Rights of Students Rights of Students

Experiencing Experiencing

Homelessness in Dispute Homelessness in Dispute

ResolutionResolution

The Law Project of the Chicago Coalition for the HomelessThe Law Project of the Chicago Coalition for the Homeless

April 18, 2011April 18, 2011

Kane County Regional Office of EducationKane County Regional Office of Education

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Definition of "Homeless Children and Youth"

Those who lack a fixed, regular and adequate nighttime residence, including:

• sharing the housing of other persons due to hardship• living in motels, hotels, trailer parks, or camping grounds due to the lack

of alternative adequate accommodations• living in emergency or transitional shelters• abandoned in hospitals or awaiting foster care placement• in a primary nighttime residence not designed for or ordinarily used as a

regular sleeping accommodation for human beings• living in cars, parks, public spaces, abandoned buildings, substandard

housing, bus or train stations, or similar settings• migratory children who live in any of the circumstances described

above. 

• McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11434a(2) (A) and (B)

"Unaccompanied youth" includes a youth not in the physical custody of a parent or a guardian. 42 U.S.C. 11434a(6)

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Definition of Homelessness

● Very broad to facilitate educational stability.

● Look at where the child actually lives or sleeps- this can be a number of places.

● Affirmative duty of schools to sensitively identify these situations. 42 U.S.C. 11432(g)(6)(A)(i)

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Choice of Schools

A homeless child must be allowed to immediately enroll in (at least) one of the following three schools:

1) the school last attended;

2) the school attended when the child was last permanently housed; or

3) the school that non-homeless children who live in the same attendance area in which the homeless child or youth lives are eligible to attend.

Illinois Education for Homeless Children Act, Section 105 ILCS 45/1-10, 1-20 and the federal McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11432(g)(3)(A) and (C).

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School Choice and Enrollment

● Immediate Enrollment means:● “attending classes and participating fully in school activities.” 42 U.S.C. 11434a(1)● NOW! ● Even without records normally needed for enrollment 42 U.S.C. 11432(g)(3)(C)(i)

● Welcoming attitude – don’t “stigmatize” or segregate 42 U.S.C. 11432(g)(1)(J)(i) and 42 U.S.C. 11432(e)(3)

● Immediate enrollment in free breakfast and lunch – categorical eligibility

● Provide fee waivers, supplies, uniforms, community resources and information

● Unaccompanied youth DO NOT need an adult to enroll 42 U.S.C. 11432(g)(3)(B)(iii)

● The enrolling school must immediately contact the last school to obtain academic and other records 42 U.S.C. 11432(g)(3)(C)(ii)

● If immunizations are required, the school must give the student a referral 42 U.S.C. 11432(g)(3)(C)(iii)

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Notice of Educational Rights to Youth, Families and Community

• Posters & brochures to be placed at: libraries, pantries, stores, churches, shelters, public aid offices, bus station, health clinics, school lobby, office 42 U.S.C. 11432(g)(6)(A)(v)

• Notice of right to appeal: list of free and low cost legal help and advocacy 42 U.S.C. 11432(g)(3)(B)(ii) and (iii), 105 ILCS 45/1-25(c)

• Free and low cost materials available through National Center for Homeless Education www.serve.org/nche, Chicago Coalition for the Homeless www.chicagohomeless.org, and Opening Doors www.homelessed.net

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Transportation Services

• Available to homeless students attending their school of origin 42 U.S.C. 11432(g)(1)(J)(iii)

• Extends to and from school and includes transportation for school-related activities continuously through the end of the academic year in which permanently housed

• Districts must share the costs

• In Chicago, fare cards for CTA provided for students (and parents if the student is in the 6th grade or under). School bus provided for younger students whose parents unable to transport on CTA.

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Enrollment, Attendance & Success

Broad mandate for district: to revise any policies which act as a barrier to these 42 U.S.C. 11431(2) and 11432(g)(1)(I)

Note that the requirement pertains not just to enrollment policies but also ATTENDANCE and SUCCESS

Requires examination of:• Formal and informal policies• Standard practices including forms, schedules

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Liaisons for the Education of Homeless Students

• Every school district must have a liaison with responsibility to ensure McKinney-Vento implementation.

• Facilitate transportations arrangements

• Be aware of resources for homeless and indigent children and youth in the area, region, and state.

• Ensure outreach: homeless children and youth NOT in school are found and enrolled.

• Ensure students receive all services- free lunch, fee waivers, Head Start, Even Start, etc.

• Assist youth and families with the resolution of disputes and ensures that the district follows process.

• Disseminate public notice of educational rights.

• Act as an ADVOCATE for homeless students

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Enrollment Disputes

• When “dispute arises” the district must advise fully of rights, refer to ombudsperson and free or low cost legal advocate 42 U.S.C. 11432(g)(3)(E) and 105 ILCS 45/1-25(a) and (c)

• Regional Superintendent of Schools appoints ombudsperson 105 ILCS 45/1-25(a)

• School MUST immediately enroll and transport to the parent or youth’s choice of schools pending full resolution 105 ILCS 45/1-25(a)

• Specific written statement as to why school disagrees with youth or family 105 ILCS 45/1-25(a)

• Convene meeting in 5 days, if possible 105 ILCS 45/1-25(a)

• “Fair and impartial” hearing 105 ILCS 45/1-25(a)

• Residency hearing inappropriate

• State Board of Education Policy sets out process, rights

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Residency Interplays with Homelessness

Residency provisions of the Illinois School Code are “subject to” the Illinois Education for Homeless Children Act 105 ILCS 5/10-20.12b(g)

Sometimes children/youth can be entitled to attend the district BOTH as a homeless student AND as a resident.

Residency materials (forms, websites) should acknowledge the rights of homeless students.

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More on Residency …

Any Illinois student –homeless or not-- has the right to finish the school year in the same school, even if that child moves out of the district.

105 ILCS 5/10-20.12a (allows tuition-free attendance)

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Dispute Resolution Law and Policy

•McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11432(g)(3)(E)

•Illinois Education for Homeless Children Act, 105 ILCS 45/1-25

•Policy of the Illinois State Board of Education on the Education of Homeless Children and Youth (available at www.homelessed.net and www.isbe.net)

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State and Federal Guidance

Illinois State Board of Education Registration Guidance for the 2010-2011 School Year, Homeless Pupils (available at www.isbe.net/homeless)

• When dealing with residency issues, schools need to consider homelessness

• Involve homeless liaison before residency hearing is held or child is disenrolled

• Must not engage in residency hearings if dispute about homelessness; must follow dispute resolution procedures

United States Department of Education Non-Regulatory Guidance, July 2004 (available at www.homelessed.net)

• Section G-9 provides guidance regarding disputes

• Dispute process should be as informal and accessible as possible

• Should allow for impartial and complete review

• Parents/guardians/youth may submit written/oral documentation to support their position

 

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Who plays a role in ensuring “full and fair” dispute process?

•School District

•Local Education Agency Liaison

•Regional Superintendant of Schools/Regional Office of Education

•Lead Liaison

•Ombudsperson

•State Coordinator

•Illinois State Board of Education

•Family’s legal representative

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Role of School District and Liaison•As soon as disagreement arises, liaison should become involved.

•Arrange for immediate enrollment, transportation and other services until final resolution

•Discuss issue with family and explore informal resolution—at any stage of process

•Provide letter to family (copy to Regional Supt. And State Coordinator):

• Specifically explaining District’s position

• Referring family to free or low-cost legal help, and;

• Outlining dispute resolution process

•Refer family to Ombudsperson appointed by the ROE.

•Communicate and work with family’s legal representative, providing school records and other information

•Liaison should assist unaccompanied youth and ensure proper resolution of disputes.

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Circuit CourtCircuit Courtll

State Superintendent (ISBE)State Superintendent (ISBE)ll

State Coordinator for the Education of State Coordinator for the Education of Homeless Children Homeless Children

& Youth& Youthll

Ombudsperson (hearing officer)Ombudsperson (hearing officer)ll

Lead LiaisonLead Liaisonll

School District ----- School District LiaisonSchool District ----- School District Liaison17

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Role of Regional Superintendent

•Receive notice of dispute

•Appoint an Ombudsperson who is:

• Fair and impartial

• Familiar with the rights and needs of homeless children

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Role of Ombudsperson

•Work with all parties to schedule a meeting to promptly resolve dispute (5 days if possible).

•Notify all parties of time, date, place.

•Provide resource information in advance of meeting.

•Enable “full and fair presentation.”

•At meeting, allow complete presentation of facts by all parties.

•Allow family to have legal representative.

•Issue written decision and notify parents of right to review.

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Role of Area Lead Liaison

•7 Area Lead Liaisons in State of Illinois (and liaisons by County for Area 1) www.homelessed.net

•Provides assistance to Regional Superintendents and School Districts in area

•Ensures that disputes are properly handled

•Training – school districts, regional office staff, Ombudspersons

•Assists in identifying Ombudsperson

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Role of a State Coordinator

•State Coordinator reviews Ombudsperson’s decision for compliance with applicable law upon request from party.

•Party requesting review must include documentation related to dispute resolution proceeding.

•State Coordinator may request additional information from either party.

•State Coordinator makes recommendation to the State Superintendent regarding Ombudsperson’s decision and appropriate placement of the student within 10 days.

•Engages in follow-up with the District after State Superintendent’s determination.

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Role of State Superintendent

•Within 10 days of State Coordinator’s recommendation, the State Superintendent or designee will issue a final determination.

•State Superintendent may order district to take action to come into compliance with applicable law.

•If district does not comply with order, State Superintendent shall place the District’s recognition status on probation.

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Common Types of Dispute

•Enrollment

•Definition of Homeless

•Length of Homelessness

•Transportation

•Treatment of student

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What does the actual dispute hearing look like?

• Informal process – Rules of Evidence do not apply

• Ombudsperson acts as hearing officer-should be trained and fair and impartial

• Ombudspersons are generally not attorneys or judges

• Each Ombudsperson has own procedures – cross examination not always allowed

• School Districts are usually represented by counsel

• Witnesses/Exhibits

• Length of hearing varies – ranging from 2 to 6 hours

• Not necessarily recorded

 

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• District must provide letter to parent/guardian or youth explaining, “with a degree of specificity,” district’s position in the dispute. ISBE Policy, Homeless Student Dispute Procedures; 105 ILCS 45/1-25; 42 U.S.C. § 11432(g)(3)(E)(ii).

• Follow up may be required to be sure specific written rationale and facts are provided.

• Timeframe in issue is important – current or previous years? Challenging whether ever admitted lawfully to that school?

• District may be trying to establish right to collect non-resident tuition for current or previous years

• Don’t permit issues to be raised if not identified in dispute letter

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Get Clear on Issues in Dispute

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Obtaining Information

Crucial to get all information

Two key tools:

(1) Student Records Act (2) FOIA

Quickly, request of District by detailed letter

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Information (cont)

Request complete “student record” which includes “any writing or other recorded information concerning a student and by which a student can be identified” 105 ILCS 10/2(d)

--must produce in “reasonable time and in no case later than 15 school days after [request]

Request policies, forms, directives, data on McKinney-Vento practice in the district

--5 working days to produce 5 ILCS 140/3(d)

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Sample Language

Also, to enable a full and fair resolution of this matter and in accordance with the Illinois School Student Records Act, please promptly provide copies of the complete student records of the O. children including all forms, letters or communications of any kind related to their registration, enrollment, transportation, and attendance; copies of any related assessments or investigations, investigation notes, and records of communication with third parties, whether performed by the District or others; and all documents pertaining to the residency hearing involving the O. family earlier this year. An authorization for release of information is attached. 

Additionally, pursuant to the Illinois Freedom of Information Act, please provide copies of all policies, instructions, materials, forms, notices, posters, memorandums and rules or instructions relating to registration, enrollment, transportation or attendance of children in your District, including children who are homeless. Data provided to the Illinois State Board of Education and the federal Department of Education regarding the numbers of homeless students in attendance at District 129 is also sought. Finally, we understand that District 129 receives funding to serve homeless students. A copy of the grant application and grant agreement is also requested.

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Preparing for the Dispute

Districts drive to hold hearing rapidly (5 days) but may resist giving information

Set up ombudsperson expectations on time: no “full and fair” hearing possible until info obtained; ombudsperson’s duty to help secure the needed information

Don’t be unreasonable

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Surprisingly intrusive: hire detectives, videotapes, surveillance, enter property, utility and tax records, computer searches, talk to neighbors, home searches, student “confessions”

Surprisingly inept: read reports, note omissions, reliance on unsupportable data, failure to check facts, opinion v. fact

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District Investigations

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Can question their background, training, understanding of “homeless”

Actions may:

Violate ISSRA

Be inconsistent with ISBE Opinion

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Investigators often untrained

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Thorough Client Interview

Facts can be very complicated and hard to check out

Need a clear timeline of events

How homelessness came about

All interactions with school, names, papers

Supporting witnesses

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Witnesses and Declarations

Declarations are sound

Avoids witness having to appear

Draft based on personal knowledge

Obtain on critical facts

Provide ahead of time: might settle

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Memo & Attachments

Create a letter memorandum

Address to Ombudsperson, copy opponent

Set forth clear, simple analysis with facts

Attach witness declarations, copies of documents, Out of Reach Report, laws

Serve just prior to hearing

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Point Out District Non-Compliance

Can also attach documents which show:

District didn’t properly identify family as homeless

Failed to offer assistance

Ignored McKinney-Vento, Policy or Guidance

Misstates law

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Evaluate Case

Know when to fold: case with no merit?

Even if client not homeless, can negotiate helpful resolution: protect client against further district action

Often seems districts want kids out!

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Prepare Client

Provide emotional support: often families very traumatized, then targeted by district

Work with client to walk through story calmly but with details

Draw out sympathetic factors, strength of parents, student

Keep it as simple as possible

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Decision/Appeal

After decision issued, can appeal to ISBE

-- 5 days

--Respond if you are defending

--Review will not re-weigh facts, looks for

compliance with applicable law

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Court Action

•If no relief granted

•The Illinois Education for Homeless Children Act provides a civil right of action to seek appropriate relief for disputes under the Act. 105 ILCS 45/1-25(b).

•If rights under the Act are violated, recovery of attorneys’ fees and costs is available.

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How Long Can a Student be Homeless?

•“There is no specific time limit on how long a child or youth can be considered homeless.” ISBE Registration Guide

•Nothing in Illinois or federal law limits time child may be considered homeless.

•Process in Illinois Education for Homeless Children Act in cases where a child is doubled-up at same location for more than 18 months.

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18-Month Process

•Not required, but school district may review living situation in cases where a child is doubled-up in the same residence for more than 18 months. 105 ILCS 45/1-25.

• Applies only when child is sharing the housing of others and continues to share that housing for more than 18 months.

• Doesn’t apply to living in shelter or in more than one doubled-up situation.

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18-Month Process (continued)

•After 18 months and annually thereafter, school district may conduct review as to whether hardship still exists.

•May request information from parent or guardian to reasonably establish hardship, including affidavits or declarations.

•If hardship still exists, child is still considered homeless.

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18-Month Process (continued)

•If District determines that family no longer suffers hardship,

• Notify the family in writing

• Begin dispute resolution process

• Any change in enrollment shall be effective solely at the end of the school year

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Transportation—Standard

Law does not describe type of transportation

Districts try to provide it inexpensively

ISBE Policy says “[district] to ensure that appropriate transportation is provided”

Coordinator interprets this as “reasonable”

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Questions?

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Serving Homeless Preschoolers

Responsibility of the district and the McKinney-Vento Liaisons to:

• Provide outreach in the community to homeless families with preschool age children

• Identify and immediately enroll homeless preschool-age children without records of prescreening

• Ensure that homeless children have equal access to ISBE-funded preschools

• Homeless children are a priority

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Residency “NOs”

NO requirement for a court order of guardianship

NO requirement about a set number of days, weeks or months a child must live in the district

NO 24-7 requirement.

105 ILCS 5/10-20.12b(a)(2)

23 Il Admin. Code 1.240

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More on Residency…

A school district CANNOT require one particular form of proof of residency 23 III Admin. Code 1.240(b)

• Example: School districts should not require a driver’s license as “must have” proof

• This is especially important for undocumented students

No student can validly enroll in school if he/she lives within a district solely for the purpose of accessing the schools of the district. 105 ILCS 5/10-20.12b(a)

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Legal Custody

Residence of a person who has legal custody of a pupil is deemed to be residence of the pupil

Illinois school code defines “legal custody” broadly

Includes parents with whom pupil resides; court-ordered; short-term guardianship; “adult caretaker relative”

Also includes custody exercised by an adult who has assumed legal responsibility for the pupil and provides the pupil with a regular, fixed, nighttime abode (ISBE Affidavit)

105 ILCS 5/10-20.12b

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Waiver of School Fees

School fees can be a significant expense that unaccompanied youth cannot afford.

Illinois School Code requires schools to waive school fees for students who cannot afford them “including, but not limited to students eligible for free lunch” 105 ILCS 5/10-20.13(b)

23 Ill. Adm. Code 1.245

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Right to Reenroll in School

•Entitled to reenroll in school anytime before turning 21 years old.

•Can enroll in traditional or alternative schools

•A youth 19 years of age or older CANNOT be denied reenrollment because of age or lack of credits UNLESS the district first provides due process (i.e. a hearing). 105 ILCS 5/26-2(b)

•If denied reenrollment, must give counseling and information on alternative education programs. 105 ILCS 5/26-2(b).

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Credit Recovery

•Part of “Enrollment, Attendance and Success”

•Options (varies with school district)

• Online Courses

• Ex: Illinois Virtual High School Online

• Evening or Saturday Courses

• Offered at many CPS High Schools

• Correspondence Courses

• Ex: American School, Indiana University

• Summer School

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Pregnant and Parenting Students

NOT a reason to ban students from attending school or participating in any type of program or activity.

•Treated as a “temporary disability”

•Must offer home instruction, correspondence courses or other alternatives for up to three months following the birth or miscarriage

**Also Protected from Discrimination**

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Equal Access to School

Discrimination Schools cannot exclude or segregate …or discriminate against any pupil on the

basis of color, race, nationality, religion, sex, sexual orientation, ancestry, age, marital status, or physical or mental handicap or status of being homeless. 23 IL Admin. Code 1.240(b)

● This includes Transgender youth

Immigration StatusCan’t deny access to schools or programs to students who lack documentation of

immigration status or legal presence in the U.S., or inquire about immigration status Plyler v. Doe, 457 U.S. 202 (1982)).

Proof of residency for a student shall not require proof of legal presence, such as a Social Security number. Permissible combinations of documents must be sufficiently variable to afford an opportunity for those who lack proof of legal presence or immigration status to meet requirements. 23 IL Admin. Code 1.240(b)

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23 IL Admin. Code 1.240

“No school district shall impose requirements for enrollment more restrictive than those established under relevant Illinois and federal law. For example, no school system shall require court-ordered guardianship when an individual enrolling a student meets the legal custody requirements of Section 10-20.12b(a)(2)(iv) or (v) of the School Code [105 ILCS 5/10-20.12b(a)(2)(iv) or (v)], and each school system shall immediately enroll and serve homeless children without requiring the provision of any documentation, in accordance with the Illinois Education for Homeless Children Act [105 ILCS 45] and the McKinney-Vento Homeless Education Assistance Act [42 USC 11434].””