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Running Head: THE RIGHT TO SUCCESS

The Right to Success: A Legal Analysis of the Prospects Afforded to Homeless Students

Natalie Napolitano

Legal Studies Academy at First Colonial High School

THE RIGHT TO SUCCESS

Abstract

In the past decade, the number of homeless students has been significantly

increasing while the funding allotted to the programs that aid them has been radically

decreasing. Homeless students typically struggle with their academic life and even more

so if they are trying to balance any extra curricular activities as well. Because a stable

home is not available to these students, the hardships they face prevent them from

accessing the same opportunities for success that are available to housed students.

Therefore, the government has taken over the responsibility of ensuring that homeless

students are not discriminated against and are offered the same prospects that housed

students are. This paper will explore the pathways and legally provided aid that is and is

not available to homeless students. Along with aid, it will also break down the

McKinney-Vento Homeless Education Assistance Improvements Act, explore the

identification techniques used to discover homeless students, the budget assigned to

providing opportunities for the success of homeless students, and the legal consequences

of misidentification.

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The Right to Success: A Legal Analysis of the Opportunities Afforded to Homeless

Students

A homeless student is defined as “a youth who lacks a fixed, regular, and

adequate nighttime residence.” This definition also includes “those who are ‘doubled up,’

or living in someone else’s home, and those who are living in hotels along with those

living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or

train stations, or similar settings” (“Definition of Homeless,” 2014).

The Reality of Homelessness

During the 2012-2013 school year, the homeless student rate in the U.S. increased

by eight percent, going from 1,168,354 to 1,258,182. As these numbers rise, the testing

scores for homeless students are going down because the funds granted are being spread

very thin. Statistics show that the percentage of homeless students “testing proficient in

reading and math declined each school year between 2010-2011 and 2012-2013,

dropping from a 52 percent to a 47 percent in reading last year and a 51 percent to a 44

percent in math” (Covert, 2014).

Receiving Deserved Opportunities

Through the Title VII act, all students are promised the right to attend a school

where they are “educated with their classmates,” rather than “segregated into special

classes” (Tobin, 2011, p.43). However, it costs “South Hampton Roads’ five cities

collectively[…] an estimated $31 million each year due” on homeless students in the

area. These high costs present a dilemma when wanting to provide homeless students

with all of the opportunities that are afforded to students who have a stable home (“Brutal

cost of children who are homeless,” 2014).

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Luckily, the McKinney-Vento Homeless Education Assistance Improvements Act

provides funding to homeless students to give them the opportunities to succeed that all

high school students should receive (Laprade, 2010). Although this may seem like the

solution, this act tends to be vague in explaining methods to identifying homeless

students, and due to recent budget cuts, these fix-all funds are shrinking, leaving students

without their legally promised opportunities for success. Mrs. Donna Whiteside, the

social worker at First Colonial High School who provides aid to homeless students, said,

“The economy may be worse, but our business is still booming” (D. Whiteside, personal

communication, November 21st, 2014).

The Attempted Solution

The McKinney-Vento Homeless Education Assistance Improvements Act

This act was created to provide aid and opportunities to homeless students when

defined by 42 U.S. Code 11302 as:

“(1) an individual or family who lacks a fixed, regular, and adequate nighttime

residence;

(2) an individual or family with a primary nighttime residence that is a public or

private place not designed for or ordinarily used as a regular sleeping

accommodation for human beings, including a car, park, abandoned building, bus

or train station, airport, or camping ground;

(3) an individual or family living in a supervised publicly or privately operated

shelter designated to provide temporary living arrangements (including hotels and

motels paid for by Federal, State, or local government programs for low-income

individuals or by charitable organizations, congregate shelters, and transitional

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housing);

(4) an individual who resided in a shelter or place not meant for human habitation

and who is exiting an institution where he or she temporarily resided;

(5) an individual or family who—

(A) will imminently lose their housing, including housing they own, rent, or live

in without paying rent, are sharing with others, and rooms in hotels or motels not

paid for by Federal, State, or local government programs for low-income

individuals or by charitable organizations, as evidenced by—

(i) a court order resulting from an eviction action that notifies the individual or

family that they must leave within 14 days;

(ii) the individual or family having a primary nighttime residence that is a room in

a hotel or motel and where they lack the resources necessary to reside there for

more than 14 days;” (“General Definition of a Homeless Individual,” 2014).

The benefits that this act provides. Its benefits for these students include:

“immediate eligibility for free school meals; fees waived for school activities, including

registration fees and extracurricular activities; school supplies, uniforms, and other

necessary materials provided to the child; transportation to and from school of origin (the

school the child was attending before he became homeless); academic supports to ensure

success, including tutoring; and the removal of documentation barriers” (Crain, 2014).

The case law after the act. Although this act was supposed to fix all of the issues

presented by homeless students’ loss of rights, it didn’t. Cases still often arose dealing

with school systems that weren’t following the act and withholding funding from those

who needed it most.

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Salazar v. Edwards. A children’s class and a parent’s class were formed in 1992 to file a

“class action lawsuit in Illinois State Court against the Illinois State Board of Education,

the Illinois Coordinator for Homeless Children and Youth, the State Superintendent of

Education, the Chicago School Board, and the Chicago School Reform Board of

Trustees” (Malone 2006). This case was crucial in beginning the precedent for so many

other cases after it. The issues brought up in this case including the defendants

routinely den[ying] homeless children the opportunity to remain in their school of

origin, impos[ing] burdensome transfer requirements, den[ying] adequate and

timely transportation service, disregard[ing] the wishes of the parents, and

le[aving] children sitting in shelters for days and weeks without schooling.

A big part of the McKinney-Vento Act was the fact that homeless children are not to be

victims of discrimination. They are supposed to be able to have the same education with

their housed peers. The Illinois Board of Education denied them this right and “failed to

adopt policies to ensure that homeless children were not isolated or stigmatized.” At the

conclusion of the case the state of Illinois

eliminate[d] barriers to enrollment by creating new procedures for transfer,

maintenance of medical records, transportation, and eligibility for free or low cost

meals… [the state also] agreed to cease its ‘de facto’ policy of enrolling homeless

children in the school closest to the shelter they happen to be in.

This was a big achievement and blessing for the homeless students of Illinois; however, it

didn’t do much. It wasn’t until 1999, when the decision was already seven years old, that

the court finally enforced it. Although the rights were granted to every homeless student,

many were never made aware of those rights. It took the plaintiffs’ motion to enforce the

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laws to actually get the court to send homeless students issuances of their rights. This is a

clear example of the barriers that states can put up to get around the McKinney-Vento

Act (Malone 2006).

Allen and Shaw v. Hoover City Schools. In Alabama, two homeless students

were enrolled in a local high school and were never properly identified. Both boys said

that their football coach and other adults were aware of their homelessness, yet they were

never told their rights. Both young men claim that school employees also knew that they

were homeless and had been called out of class frequently to prove that they had been

living in a hotel through receipts and other documentation. The plaintiffs were each

required to complete transfer forms since the hotel they were living in was out of district,

but the McKinney Vento Act states that students can stay in whatever school they were

zoned for while in stable housing; no transfer forms are required. Also, transportation

was never provided for either plaintiff. They also were not given the resource of

academic support from the school’s homeless liaison, even when their grades started

slipping because they were forced to choose between academics and football while

struggling to find a place to sleep. Typically these kinds of cases are settled outside of

court; however, the plaintiffs in this case demanded a jury trial. On July 12th, 2014, the

plaintiffs agreed to mediation. No word has been released on the details of that mediation

(Crain, 2014).

Kaleuati v. Tonda. In Hawaii, many schools were not removing barriers for

homeless students to attend, a clear violation of the McKinney-Vento Act. They had been

receiving funds, yet they had made rules making it difficult for homeless students to pass

paperwork barriers and stay enrolled in their old school after becoming homeless. This

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forced them to not only have an unstable home environment, but also an unstable school

environment because they were forced to keep changing schools. Homeless students in

Hawaii were also being denied the right to free, safe transportation. At the conclusion of

the case, the Department of Education and Hawaii School Board agreed to provide

transportation to these students by:

Hiring additional homeless liaisons on each island to assist homeless families in

navigating the public school system; informing homeless children and families of

their rights under the McKinney-Vento Act (most notably, a child's right to

remain in her or his current school – and receive transportation to that school –

even if the family moves outside of the school district in search of shelter);

conducting yearly trainings of school personnel, and make annual site visits to

schools and homeless shelters statewide; modifying [its] enrollment forms and

computer systems to facilitate the enrollment process and improve attendance for

homeless children; and taking affirmative steps to avoid stigmatizing homeless

families (ACLU Hawaii, 2008).

Daniel Gluck, the Senior Staff Attorney for the ACLU said, “These changes are long

overdue.” Olive Kaleauti said her sons, also plaintiffs in the case, were unsure of how

much they had done to help homeless students in Hawaii. All they had said was “We just

helped all the homeless students go to school now.” Little do these boys know, they

played a huge role in changing the lives of homeless students and giving them their

legally promised rights. These boys gave homeless students in Hawaii their legally

provided rights and eliminated yet another loophole in the McKinney-Vento Act (ACLU

Hawaii, 2008).

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Bethel v. Mountain Brook Schools. A traveling “fire-and-brimstone” preacher

alleged that her children were not being provided with their rights when they were

prevented from enrolling in an Alabama school. She claimed that they were homeless

because they were a nomadic family and that her children should be allowed to stay in the

same school that they had been enrolled in before moving. She also wanted them to be

able to stay in this same school throughout all of their moves so that she wouldn’t have to

complete notifications of a change in housing every time they moved. This case never

made it to court due to technicalities. These technicalities were specified as a lack of

allegations regarding herself as the harmed plaintiff. The judge dismissed the case

because she was just making allegations for her children, not the harm caused to her

(Thornton, 2011).

Defining the budget. Most recently, national school administration requested a

$2.406 billion budget but was only granted a $2.105 billion budget, leading to many

programs having to be cut. Thankfully, all Title 1A funding, a program that provides

assistance to schools in low socio-economic neighborhoods, automatically goes to

homeless students. Even though Title 1A funding will aid in making up for the decreased

budget, if there are still “insufficient funds available to allot the minimum amount to each

state, the allotments to states will be reduced based on the proportionate share that each

state received in the preceding fiscal year” (“The McKinney-Vento Act At a Glance,”

2008). This minimum amount of funding spoken about previously is $150,000 for each

state. Also, extra funding is awarded to school corporations through grants based on a

competitive basis considering the fact that some areas experience higher populations of

low socio-economic families.

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Problems with the McKinney-Vento Act

Lacking Success

Although this act was put in place to ensure that the rights of all students were

granted to them, it has many loopholes that make it easy for states to scoot by without

providing aid to homeless students. As seen in the cases above, many schools will refrain

from even identifying the homeless students in the first place, leading to no need for

funds at all. This, alongside other problems, is the reason that the McKinney-Vento Act

needs to be revised.

The hindrance of inevitable budget cuts. Looking at our country’s financial

situation, it is safe to say that budget cuts will continue to come and hit hard for many

years to come. Budget cuts will leave these students without the opportunities that are

supposed to be provided to all students. They could affect the testing and academics of

these students drastically because the homeless student population is, unfortunately,

increasing rapidly which is bringing the consistent need for more funding. We can’t claim

to protect them and take care of them but not provide the resources that they need to

succeed in school and extra curricular activities.

More than budget cuts. Budget cuts are not the only problem homeless students

seeking an education face. There are many faculty members who fail to identify homeless

students in the first place. Some schools have more homeless students than others and are

spreading their funds very thin. Despite the McKinney-Vento Act, there are many schools

that still set up barriers to prevent homeless students from getting an education at their

school. As seen in Kaleauti v. Tonda, these barriers are illegal, yet very real. Hawaii had

been getting away with them for years before it was brought to the court’s attention that

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they violated the McKinney-Vento Act. A big reason that schools do things like this is

that they don’t want to pay for the transportation. Bus route changes can be very

expensive. States such as Hawaii are more prone to disobeying the act because of their

very high population of homeless people, leading to a higher population of homeless

children and students. They fear that the funding may not be enough to cover all of their

children (ACLU Hawaii, 2008).

Finding a Solution

The ideal solution, of course, would be more money. If somehow congress could

fit more funding for homeless student education into their budget then all would be a lot

better. Although this would be a wonderful solution, in reality budget cuts are taking

place, and there is no room for more funding. Another solution would be the sponsorship

of the Student Financial Aid office of the U.S. Department of Education. This office

works behind the Free Application for Federal Student Aid, or the FAFSA. By working

with this office grants could be set up specifically for homeless students and schools

could use those grants to offer more waived fees for opportunities such as multiple

Scholastic Aptitude Tests (SATs), Advanced Placement (AP) tests, college application

fees, and fees required to send transcripts and test scores to schools the students are

applying to. Senior year can be expensive, especially for students who are homeless.

Working with the Student Financial Aid office, schools would hopefully be able to take

away some of those costs (Roos, 2010).

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The Role of the Faculty and Staff

The Need to Identify

Homeless identifiers are often nurses, school social workers, or homeless liaisons

that are referred to take a closer look at students by teachers and other school faculty. A

school social worker deals with all children, homeless or not, and provides them with aid

and guidance through their hardships. Meanwhile, a homeless liaison is someone who

specializes in just the area of homelessness and the laws that surround it. Every school is

required to have a homeless liaison or social worker to go through the students’ rights

and paperwork, or lack thereof, with them. There are conferences held annually for these

identifiers to train them on the characteristics of homeless students and any new

opportunities that have been afforded to them as well as teach them how to train the

faculty and staff back at their schools.

These liaisons are also the people who are responsible for identifying the students

so that the can present them with their rights in the first place. However, homeless

liaisons are often not interacting with all of the students in the school on a daily basis.

Therefore, the responsibility of identification of homeless students falls to the other

faculty and staff members, more frequently the teachers. Because teachers are face to

face with students all day, they have a better opportunity to identify those who they

believe might be homeless and possibly keep a closer eye on them or notify the homeless

liaison (Tobin, 2011, p. 48, p.115).

Teaching the Teachers

Although there are trained liaisons in every state, teachers do not receive any

specific training pertaining to homeless student identification. It is, therefore, the liaisons’

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job to teach the teachers about how to identify these students and hand them to the

liaisons to work with. Most of the time, these lessons will be held on professional

development days or staff workdays. There have been many attempts at teaching the

teachers the key characteristics of a homeless student, but more often than not the

technique that works best is enhancing sensitization. Sensitization means making the

teachers more aware of they difficulties that homeless students face. The goal of

sensitization is to make teachers aware of the things that a homeless student might not be

able to do and grow their willingness to adapt assignments to fit the particular needs of

that certain student. For example, if the student is required to type an essay over the

weekend and does not have access to a computer, the teacher can offer to let the student

stay after school to use a computer or simply allow them to handwrite it. Typically, when

the teachers are sensitized to the hardships that homeless students face, they are more

willing to keep an eye out for them. By sensitizing the staff, they also learn the

characteristics of the students and are able to leave these lessons with a better

understanding on the effects that homelessness has on a student’s behavior, grades, and

overall attitude about school. Because they are taught on professional development days,

there is no need for them to go out of their way to attend a lesson. The homeless liaison at

each school, already an expert on the topic at hand, will normally teach the lesson so that

no extra money or work is needed to bring someone in to host the lesson (Tobin, 2011, p.

48, p.115).

A Lesson for All

While a lot of focus is placed on teachers, students are also a very important

factor in identifying their homeless peers. The only people who are with homeless

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students while in the educational workplace more than the teachers are their fellow

students. A homeless student may feel more comfortable confiding to a friend or peer

about their situation rather than an adult. Students need to be aware of what to do with

this kind of information if it ever comes to them. There have been many suggestions as to

how to make students aware of the situation that their homeless peers face. It’s often

recommended that an assembly of sorts is held, usually conducted by the school’s

homeless liaison or social worker to provide basic information on what characteristics to

look for as well as how to help that person once they have concluded that they are

homeless. Privacy is a big part of this student training. Homelessness is a very sensitive

topic, especially for the children who are experiencing it. Throughout training for

students, it needs to be emphasized that this is a very private matter and should be

handled that way. Other suggestions have been after school awareness activities or clubs

and “some researchers (e.g., Nunez) have gone so far as to publish children’s picture

books about homelessness for use in the elementary school classroom” (Tobin, 2011, p.

48).

Budgeting Identification

A big issue that has risen in the past few years is the budget for the training of

teachers and students. Because the budget that the homeless students receive is already so

limited, and growing smaller still, schools are reluctant to provide lessons to train them

because they don’t have the money. However, teacher training is often free if held on

professional development days, making it a very beneficial training session to hold.

Student lessons, on the other hand, are a harder endeavor to pursue. Students don’t have

professional development days or anything to that extent as teachers do, and

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administrators are often reluctant to cut into class time to host an assembly. The best way

to inform students how to be a support system for their peers is to hold an after school

activity or start a club dedicated to helping homeless students and knowing how to

support them rather than pick them out through identification traits. Despite the fact that

there is no budget to support student training, they are still a crucial part of identifying

homeless peers and need to have the knowledge and sensitization that faculty and staff

receive.

Closer To Home

At First Colonial High School, our social worker, Mrs. Donna Whiteside, is

shared with Cook Elementary. However, due to the high quantity of homeless students at

First Colonial, she spends most of her time here. Mrs. Whiteside plays a huge role in the

lives of homeless students in Virginia Beach. Because the First Colonial school zone is

down at the beach, all of the students who are living in hotels are zoned for First Colonial

giving the school the highest homeless student population, forty students, in all of

Virginia Beach.

Typically, Mrs. Whiteside will discover that a student is homeless when they

come to enroll at First Colonial. Instead of providing an address the family is allowed to

check a box labeled “homeless” and speak to Mrs. Whiteside later. Although many

homeless students are identified through this process, even more are not. In these cases,

Mrs. Whiteside has discovered their situation in a variety of ways. Sometimes she is

contacted directly from the shelter that the student is housed in. Other times students will

confide in teachers and peers who in turn will come to Mrs. Whiteside. The majority of

the time, students will be identified as homeless when the school mails something out and

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their address is not their own or the mail is returned back to the school. In this case Mrs.

Whiteside will go out and investigate and try to find and speak to the family so she can

give the homeless student the opportunities that they deserve.

Teacher and peers play such a big role in a homeless student’s life. Therefore, it is

important that they know who to come to when their student or peer confides in them that

they are homeless or near homeless.

Mrs. Whiteside tries her best to check in with her students weekly. She makes

sure that they are receiving food, clothing, school supplies, and any other things that they

need to succeed. She has found that although many students know their rights and have

been experiencing this since an early age, many are still unaware of the full extent of

their rights, which is why it is so important to identify and notify them. Teachers and

students need to be made aware of the characteristics of a homeless student and part of

Mrs. Whiteside’s job as the school social worker is to make them aware of that. She has

never personally held an assembly or training session for students and teachers, but she

works with students through First Colonial’s family connection program, which provides

food and toiletries to our homeless families, and will often discuss the situation of a

homeless student to their teachers if the student is ok with it. She disclosed the homeless

student’s hardships and provides a sort of sensitization to the teachers who have that

student so that they are able to accommodate their requirements to better fit the homeless

student’s needs (D. Whiteside, personal communication, November 21st, 2014).

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The “Timely Manner” Consequences

The Vagueness of the Law

The McKinney-Vento Act states that homeless students are supposed to be

identified within a timely manner but never truly specifies exactly what that timely

manner is. However, it is safe to assume that it means sometime before the student

graduates high school. As seen in Allen and Shaw v. Hoover City Schools there is a clear

legal consequence of not identifying a homeless student in a timely manner. The goal is

to find out that a student is homeless as soon as possible, but this can be very difficult if

the student does their best to keep it a secret. As long as homeless students are turned in

as soon as they are identified, there is no legal consequence. The issue in Allen and Shaw

v. Hoover City Schools was that there were adults and school personnel who were aware

of the plaintiffs’ homelessness yet refrained from informing them of their rights,

opportunities, and resources granted by the McKinney Vento Act. The plaintiffs had no

idea that they were missing out on funds and resources until after they graduated. These

withheld opportunities could’ve made their high school experience a lot easier, or as easy

as it could’ve been without a stable home (Crain, 2014). A timely manner is clearly not

after the student has already graduated. There is no clear timely manner constituted in the

McKinney Vento Act, something that desperately needs to be cleared up as soon as

possible.

The Legal Consequences

It is unknown exactly what the consequences are considering the fact that the

terms of the mediation in Allen and Shaw v. Hoover City Schools were not released. It is

fairly safe to assume that there was monetary compensation involved in the mediation of

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this case because the plaintiffs asked for money and desperately wanted a jury trial.

Because the school system didn’t want this getting too big, they brought about the

settlement to leave the case in mediation. Either way, there needs to be a clearer

definition of when homeless students are supposed to have been identified. Without this,

other schools may push off the identification process in order to save money.

A Time for Change

The Initial Problem

Although there are many little problems that arise in the pursuit of an equal

education for homeless students, there are two that stand out: the lack of funding and the

vagueness of the McKinney-Vento act. There must be funds allotted to homeless students

by congress. Children are promised a free public education from a very young age. We

cannot take that away from anyone if we want to see them succeed. If money isn’t

allotted to these students, then they will suffer and, statistically, end up a homeless adult

as well.

The McKinney-Vento Act has definitely helped in the advancement of the

awareness of homeless student educational needs but it still needs a lot of work. There is

nowhere near enough information and specifics within the act to give these students all

that they need. Some of the issues in this act include: failure to define a “timely manner,”

lack of specification of identification techniques, and many loopholes that provide

opportunities for school systems to set up barriers to education. This act desperately

needs to be revised because it is against the law for students to not receive their rightful

public education, despite whether or not they are homeless. There is an act trying to pass

congress to provide revisions to the McKinney-Vento Act to change a few specifications;

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however, after reading over the revisions, the act seemed even more vague if they were to

be added (Tracking the McKinney-Vento Act Revisions, 2014). The vagueness of this act

is the main problem in the first place. The act needs more specifications such as the time

frame that a faculty member has to identify a homeless student without legal

consequences. It also needs to provide identifying characteristics and a requirement for

faculty members to learn how to recognize those characteristics. Pending the fact that

legal consequences do arise from faculty not identifying homeless students in a timely

manner, there needs to be a definite statement of the punishment, or lack there of, that

will result from it.

The Solution

Society urgently needs to sit down and establish the ins and outs of giving an

education to homeless students. Just because they are homeless does not mean they don’t

deserve an education that is just as great as the one that housed students receive. There

needs to be a definite budget set in the McKinney-Vento Act or through another law so

that it can never be cut, or if it is cut there needs to be an alternative source of funding

available. Also, the McKinney-Vento Act needs to be revised as soon as possible. This

act has done some to help homeless students, but there are too many loopholes and it is

entirely too vague to continue being a source of support for the students.

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25

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interview].

Grading Rubric for “Almost Final” Draft

Criterion 4 -- Advanced

3 – Above Average

2 – Proficient 1 -- Emerging

Mechanics, Grammar, Spelling

Zero to very few errors

A few errors Several errors Many errors inhibit the reading of the text

Academic Voice

Academic language used throughout paper

Academic language used through most of paper

Academic language used for some of paper

Paper lacks academic language – informal throughout

Usage, Sentence Structure

Zero to very few errors

A few errors Several errors Many errors inhibit reading of text

Title, Abstract, Body, Reference

All present and correct

All present – needs to fix a few errors

Missing 1 item Missing 2+ items

Uniform LSA Scoring convention

16 = 100 12 = 88 8 = 76 4 = 6415 = 97 11 = 85 7 = 73

14 = 94 10 = 82 6 = 7013 = 91 9 = 79 5 = 67

Please do the following for final:Grade for this draft - 95

Fix all marked errors.

After they are fixed, just resend it to me.

26

THE RIGHT TO SUCCESS 27

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