mckinney-vento compliance and other lessons from litigation lisa coleman, domestic...

McKinney-Vento Compliance and Other Lessons from Litigation

Lisa Coleman, Domestic Violence/Education Staff Attorney, National Law Lisa Coleman, Domestic Violence/Education Staff Attorney, National Law Center on Homelessness & PovertyCenter on Homelessness & Poverty

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

Kate Frenzinger, Associate, DLA Piper LLP Kate Frenzinger, Associate, DLA Piper LLP U.SU.S..

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

Road MapRoad Map

• Background on Student HomelessnessBackground on Student Homelessness

• Overview of the McKinney-Vento ActOverview of the McKinney-Vento Act

• Lessons Learned from LitigationLessons Learned from Litigation

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

Background on Student Background on Student HomelessnessHomelessness

• Over 1 million homeless students identifiedOver 1 million homeless students identified

• Mobility hurts health and educationMobility hurts health and education

• Barriers to enrollment and retention:Barriers to enrollment and retention:• Lack of documentationLack of documentation• Lack of access to programsLack of access to programs• Lack of transportationLack of transportation• Lack of school supplies, clothing, etc.Lack of school supplies, clothing, etc.• Poor health, fatigue, hungerPoor health, fatigue, hunger• Prejudice and misunderstandingPrejudice and misunderstanding


Overview of McKinney-VentoOverview of McKinney-VentoHomeless Assistance ActHomeless Assistance Act

• Broad definition of Broad definition of ““homelesshomeless”” • Dedicated personnelDedicated personnel• Focus on school stabilityFocus on school stability• Right to immediate enrollmentRight to immediate enrollment• Access to Title I, IDEA, other servicesAccess to Title I, IDEA, other services• Dispute resolutionDispute resolution


Eligibility—Who is Covered?Eligibility—Who is Covered?

• Children who Children who lack a fixed, regular, and lack a fixed, regular, and adequate nighttime residenceadequate nighttime residence——• Sharing the housing of others due to loss of Sharing the housing of others due to loss of

housing, economic hardship, or similar reasonhousing, economic hardship, or similar reason• Living in motels, hotels, trailer parks, camping Living in motels, hotels, trailer parks, camping

grounds due to lack of adequate alternative grounds due to lack of adequate alternative accommodationsaccommodations

• Living in emergency or transitional sheltersLiving in emergency or transitional shelters• Abandoned in hospitalsAbandoned in hospitals• Awaiting foster care placementAwaiting foster care placement


Local HomelessLocal HomelessEducation LiaisonsEducation Liaisons

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

• Responsibilities include:Responsibilities include:• Identify homeless studentsIdentify homeless students• Share and ensure rightsShare and ensure rights• Coordinate with other agenciesCoordinate with other agencies• Resolve disputesResolve disputes


School Stability—School Stability—Key ProvisionsKey Provisions

• Homeless students have the right to:Homeless students have the right to:

• STAYSTAY at school of origin** at school of origin** OR OR • IMMEDIATELY ENROLLIMMEDIATELY ENROLL in a new school in a new school

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

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


Feasibility—Feasibility—USDE Sample CriteriaUSDE Sample Criteria

• Continuity of instructionContinuity of instruction• Age of the child or youthAge of the child or youth• Safety of the child or youthSafety of the child or youth• Length of stay at the shelterLength of stay at the shelter• Likely area where family will find permanent Likely area where family will find permanent

housinghousing• StudentStudent’’s need for special instructional s need for special instructional

programsprograms• Impact of commute on educationImpact of commute on education• School placement of siblingsSchool placement of siblings• Time remaining in the school yearTime remaining in the school year• Child-centric, case-by-case determinationChild-centric, case-by-case determination


Resolution of Disputes—Resolution of Disputes—Key ProvisionsKey Provisions

•Students must be Students must be immediately enrolledimmediately enrolled while while dispute is being resolveddispute is being resolved

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

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


Common Subjects of Litigation

• Refusal to enroll Refusal to enroll

• Failure to grant automatic enrollment while Failure to grant automatic enrollment while dispute is being resolved dispute is being resolved

• Failure to provide transportationFailure to provide transportation

• Failure to recognize and accommodate Failure to recognize and accommodate unaccompanied youthunaccompanied youth

• Failure to accept appeals of enrollment Failure to accept appeals of enrollment decisions (decisions (““YouYou’’re not homeless, so youre not homeless, so you’’re re not entitled to appealnot entitled to appeal””))


Lampkin v. District of Columbia

• Complaint alleged that DC Public Schools failed to: Complaint alleged that DC Public Schools failed to: • consider the best interests in making school placements;consider the best interests in making school placements;• ensure transportation to schools; ensure transportation to schools; • coordinate social services and public education; and coordinate social services and public education; and • ensure comparable services and school meals for studentsensure comparable services and school meals for students

• D.C. Circuit Court held that the McKinney-Vento created D.C. Circuit Court held that the McKinney-Vento created ““enforceable rightsenforceable rights”” ((i.ei.e. individual families could bring legal . individual families could bring legal actions against state agents for violating the Act)actions against state agents for violating the Act)

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

• Awarded $185,000 in attorney fees and costsAwarded $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.Suburban school districts bordering on Washington, DC.

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

•BullockBullock addressed rights of students in transitional housing; addressed rights of students in transitional housing; ““time limits”time limits” on homelessness & segregation.on homelessness & segregation.

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

•Attorneys fees: ranged from $195,000 to $300,000. 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 Case alleged systemic noncompliance by the state education agency, state social services agency, 15 local educational agency, state social services agency, 15 local educational agencies, and county social services with state and federal agencies, and county social services with state and federal laws relating to the education of homeless children and youth. laws relating to the education of homeless children and youth.

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

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


Peterson v. Baltimore Cty

• Class action filed by four families in Baltimore CountyClass action filed by four families in Baltimore County• At the time of filing two children were identified as At the time of filing two children were identified as

homeless and two children were not – all had been in homeless and two children were not – all had been in and out of shelters and transitional housing and out of shelters and transitional housing

• Court certified the classCourt certified the class• Lawsuit emphasizedLawsuit emphasized

• Failure of school district to identify studentsFailure of school district to identify students• Harm to students caused by interruption in schooling Harm to students caused by interruption in schooling • Sought DAMAGES as well as injunctive relief for Sought DAMAGES as well as injunctive relief for

failure to comply with McKinney Vento Act mandates failure to comply with McKinney Vento Act mandates • Case settled – resulting in Consent DecreeCase settled – resulting in Consent Decree


Kaleuati v. Tonda

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

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

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


ResourcesResources

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 Youth-http://www.nn4youth.org

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

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


Contact InformationContact Information

Kate Frenzinger, Senior Associate

DLA Piper LLP (US)

2525 E. Camelback Rd. Suite 1000

Phoenix, AZ 85016

480-606-5114

[email protected]

www.dlapiper.com/kate_frenzinger

www.dlapiperprobono.com

Maura McInerney, Senior Staff Attorney, Education Law Center1315 Walnut StreetPhiladelphia, PA 19107215-238-6970 Ext. [email protected] www.elc-pa.org/

Lisa Coleman, Staff AttorneyEric Tars, Director of Human Rights & Children’s Rights Programs,National Law Center on Homelessness & Poverty1411 K Street, NW, Suite 1400Washington, DC [email protected] www.nlchp.org

mckinney-vento compliance and other lessons from litigation lisa coleman, domestic...

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