and reporting to school on all but one of these days.[1]  

By letter dated November 8, 2024, respondent’s director of pupil personnel services (“director”) advised petitioner that the student did not live within the district.  The letter offered petitioner the opportunity to submit evidence “relating to [her] actual domicile within the [d]istrict” or to schedule a meeting with the director prior to his exclusion on November 22, 2024.   

On November 15, 2024, the liaison received a phone call from petitioner, who indicated that she was being evicted from the out-of-district address.  When asked where she had resided for the past year, petitioner indicated that she and the student had generally been living with her son at the in-district address.[2]

On December 2, 2024, the liaison met with petitioner to discuss her residency.  During that meeting, petitioner indicated that, following her eviction from the out-of-district address, she had been “bouncing around from one house to another.”  According to the liaison, petitioner provided her with a notice dated May 2023 that gave her 90 days to vacate the out-of-district address.  The liaison subsequently contacted the landlord for the out-of-district address, who confirmed that he previously tried to evict petitioner in connection with a planned sale of the property.  However, the eviction did not occur as a “[j]udge would not agree to remove petitioner from the premises as her rent was paid through a State program and was paid up to date.”  The landlord further indicated that petitioner had continued to reside at the out-of-district address since 2023 and was current on her rent.  Respondent thus determined that petitioner and the student were neither district residents nor homeless.  This appeal ensued. 

Petitioner claims that she and the student are homeless as they share housing with others at two different apartments and the in-district address.  Petitioner requests a determination that the student is homeless.

Respondent argues that petitioner and student are not homeless as they live at the out-of-district address, which is fixed, adequate and regular. 

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.”[3]  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, petitioner has failed to demonstrate that respondent is the student’s school district of origin or location.  Respondent has submitted compelling evidence that petitioner has never physically resided within its district.  Petitioner did not submit a reply or otherwise respond to these contentions.  Therefore, the record supports a finding that petitioner has never resided within respondent’s district, which precludes petitioner from designating it as the student’s district of origin or location (Appeal of C.M., 57 Ed Dept Rep, Decision No. 17,200; Appeal of T.C., 56 id., Decision No. 17,116).

Even assuming that respondent could be so designated, petitioner has failed to prove that the student is homeless.  As evidence, petitioner provides the 90-day notice she previously provided to respondent.  Petitioner also submits a screenshot of a text message from a friend who resides in the district in which the friend indicates that she has allowed petitioner and the student to stay with her temporarily since September 2024; the friend further asserts that “they do not stay here every night [but] when they do need to stay they are welcome.”  Petitioner also submits letters from a second friend and petitioner’s daughter.  The second friend generally indicates that they have provided temporary housing to petitioner and the student.  Petitioner’s daughter, who allegedly resides at the in-district address, asserts that petitioner resides with her but spends “some nights” elsewhere.  Finally, petitioner submits two photographs of couches and one photograph of a front door. 

This evidence is unpersuasive when weighed against respondent’s evidence.  As noted above, petitioner’s landlord indicated that petitioner has never been evicted from the out-of-district address, continues to reside therein, and is current with her rent.  Moreover, respondent’s surveillance exclusively portrayed the student and petitioner at the out-of-district address.   Since 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) 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), she has failed to demonstrate that she and the student are homeless.  Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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