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Published in Print: November 17, 2004, as Homeless Children Retain Right to Sue, Judge Rules

Homeless Children Retain Right to Sue, Judge Rules

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Homeless children can still sue as individuals to enforce their educational rights under a 17-year-old law that is now part of the No Child Left Behind Act, a federal judge has ruled.

That decision came last month in a case filed by a group of homeless students and their families in Suffolk County, N.Y., against the state, various social-service agencies, and 10 Long Island school districts. They alleged that authorities had failed to locate homeless children, ensure that they were enrolled in school, and provide them with transportation.

The federal McKinney-Vento Act, first enacted in 1987 and reauthorized as part of the No Child Left Behind Act of 2001, provides federal money to states to help assure that homeless children have access to public education.

The defendants had argued that the homeless children and families had no right to sue, because previous court decisions had found that the NCLB law did not guarantee individuals specific rights.

But in his Oct. 23 opinion, U.S. District Judge Arthur D. Spatt of the Eastern District of New York, in Central Islip, ruled that even though the McKinney Act underwent a “general revision” when it was reauthorized and folded into the main federal K-12 education law, it still had the purpose of ensuring that homeless children and youths had access to public school programs.

In contrast with the No Child Left Behind Act, the judge wrote, “it is clear that Congress intended that the McKinney Act confer individually enforceable rights.”

The focus of the broader K-12 law, the opinion said, is on whether local education agencies maintain adequate yearly progress in student achievement. The McKinney Act, it said, focuses on how to ensure that each homeless child receives equal opportunities.

In addition, Judge Spatt wrote, the U.S. secretary of education can impose penalties for noncompliance under the NCLB law. The contrasting lack of an enforcement provision under the McKinney Act shows, he said, that it provides “mandatory entitlements” to homeless children by “clear and precise direction to state and local officials.”

Agreement Reached

The plaintiffs this month reached a settlement in the case, which was filed by the National Law Center on Homelessness and Poverty, based in Washington.

“Every step of the way, the system was failing the children—social services, transportation, school districts, and the state,” said Christopher J. Garvey, a lawyer who represented the plaintiffs. “Everyone was dropping the ball.”

Mr. Garvey said that concrete, measurable steps will be taken in order to ensure that homeless children stay in school, and that a federal judge will supervise to see that all parties involved are complying.

Vol. 24, Issue 12, Page 6

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