Quality Education for Children with Disabilities: Topic Briefs for Parents and Their Advocates

 

   # 9 -- Homeless Children with Disabilities and the Right to a Free Appropriate Public Education

 

 

Introduction

 

            Children with disabilities who are homeless are entitled under federal law to special education and related services to the same extent as are all other children with disabilities.  Schools may not insist that a child have a fixed address before providing services.  Three federal laws – the Stewart B. McKinney Homeless Assistance Act, the Individuals with Disabilities Education Act, and Section 504 of the Rehabilitation Act -- protect this right.

 

Legal Requirements

            The education provisions of the Stewart B. McKinney Homeless Assistance Act address the rights of homeless students.1  The McKinney Act applies to all states that receive education funds under that statute.  Key provisions include the following:

 

•                     As a matter of Congressional policy, “each State educational agency shall ensure that each child of a homeless individual and each homeless youth has equal access to the same free, appropriate public education, including preschool education, as provided to other children and youth.”2

 

•                     In regard to where a homeless child attends school, the statute provides that the local education agency may continue the child’s education in his or her school of origin for the remainder of the school year (or, if the family becomes homeless over the summer, for the following academic year), or enroll the child in any school that nonhomeless students living in the attendance area in which the child


is actually living are eligible to attend.  This decision must be based on the best interests of the child and, unless not feasible, the school system must comply with the parent’s preference regarding school selection.3

 

•                     Homeless children must be provided services comparable to those offered other students, including “educational services for which the child or youth meets the eligibility criteria, such as...educational programs for children with disabilities.”4 

 

•                     For purposes of the McKinney Act, someone is “homeless” if they lack a fixed, regular, adequate nighttime residence, or if their primary nighttime residence is a shelter, an institution that provides temporary residence for individuals intended to be institutionalized, or a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation.5

 

            Furthermore, IDEA requires that a free appropriate public education be available to all children with disabilities residing within the state.6  The IDEA regulations explicitly point out the obligation to serve children who are homeless, in the context of delineating child find requirements.7  In addition, the U.S. Department of Education/Office for Civil Rights has stressed that the right to a free appropriate public education under the section 504 regulations extends to children with disabilities who are homeless.8

 

 

Notes

 

 


1. See 42 U.S.C. §§11431 - 11435.

2. 42 U.S.C. §11431(1).

3. 42 U.S.C. §11432(g)(3).

4. 42 U.S.C. §11432(g)(4).

5.  42 U.S.C. §11302(a).

6. 20 U.S.C. §1412(a)(1).

7. See 34 C.F.R. §300.125(a)(2)(i).

8.  See, e.g.,  Stockton (CA) City Unified School District, 20 Individuals with Disabilities Education Law Reports (“IDELR”) 27 (U.S. Department of Education/Office for Civil Rights 1/28/93), and Des Moines (IA) Independent Community School District, 18 IDELR 323 (U.S. Department of Education/Office for Civil Rights 9/10/91).