CENTER FOR LAW AND EDUCATION

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197 Friend Street, Ninth Floor                                                                                               1875 Connecticut Ave., NW

Boston, Massachusetts 02114                                                                                              Suite 510

Phone: 617/371-1166                                                                                                             Washington, D.C. 20009

Fax: 617/371-1155                                                                                                                 Phone: 202/986-3000

Fax: 202/986-6648

Q. Are homeless children with disabilities entitled to a free appropriate public education under federal law, or may schools insist that a child have a fixed address before providing services?

A. The education provisions of the Stewart B. McKinney Homeless Assistance Act, found at 42 U.S.C. §§11431 - 11435, address the rights of homeless students. The McKinney Act applies to all states that receive funding under the education title of that statute. Some 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.” 42 U.S.C. §11431(1).

            •          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. 42 U.S.C. §11432(g)(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.” 42 U.S.C. §11432(g)(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. 42 U.S.C. §11302(a).

            Furthermore, the Individuals with Disabilities Education Act (IDEA), of course, requires that a free appropriate public education be available to “all” children with disabilities residing within the state. 20 U.S.C. §1412(a)(1). The new IDEA regulations explicitly point out the obligation to serve children who are homeless, in the context of delineating child find requirements. See new 34 C.F.R. §300.125(a)(2)(i), 64 Fed. Reg. at 12427 (March 11, 1999). In addition, the U.S. Department of Education/Office for Civil Rights has stressed that §504 rights to a free appropriate public education extend to children with disabilities who are homeless. See, e.g., Stockton (CA) City Unified School District, 20 IDELR 27 (OCR 1/28/93), and Des Moines (IA) Independent Community School District, 18 IDELR 323 (OCR 9/10/91).

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ELO