Education Rights of Children Displaced by Hurricane Harvey

Michael A. O’Connor

This fact sheet was originally prepared in the aftermath of Hurricane Katrina. The recent devastation from Hurricane Harvey has triggered this updated version.

For children who have been traumatized by the loss of home, friends, and perhaps death or injury of family members, returning to school is not only important for educational purposes, attendance at a school becomes an oasis of normalcy for them.

As families leave devastated areas, some will disperse to homes of friends and relatives across the country. Others may become unsheltered, or be placed in temporary housing at hotels, motels or military bases by FEMA.

Although media reports have suggested that schools across the country are welcoming displaced children, some parents may encounter problems when enrolling in districts that are unfamiliar with federal and state protections for homeless student identification, enrollment, and attendance. The lack of identity papers, immunization documents, school records, lack of proof of prior residency and lack of parent or guardian signature for an unaccompanied youth may lead some local schools unfamiliar with the rights of homeless students to resist or refuse admitting children eligible for immediate enrollment under the McKinney-Vento Act.

The lack of an IEP or 504 Plan for children may also cause some delays in admission or provision of appropriate services. This memo briefly summarizes basic education rights of all “homeless” children, and also reviews the rights of children with disabilities. The Websites listed at the bottom of the memo offer more detailed information.

McKinney-Vento Homeless Education Assistance Act

The McKinney-Vento Homeless Education Assistance Act as reauthorized by the Every Student Succeeds Act (ESSA) creates, for eligible children and youth:

        • Right to immediate enrollment even when records are not present
        • Right to remain in the school of origin, based on a child-centered, best interest determination
        • Right to receive transportation to and from the school of origin

The definition of "homeless" includes not only unsheltered situations such as living in a tent or car, but also includes families that lack a regular abode (e.g. in a refugee type settlement, or placed in a motel/hotel by FEMA or other agency) or who are temporarily doubled up with another family. Children who have been in pre-school or Head Start programs run by a public school district are also now included in McKinney requirements for identification and services. (42 U.S.C. 11434A(2)(A)

A homeless child must be immediately enrolled, provided full access to classes, be afforded school of origin or comparable service transportation as needed and cannot be discriminated against, or placed in a segregated school, based on their homeless designation. Charter schools are also required to waive most admission requirements such as application and enrollment deadlines. Skills-related entrance requirements need not be waived, e.g., a fine arts school may decline to waive artistic abilities.

Some displaced families may end up in locations not far from their original residence, but outside the boundary of their home school. The McKinney Act expressly provides such children the option to attend their school of origin or home school (if it is still operating) unless attendance there is not in the best interests of the child or is against the parent/guardian’s wishes. Transportation to and from the school of origin must be provided if needed. For homeless children who enroll in a school other than their school of origin, transportation should be provided to the same extent as provided to regular students or consistent with the student’s IEP if he/she has one.

State education agencies (SEA’s) are responsible to ensure compliance by local school districts, also referred to as Local Education Agencies (LEA’s). Each state has designated a coordinator for education of homeless children and youth. The state coordinators for homeless education should be helpful in correcting any barriers or other problems that arise in local school districts. Note that the state coordinator has an affirmative responsibility to assure immediate enrollment pending formal resolution of a dispute over eligibility. Each LEA, must also designate a homeless liaison who is responsible for ensuring compliance in all schools operated by the district. Immediate enrollment is required even if the local school disputes eligibility, enrollment or school selection. The McKinney-Vento law defines enrolled as attending and fully participating. Students must be allowed to remain enrolled pending the completion of a dispute resolution process.

Problem Solving Strategies for Parents and Advocates

Generally, the process of problem solving or advocacy should start with the principal or case manager in a local school. The district’s homeless liaison should be included in any disagreements with identification, enrollment or school selection. The McKinney-Vento law gives homeless liaisons the authority to make identification determinations. The district’s determination must be given to the parent or unaccompanied youth in writing. Should the parent or unaccompanied youth disagree with the campus or district’s decision, they have a right to dispute the determination and appeal the decision all the way up to the SEA Homeless Coordinator. District homeless liaisons have the responsibility to assist families and students with understanding and writing appeals throughout this process. Homeless liaisons are required to be advocates for the family and student during the appeal process. If a local school questions eligibility, school choice, or enrollment, the student must nevertheless be enrolled immediately, and attend, pending completion of dispute resolution procedures.

Each state education agency has developed appeal procedures – those for Texas are listed below. The procedure begins with in an initial review by the school district administration; A dissatisfied parent may appeal to the state education agency. The student must remain enrolled while that review is pending. Links below describe the Texas appeal process; Homeless Coordinators in other state agencies, and their respective websites should be reviewed for information in states other than Texas.

There is no formal appeal process beyond the state education agency determination; however, Federal courts have ruled McKinney-Vento provisions to be enforceable under 42 U.S.C. 1983, and advocates have successfully enforced McKinney-Vento Act provisions in State courts.

Children with Disabilities Who Are Homeless

Children with disabilities who are homeless were expressly recognized in the reauthorization of Individuals with Disabilities Education Act (IDEA) in P.L. 108-446. IDEA incorporates the McKinney-Vento definition of homeless children. 20 U.S.C. 1402(11); 34 C.F.R. 300.19.

Child Find and Surrogate Parents

Child Find obligations imposed on school districts by IDEA to identify, evaluate and provide services to all children with disabilities, no matter how severe, has been expressly extended to homeless children (20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.111). IDEA also requires that “unaccompanied youth,” (that is a child not accompanied by a parent or legal guardian) should have a surrogate parent appointed (34 C.F.R.300.519(a)(4)). (TEA defines an unaccompanied youth as any child who is not yet 21 on the first of September of the current school year and not in the physical custody of a parent or legal guardian. If the child lives in a McKinney-Vento defined situation they are considered homeless as well.)

Homeless Children Who Have No IEP

There will most likely be unique challenges arising for children with disabilities who seek to enroll in a school, but lack an Individualized Education Plan (IEP) or any documentation of the nature of their disability. The enrolling school should immediately request records from the prior school. If records are not available, they should speak with a teacher and/or case manager at the prior school to obtain information about a child’s service needs. Some states, such as Louisiana, provide for an “interim IEP” pending further evaluation when limited information is not available.

Moreover, many children, including those not previously eligible for special education services, will have such emotional scars from their experience that they will be in need of social work and/or psychological services, which the school should promptly identify and provide as needed.

The burdens and costs of conducting adequate evaluations of children will be a strain for many school districts, possibly causing many children to be at risk of not receiving prompt evaluations and specialized services.

Unique Challenges of Displaced Children

Some urban areas, especially those within 400 miles of Houston, will experience a large influx of displaced children, and will likely present unique challenges. Some children will be parceled out among relatives and family friends; a caretaker who is not the parent or legal guardian should not be barred from enrollment of a homeless child or youth.

If systemic problems are encountered, parents and local advocacy organizations should seek assistance from national groups listed below.

More Information

National Center for Homeless Education – Funded by the U.S. Department of Education, the National Center for Homeless Education (NCHE) operates the Department's technical assistance center for the federal Education for Homeless Children and Youth (EHCY) Program. In this role, NCHE works with schools, service providers, parents, and other interested stakeholders to ensure that children and youth experiencing homelessness can enroll and succeed in school.

National Association for the Education of Homeless Children and Youth (NAEHCY) - a national membership association, serves as the voice and the social conscience for the education of children and youth in homeless situations; connects educators, parents, advocates, researchers and service providers to ensure school enrollment and attendance for children and youth whose lives have been disrupted by the lack of safe, permanent and adequate housing.

Texas Education Agency (TEA) is the state education agency for Texas and has ultimate responsibility for enforcing the McKinney-Vento Act requirements. In addition, the Texas Homeless Education Office (THEO), located at University of Texas Austin is contracted by TEA to provide training and technical support, including an 800 line for inquiries from school personnel, community stakeholders, parents/caretakers and students. The following are URL’s for more information, including lists of local school district homeless liaisons and dispute resolution procedures. In case of any difficulty in obtaining immediate enrollment, school selection or appropriate services, contact the LEA homeless liaison. If the issue is not resolved by the district’s homeless liaison, contact the Texas Homeless Education Office.

     - Summary of McKinney requirements
     - FAQ re dealing with disasters
     - Texas Homeless Education Office
     - Directory of Homeless liaison staff at respective Texas school districts
     - Dispute resolution procedures for Texas Education Agency
     - Forms and procedures for initial appeal

Although this fact sheet focuses on Texas, every state education agency has set up similar contacts and procedures. You can obtain information on other states from the National directory of state coordinators of homeless education.

Additional Resources

Council of Parent Attorneys and Advocates (COPAA) - An organization of attorneys, advocates and parents whose primary mission is to secure high quality educational services for children with disabilities.

National Law Center on Homelessness and Poverty has posted a 250+ page manual on enforcement of the McKinney Act – The Law Center also offers a second manual focused on enforcement after natural disasters.

The Federally Funded Parent Training and Information Centers (PTIs) are located in each state to provide training and information to parents of infants, toddlers, children, and youth with disabilities and to professionals who work with children.

Wrightslaw maintains an extensive website on special education advocacy, with pages devoted to issues on educating homeless children.

Michael A. O'Connor, Esq.*

Mauk & O'Connor, LLP
1427 W. Howard Street
Chicago, IL 60626-1426
Phone: 773 262 2199
Email: mikeoc@earthlink.net

Created: 9/8/2005
Revised: 09/01/2017

*Mike O'Connor is an attorney who represents families in special education disputes