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Clarifying What “Homeless” Means Under the McKinney-Vento Act

Since the 2010-2011 school year, public schools in the United States have identified over 1 million homeless children and youths. The McKinney-Vento Education for Homeless Children and Youths program was established to “ensure that each homeless child and youth has equal access to the same free, appropriate public education” as other children and youths. The Act imposes certain requirements on school districts, with the central purpose of serving the best interests of homeless children and youths. For instance, if a family becomes homeless between academic years or during an academic year, the school district may be required to continue the child’s education in the school of origin for the duration of homelessness.

Given this legal framework, the interpretation of certain terms in the Act has significant implications. As a prime example, the protections afforded under the Act extend to “homeless children and youths,” defined as “individuals who lack a fixed, regular, and adequate nighttime residence.” The definition provides examples of living arrangements that would qualify for homelessness, such as sharing the house of other persons due to loss of housing; and living in shelters, cars, public spaces, abandoned buildings, or similar settings.

In a case decided in August 2018, D.C. v. Wallingford-Swarthmore School District, the District Court for the Eastern District of Pennsylvania weighed in on this definition of “homeless.” In that case, a family’s house was condemned in 2010. Thereafter, the family—the father and his two minor children—lived at places such as the homes of relatives and friends, and vehicles. In 2012, the children began staying with their surrogate mother in a house outside the school district which was later determined to be owned jointly with the children’s father. The children stayed in that home three to four nights a week. Otherwise, they stayed with their father at either the father’s adult daughter’s home or an office space owned by the father. During this period, the children continued attending school in their original school district.

In 2016, the school district notified the father that it had determined that he was not a resident and that his children would no longer be permitted to be enrolled. The father responded that he was appealing this determination. The district sought to clarify whether he was contesting his non-residence or non-homelessness. After receiving no response, the district had its Homeless Student Liaison investigate. The Homeless Student Liaison found that the children were residing at the surrogate mother’s house outside the district and did not qualify as “homeless.” Thus, the district concluded that it was not obligated to maintain enrollment as the “school of origin.”

The court determined that, as of 2016, the house was actually owned by the father and the surrogate mother as joint tenants. The court reasoned that children living in homes owned or rented by their parents are not homeless under the Act, consistent with what courts in other jurisdictions have held. The children did not “lack a fixed, regular, and adequate nighttime residence” by staying at the house with the surrogate mother because “their father is a joint owner of the…house and therefore has the legal right to possess and use the home.” Thus, the children had a regular and adequate nighttime residence available to stay at full-time. Similarly, the court found that the children were not “sharing the housing of other persons” because the father was a joint owner of the home.

This case helps to clarify the contours of what constitutes “homelessness,” establishing that children living in homes owned or rented by their parents are not homeless under the Act. School districts should keep this in mind as they complete residence and/or homelessness investigations to ensure they proceed appropriately. As always, the School Law attorneys at Stock and Leader will be here to help navigate the process and address any challenges as they arise.

Note: This case has been appealed to the Third Circuit. The School Law attorneys at Stock and Leader will be monitoring the case for developments, so stay tuned for updates.

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