In November 2020, the Legal Aid Society of New York and the Coalition for the Homeless filed a class action lawsuit on behalf of children and youth living in New York City shelters. [1] The suit alleges that several parties, including the City of New York and the New York City Department of Education,[2] failed to provide students experiencing homelessness and living in New York City shelters with “reliable internet access.”^[3] Among other causes of action, the plaintiffs argue this failure violates their right to access education as required under the McKinney-Vento Homeless Assistance Act (“McKinney-Vento Act”).^[4]

Although the parties in this case appear to have reached a settlement agreement,[5] the case elevates an important conversation regarding the legal obligations that states, districts, and schools owe to the homeless children and youth they serve—including those not living in shelters.[6] Further, this case considers the avenues for recourse available for students experiencing homelessness who have been left behind during  the shift to virtual school amidst the COVID-19 pandemic.

Among other provisions of the McKinney-Vento Act, states receive funds from the federal government to support the education of children and youth experiencing homelessness. The purpose of these funds is to “provide services and activities to improve the identification of homeless children and youths. . . and enable  such children and youths to enroll in, attend, and succeed in school” such that they will have equal access to education as their housed peers.^[7] To do so, states must develop, review, and revise “policies to remove barriers to . . . the enrollment and retention of homeless children and youths in schools.”[8] In this context, barriers to enrollment include those  that prevent students from “attending classes and participating fully in school activities.”[9]

Students’ rights to access education equal to their housed peers and government obligations to ensure this access. have not changed during the global pandemic. Meanwhile, internet and technology access have become a pre-requisite for attending school as a result of the shift to virtual and hybrid education models.

And yet, children and youth experiencing homelessness, like many other students, have been unable to consistently access and engage with virtual school. As of October 2020, an estimated 1 to 3 million children had not attended school at all since school closures began in March.^[10] Data also indicate that an estimated 420,000 fewer homeless students have been identified in public schools during the 2020-2021 school year.^[11] At a time when homelessness is likely increasing nationwide, it is unfathomable that the population of students experiencing homelessness shrunk by almost a third, down from 1.5 million identified in public schools in 2019.^[12] Rather, these students are likely among the significant portion of children and youth who have failed to connect to school since the outbreak of the pandemic. According to McKinney-Vento liaisons, one of the most common unmet needs of children and youth experiencing homelessness is access to the internet.^[13] If states and districts fail to take active steps to identify and provide internet access to students experiencing homelessness, they may be in violation of their McKinney-Vento obligations to provide students experiencing homelessness with equal access to education as their housed peers.

Luckily, some states have taken important steps to uphold their McKinney-Vento duties. For example, Illinois and Georgia issued comprehensive guidance to local education agencies on students’ rights and district and school obligations during virtual learning and school reentry.^[14] Additionally, several districts have provided Wi-Fi access for students experiencing homelessness by setting up Wi-Fi hotspots in parking lots, using COVID relief funds to purchase mobile hotspots, and delivering/providing Wi-Fi devices in the same manner that the school provides free meals.^[15] These actions represent just some of the ways that states and districts can seek to meet their McKinney-Vento obligations and support education for children and youth experiencing homelessness as virtual and hybrid education continues.

However, state and local governments can do more to support these students and meaningfully uphold McKinney-Vento obligations. The American Rescue Plan allocates additional federal funding to states and districts that supports education broadly and the education of homeless children and youth specifically.[16] It is crucial that these funds be used to address barriers to engagement, support academic acceleration, and meet these students’ basic needs.   States can allocate funding and provide specific guidance to districts and schools on how both COVID relief funds and annual federal and state funds may be used to support children and youth experiencing homelessness. For example, by providing internet access and computers or tablets. Additionally, states can develop plans to transition students back to school, especially those who have been entirely disconnected for the duration of the pandemic. Finally, at the local level, districts can actively use certain funds, including federal Title I, Part A funds, to support internet access for children and youth experiencing homelessness.[17]Local leaders can also continue to advocate on behalf of their students with the state and federal governments urging them to more adequately address the needs of this population in all pandemic relief efforts.^[18]

As the return to in-person school appears more likely in the near future, the obligation to these children has not changed. The pandemic did not eliminate students’ rights under the McKinney-Vento Act. Ensuring they have an ability to connect to school, whether virtually or in-person, remains a crucial imperative for federal, state, and local actors. Legal obligation and a commitment to educational equity demand it.

 

 

 

[1] Complaint at 1, E.G. v. City of New York, 1:20-cv-09879 (S.D.N.Y. Nov. 24, 2020).

[2] Id.

[3] Id. at 2.

[4] Id.

[5] Memo Endorsement, E.G. v. City of New York, 1:20-cv-09879 (S.D.N.Y. Feb. 26, 2021).

[6] According to the McKinney-Vento Act, “[t]he term “homeless children and youths”— (A) means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 11302(a)(1) of this title ); and (B) includes— (i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; or are abandoned in hospitals; (ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 11302(a)(2)(C) of this title); (iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in section 6399 of title 20 ) who qualify as homeless for the purposes of this part because the children are living in circumstances described in clauses (i) through (iii).”

[7] 42 U.S.C. § 11432(d).

[8] 42 U.S.C. § 11432(g)(1)(I).

[9] 42 U.S.C. § 11434(a)(1).

[10] Hailly T.N. Korman et al., Missing in the Margins: Estimating the Scale of the COVID-19 Attendance Crisis, Bellwether Educ. Partners (Oct. 21, 2020), https://bellwethereducation.org/publication/missing-margins-estimating-scale-covid-19-attendance-crisis#Why%20aren’t%20students%20attending%20school.

[11]SchoolHouse Connection & Poverty Solutions at the U. Of Mich., , Lost in the Masked Shuffle & Virtual Void: Children and Youth Experiencing Homelessness Amidst the Pandemic (2020) https://schoolhouseconnection.org/wp-content/uploads/2020/11/Lost-in-the-Masked-Shuffle-and-Virtual-Void.pdf.

[12] Id. at 3, 6.

[13] Id. at 12.

[14]See Ill. St. Bd. Of Educ. Supporting Homeless Students During the 2020-21 Guidance for Schools and Districts (2020), https://www.isbe.net/Documents/Homeless-Guidance.pdf; Ga. Dep’t of Educ., Title IX, Part A -McKinney Vento-School Closures (2020), https://www.gadoe.org/Curriculum-Instruction-and-Assessment/Curriculum-and-Instruction/Pages/Title-IX%2c-Part-A—McKinney-Vento.aspx. See also SchoolHouse Connection, COVID-19 and Homelessness: Strategies for Schools, Early Learning Programs, and Higher Education Institutions (Oct. 6, 2020), https://schoolhouseconnection.org/covid19-and-homelessness/.

[15] Alvin Makori & Bree Dusseault, Vanishing in plain sight: Districts face barriers to identifying and serving students experiencing homelessness, Ctr. on Reinventing Publ. Educ. (Feb. 4, 2021), https://www.crpe.org/thelens/vanishing-plain-sight-districts-face-barriers-identifying-and-serving-students-experiencing.

[16] As part of the American Rescue Plan Act, the federal government recognized the dire, unmet needs of children and youth experiencing homelessness and created an $800 million fund specifically dedicated to support this population. These funds stem from the nearly $123 billion dedicated to public K-12 education through the Elementary and Secondary School Emergency Relief Fund. See American Rescue Plan Act, Pub. L. No. 117-2 § 2001(a)-(b) (2021).

[17] See 20 U.S.C. 6313(c)(3).

[18] For more suggestions as to how federal, state, and local leaders can support children and youth experiencing homelessness and uphold their McKinney-Vento obligations during the pandemic, see SchoolHouse Connection, supra note 14.