McKinney-Vento Compliance and Other Lessons from Litigation

McKinney-Vento Compliance and

Other Lessons from Litigation

Lisa Coleman, Domestic Violence/Education Staff Attorney, National Law

Center on Homelessness & Poverty

Maura McInerney, Senior Staff Attorney, Education Law Center, PA

Kate Frenzinger, Associate, DLA Piper LLP U.S

.

Road Map

• Background on Student Homelessness

• Overview of the McKinney-Vento Act

• Lessons Learned from Litigation

• Resources to Help YOU Stay on the Right Side of the Law

ELC-PA• www.elc-pa.org • NLCHP• www.nlchp.org • DLA Piper LLP (US) • www.dlapiper.com

Background on Student

Homelessness

• Over 1 million homeless students identified

• Mobility hurts health and education

• Barriers to enrollment and retention:

• Lack of documentation

• Lack of access to programs

• Lack of transportation

• Lack of school supplies, clothing, etc.

• Poor health, fatigue, hunger

• Prejudice and misunderstanding


Overview of McKinney-Vento

Homeless Assistance Act

• Broad definition of

“

homeless

”

• Dedicated personnel

• Focus on school stability

• Right to immediate enrollment

• Access to Title I, IDEA, other services

• Dispute resolution


Eligibility —Who is Covered?

• Children who lack a fixed, regular, and adequate nighttime residence —

• Sharing the housing of others due to loss of housing, economic hardship, or similar reason

• Living in motels, hotels, trailer parks, camping grounds due to lack of adequate alternative accommodations

• Living in emergency or transitional shelters

• Abandoned in hospitals

• Awaiting foster care placement


Local Homeless

Education Liaisons

• Every “ local education agency ” (school district, charter, etc.) MUST designate a homeless liaison

• Responsibilities include:

• Identify homeless students

• Share and ensure rights

• Coordinate with other agencies

• Resolve disputes


School Stability —

Key Provisions

• Homeless students have the right to:

• STAY at school of origin** OR

• IMMEDIATELY ENROLL in a new school

• Best interest—keep homeless students in their schools of origin, to the extent feasible, unless this is against the parents ’ or guardians ’ wishes

** School where child is currently enrolled or school child attended BEFORE becoming homeless.


Feasibility —

USDE Sample Criteria

• Continuity of instruction

• Age of the child or youth

• Safety of the child or youth

• Length of stay at the shelter

• Likely area where family will find permanent housing

• Student ’ s need for special instructional programs

• Impact of commute on education

• School placement of siblings

• Time remaining in the school year

• Child-centric, case-by-case determination


Resolution of Disputes —

Key Provisions

•Students must be immediately enrolled while dispute is being resolved

• Written explanation of the school ’ s decision, including the right to appeal

•Liaison must assist and carry out resolution process as expeditiously as possible


Common Subjects of

Litigation

• Refusal to enroll

• Failure to grant automatic enrollment while dispute is being resolved

• Failure to provide transportation

• Failure to recognize and accommodate unaccompanied youth

• Failure to accept appeals of enrollment decisions (

“

You

’

re not homeless, so you

’

re not entitled to appeal

”

)


Lampkin v. District of

Columbia

• Complaint alleged that DC Public Schools failed to:

• consider the best interests in making school placements;

• ensure transportation to schools;

• coordinate social services and public education; and

• ensure comparable services and school meals for students

• D.C. Circuit Court held that the McKinney-Vento created

“ enforceable rights ” ( i.e

. individual families could bring legal actions against state agents for violating the Act)

• DCPS ordered to identify children experiencing homelessness and refer them for all services required by the law, including transportation, within 72 hours of a family ’ s application for emergency shelter and provide tokens to all children who had to travel more than 1.5 miles to school.

• Awarded $185,000 in attorney fees and costs


Collier v. Board of Education of Prince George ’ s

County and Bullock v. Board of Education of

Montgomery County

Suburban school districts bordering on Washington, DC.

• Collier concerned transportation, identification, school selection, dispute resolution, and inter-agency matters.

•

Bullock addressed rights of students in transitional housing;

“ time limits” on homelessness & segregation.

•School districts agreed to settlements mandating broad reform measures from accommodating children awaiting foster placement, to publicizing the rights of homeless children, training school personnel to implement new forms and guidelines to identify and serve homeless children & provide timely transportation.

•Attorneys fees: ranged from $195,000 to $300,000.


National Law Center on

Homelessness & Poverty v. New

York State

• Case alleged systemic noncompliance by the state education agency, state social services agency, 15 local educational agencies, and county social services with state and federal laws relating to the education of homeless children and youth.

• School districts settled their portion of the case early in the proceedings; state and county social services moved to dismiss the case on ground that McKinney-Vento was not enforceable by parents; argument rejected by District Court.

• Ultimately, all parties settled and agreed to comply with applicable state and federal laws relating to homeless students.


Peterson v. Baltimore Cty

• Class action filed by four families in Baltimore County

• At the time of filing two children were identified as homeless and two children were not – all had been in and out of shelters and transitional housing

• Court certified the class

• Lawsuit emphasized

• Failure of school district to identify students

• Harm to students caused by interruption in schooling

• Sought DAMAGES as well as injunctive relief for failure to comply with McKinney Vento Act mandates

• Case settled – resulting in Consent Decree


Kaleuati v. Tonda

• Class action lawsuit against State of Hawaii in District Court challenging McKinney-Vento Act violations & seeking to ensure that homeless children have full, meaningful access to public education.

• Settlement agreement mandated: hiring, training & monitoring of district liaisons; improving identification practices and outreach to shelters and other providers; creating and distributing informational materials; developing a system for monitoring and recordkeeping; revising existing enrollment and release forms; reviewing and revising relevant administrative rules to remove barriers to attendance; consulting with parents and guardians; establishing a school bus route to accommodate residents of homeless shelters and beach parks; and improving dispute resolution procedures.

• DOE was responsible for attorneys ’ fees and costs: $185,000.


A.E. v. Carlynton & PDE

• Children slept in multiple school districts, rotating weekly so that children slept in 6 different school districts; Children denied enrollment in ALL districts on ground that they did not “ live ” in any..

• Case settled, resulting in significant PA guidance re highly mobile students:

• Children legally entitled to attend school where they have a “ substantial connection ”

(e.g., daily living activities, day shelter, stay on recurring basis.)


L.R. v. Steelton-Highspire

• Child resided with his grandmother and became homeless due to fire in Jan. 2009. Child was permitted to attend school until June but was refused enrollment the following school year.

• Court granted emergency preliminary motion:

• ordered school of origin to educate child

• immediate enrollment & pendency legally required under the Act;

• dispute resolution process must be followed.

• homelessness has no time limit


C.H. v. State of New York

Eastern District of New York

• Two children (one severely autistic) and single father were forced out of their home by economic circumstances; the family “ doubled-up ” with a family member residing in a different school district.

• The school district attempted to exclude the children, alleging that the family was not homeless.

• The family appealed to the NYSED; the Department of

Education denied the family ’ s request for a stay pending the appeal.

• On the eve of the children ’ s expulsion, the family sought a TRO and preliminary injunction from the EDNY.

• The Court granted a TRO – the matter is pending.


Project LEARN

• In 2011, DLA Piper and the Law Center partnered to launch Project LEARN (Lawyers Education Access

Resource Network).

• More than 50 Project LEARN attorneys and paralegals from 20 DLA Piper offices across the country trained to provide resources, information, and brief legal services to school personnel, homeless students and parents, and other advocates.

• Project LEARN volunteers also are accepting litigating cases where necessary to protect homeless students’ rights.

• Contact 202-638-2535 for assistance.


Resources

National Association for the Education of Homeless Children and Youth http://www.naehcy.org

National Center on Homeless Education http://www.serve.org/nche

National Law Center on Homelessness & Poverty http://www.nlchp.org

National Network for Youthhttp://www.nn4youth.org

Horizons for Homeless Children http://www.horizonsforhomelesschildren.org

Education Law Center http://www.elc-pa.org/index.html


Contact Information

Maura McInerney, Senior Staff Attorney,

Education Law Center

1315 Walnut Street

Philadelphia, PA 19107

215-238-6970 Ext. 316 mmcinerney@elc-pa.org

www.elc-pa.org/

Lisa Coleman, Staff Attorney

Eric Tars, Director of Human Rights &

Children ’ s Rights Programs,

National Law Center on Homelessness &

Poverty

1411 K Street, NW, Suite 1400

Washington, DC 20005

202.638.2535

etars@nlchp.org

www.nlchp.org

Kate Frenzinger, Senior Associate

DLA Piper LLP (US)

2525 E. Camelback Rd. Suite 1000

Phoenix, AZ 85016

480-606-5114

Kate.frenzinger@dlapiper.com

www.dlapiper.com/kate_frenzinger www.dlapiperprobono.com

McKinney-Vento Compliance and Other Lessons from Litigation

McKinney-Vento Compliance and

Other Lessons from Litigation

“

”

Common Subjects of

Litigation

“

’

’

”

Lampkin v. District of

Columbia

Kaleuati v. Tonda

A.E. v. Carlynton & PDE

L.R. v. Steelton-Highspire

Project LEARN

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McKinney-Vento Compliance and Other Lessons from Litigation