Q&A From the Field

McKinney-Vento (Enrollment & Participation)

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You are correct that McKinney-Vento, as a federal law, supersedes state law, and a blanket policy like “Exclusion Day” cannot be applied to McKinney-Vento students. McKinney-Vento requires that districts review and revise policies to “remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths in schools in the State.” [42 U.S.C. §11432(g)(1)(I)]. Excluding these students creates a barrier and may prevent immediate enrollment and full participation under McKinney-Vento [42 U.S.C. §11434A(1)].

You’d want to look at each situation individually – if a family is simply refusing immunizations despite advocacy and support from the liaison, exclusion could be applied (although the family would also have access to medical, religious, or philosophical exemptions that exist in the district or state).

An important first step in your advocacy is to make sure the student is connected to the homeless liaison, who can assist with removing barriers to academics and extracurricular activities. Depending on what is happening with the student’s grades, he may be able to get a waiver for participating in varsity sports. If you can connect his struggling grades with his homelessness, which seems likely due to his mobility and the correlation in time of his loss of housing and the drop in his grades, there is a strong argument that he should get a waiver.

Check out this resource for more information.

In terms of a right to attend this school under the McKinney-Vento Act, it would have to fall under this section of the law: “(ii) enroll the child or youth in any public school that nonhomeless students who live in the attendance area in which the child or youth is actually living are eligible to attend.”  42 USC 11432(g)(3)(A)(ii). The family would have to follow the same procedures as other children living where they are currently staying. There may be an argument that the student needs to go to school with the family member because of all the instability the student has experienced. Not allowing the student to attend that school could be a barrier to enrollment (including full participation) and retention in school. The student’s application should be prioritized, and you can cite this piece of the law:  “(I) A demonstration that the State educational agency and local educational agencies in the State have developed, and shall review and revise, policies to remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths in schools in the State, including barriers to enrollment and retention due to outstanding fees or fines, or absences.” 42 USC 11432(g)(1)(I)

This is complex, since the students were McKinney-Vento eligible when they applied to the out-of-boundary school and agreed to comply with certain expectations. At the same time, that is now their school of origin. The best approach under the law would be for the school to do a best interest determination. If the students’ absenteeism, behavioral challenges, or other issues get to the point where it’s no longer in their best interest to attend that school, then the school could provide written notice to that effect and offer the dispute resolution process.  Parents who file a dispute would have the opportunity to show that it is in the student’s best interest to remain in the school of origin.

However, first it’s necessary to look at what is behind the attendance and behavioral problems. The McKinney-Vento Act requires removing barriers to enrollment and retention in school, including barriers related to attendance. Therefore, the school must work with the students and parents to identify the causes of the issues and put interventions in place to address them.

You were correct to enroll the child immediately under the McKinney-Vento Act. She is eligible and school is the safest place for her. The student can remain enrolled under McKinney-Vento without a birth certificate for as long as she is experiencing homelessness. It is important to encourage her mother and step-father to work on obtaining the birth certificate, as she will need it eventually. You can provide any support you can. Your state’s vital records office will have a process to secure the birth certificate without a documented birth, so start by reaching out to that office. It is also recommended that you check the Missing Children’s hotline/list that NCMEC offers, here, to be sure she has not been abducted. Based on the information you have shared, there is no need to contact child protective services or your attorney. (Keep in mind that contacting child protective services could create a barrier to the student’s enrollment and retention in school, which would violate the McKinney-Vento Act.)

The information from the administration department is incorrect as it relates to McKinney-Vento students. In the example you shared, the student absolutely should not have been dropped.  Under the McKinney-Vento Act, local educational agencies must “review and revise policies to remove barriers to the education of homeless children and youth, including barriers to enrollment and retention due to outstanding fees or fines, or absences.” 42 U.S.C.§11432(g)(1)(I). “Enrollment” is defined in the law as “attending classes and participating fully in school activities.” 42 U.S.C. §11434A(1). A school district policy that automatically drops McKinney-Vento students after 10 days of non-attendance, with no regard for the causes of the absences, the impact of homelessness, or interventions to support attendance, is a serious violation of the McKinney-Vento Act.

Many states have “10-day drop” laws or policies. Those state laws and policies conflict with federal law.  The U.S. Constitution establishes that federal law supersedes state law where the two conflict (Article VI, the “Supremacy Clause”). The district must follow federal law.

The McKinney-Vento Act requires LEAs to review and revise policies that act as barriers to the identification, enrollment, and retention of homeless children and youth, including barriers caused by absences. 42 USC §11432(g)(1)(I). Therefore, if students miss school due to their homelessness, it should not count toward the 15 days. The key really is to intervene immediately, when the student is absent just for one or two days, to find out why and to provide support and mentorship. In addition, if informing the parents of an unaccompanied youth would create a barrier to retention or re-enrollment, the school should not inform the parent.

Under the McKinney-Vento Act, the student has the right to enroll in any school that other students living where she is living would be eligible to attend. 42 USC §§11432(g)(3)(A). If other 18-year olds can enroll in the local high school, this youth also must be given that opportunity. She also should be provided with appropriate English learner services and other supports. It may be the case that eventually, she transitions into an adult program or GED course. However, she has the right to enroll in high school and try to get her diploma, with appropriate English Learner and other supports in place.

Yes, as long as the letter and process comply with the McKinney-Vento Act. The most directly relevant section of the law is 42 USC §11432(g)(3)(B)(iii):

“if, after conducting the best interest determination based on consideration of the presumption in clause (i) and the student-centered factors in clause (ii), the local educational agency determines that it is not in the child’s or youth’s best interest to attend the school of origin or the school requested by the parent or guardian, or (in the case of an unaccompanied youth) the youth, provide the child’s or youth’s parent or guardian or the unaccompanied youth with a written explanation of the reasons for its determination, in a manner and form understandable to such parent, guardian, or unaccompanied youth, including information regarding the right to appeal under subparagraph (E);”

It seems like, based on lack of attendance despite extensive efforts by the school to remove barriers, the district is making a determination that it is not in the student’s best interest to continue to attend the school of origin.  Based on my review of the letter’s form and content, I would say the district is providing written notice with an explanation of the decision, in an understandable manner and form, and with clear instructions for how to appeal the decision.  The district should provide this letter using all contact information available (mail it, text it and/or email it if they have cell phone or email info, etc.) and give the parent (or unaccompanied youth) a chance to respond.

Now, if a student misses a few days of school, and the school does little or nothing to intervene or support, but just sends out a letter like this and drops the student, that would not be acceptable under the law.  The McKinney-Vento Act requires LEAs to remove barriers to enrollment in school, which includes attendance.  42 USC §§11432(g)(1)(I) and 11434a(1). Based on your description of the history here, it seems like the school has made extensive efforts to remove barriers.

Also, I am assuming that there is reason to believe attendance would be better at the local school. In other words, there is reason for the school to determine that attendance at the local school is in the student’s best interest.  The McKinney-Vento Act can’t be used as a tool to get students with attendance struggles out of the school.  There should be objective factor(s) making the local school better from a student-centered perspective. For example, maybe the commute is a challenge for the student for a particular reason, or the student just doesn’t like the school of origin and really wants to attend a different school, or the parent isn’t following through with transportation but the student could walk to the local school on his own.

In terms of authorizing an unaccompanied youth to go to a GED testing site or a community agency, the district should follow whatever the policy is for other activities for unaccompanied youth. Most districts let youth make decisions about enrollment, scheduling, leaving campus for a doctor visit, etc. on their own behalf. If that is your policy, then the district should follow the same policy for GED tests and referrals to community agencies.

Liability always is based on reasonable care and negligence. Whether you are working with a parent or a youth, that is always the basis for liability. The best protection is to exercise reasonable care— provide complete information to the parent/student about the health precautions in effect at the site and the best information you can share about risks, and let the parent/youth make the decision. If you send a youth to an indoor location where you know hundreds of students will be crammed in small spaces with no masks, no social distancing, and no other precautions, and you are requiring the youth to go, that potentially could give rise to a problem. But that does not seem to be the situation.

COVID-19 is a known risk that any reasonable person should understand at this point. We are not aware of any liability for referring a youth or family for optional in-person services, or even that an unaccompanied youth or parent has brought a lawsuit like that. The community agency and GED site might have slightly more of a liability risk, but again, only if they were being unreasonable in how they were accommodating people. If they are following basic guidelines of social distancing, masking, etc., there should be little to no risk.

For your McKinney-Vento students, personal protective equipment should be provided as needed.

Yes, there are lottery exemptions for students experiencing homelessness.  There is information on this on pages 7-8 of our charter schools toolkit.  The McKinney-Vento Act requires LEAs to remove barriers and provide immediate enrollment even if the student “has missed application or enrollment deadlines during any period of homelessness.”  42 USC §11432(g)(3)(C)(i)(II). As long as there is space, the student should be enrolled right away. The student’s age is not a factor, as long as he is eligible for public school.

NCHE has a brief, which was developed in collaboration with USDA, that addresses this question:

“There can be no delay in providing free meals to students who meet the relevant nutrition program eligibility criteria due to unpaid fees. In this case, the district may waive the fees, pay the fees with funds such as donations from PTOs or PTAs, or follow any of the district’s standard unpaid meal fee procedures that do not delay or disrupt the student’s receipt of free meals. Regardless of how the fees are handled, Section 722(g)(1)(I) McKinney-Vento Act requires the elimination of barriers to a student’s full participation in school. Therefore, unpaid fees and actions taken to collect them may not pose a barrier to the student’s full participation in classes, extra-curricular activities, field trips, graduation ceremonies, and other school activities.”

McKinney-Vento students are automatically eligible for free school meals. Also, if a student has fees or fines from a time when they were experiencing homelessness, but were not yet identified, those fees must be forgiven. The district can seek retroactive reimbursement.

No. The student can remain in his school of origin, which in this case is the alternative high school, or enroll in any school that students living where he is staying now would be eligible attend. 42 USC §§11432(g)(3)(A)-(B). Assuming students living where he is currently staying are not eligible to enroll in the high school he was zoned for before, he would not be eligible to enroll there. Depending on his best interest, he should stay in the alternative school (the McKinney-Vento Act presumes that staying in the school of origin is in the student’s best interest), or enroll in the local school or other school that serves the area where he’s currently staying.

Under the McKinney-Vento Act, students experiencing homelessness must be able to participate fully in athletic activities. 42 USC 11434A(1). You can read and download a brief that explains his rights here, and we also have a sample template and advocacy tools that you can use to assist him, if you need those.

Unfortunately, the child does not have the right to enroll in your district under the McKinney-Vento Act. Your district does not meet the definition of school of origin, because the child never attended that school—it is not the school attended when permanently housed or the school in which last enrolled. 42 USC 11432(g)(3)(I). It’s also not a school that other children living where she is living are eligible to attend. 42 USC 11432(g)(3)(A).

If open enrollment or other transfer procedures are available for families to enroll from out of district, the family needs to have access to those. But there is no McKinney-Vento requirement to enroll the child in your kindergarten based on the siblings’ past attendance in your district. If there is no procedure available for the child to enroll in your district, then the child would need to enroll in the kindergarten classroom that other children living where she is living would be eligible to attend.

The barrier to enrollment here appears to be the father’s work schedule, rather than homelessness per se. What does the district do when parents cannot take off work to complete school enrollment procedures? Is there a process for these students generally? It would seem that this father should be able to use a similar process.

Nonetheless, McKinney-Vento students must be enrolled immediately under the McKinney-Vento Act, even if they cannot produce paperwork that is typically required for enrollment, including guardianship paperwork. 42 USC 11432(g)(3)(C). In addition, local educational agencies must review and revise policies that act as barriers to enrollment for homeless students, including guardianship policies. 42 USC 11432(g)(1)(H) & (I). The bottom line is that the student must be provided with immediate enrollment, which includes attending classes and participating fully in school activities. The enrollment procedure must ensure this– whether through the aunt enrolling the student, or the enrollment process being modified another way to remove the barrier for this parent.

No. McKinney-Vento students have the right to immediate enrollment, which includes attending classes. 42 USC 11432(g)(3)(C).  Delays in setting up transportation to the school of origin would make that enrollment not immediate. The district must provide immediate enrollment, including transportation to the school of origin.  If the district is using a yellow school bus for transportation, and there is a lag time to reroute the bus, then the district must put other services in place in the meantime. This could include public transportation, ride share, taxis, etc.

The student would be eligible to enroll in the school with your daughter under the same conditions and subject to the same requirements of any other student who is openly enrolling in the school. McKinney-Vento students have the right to immediate enrollment in the school of origin or a school another student living where the student is living would be eligible to attend. 42 USC 11432(g)(3)(A)(ii). Since your daughter’s school is out of district, he would have to comply with the open enrollment rules and processes.

Yes, you are correct! The McKinney-Vento Act is clear that immediate enrollment is required for McKinney-Vento students, even if the students are not up to date on immunizations. 42 USC 11432(g)(3)(C)(i)(I). As a liaison, you would work with the family and school to help the children get immunized as soon as possible.

Below is the exact language from the McKinney-Vento Act.  The citation is 42 USC 11432(g)(1)(I). This student has been missing school after becoming homeless.  He now faces barriers to graduation due to his homelessness and the absences. The district has a choice between helping the student graduate and the student dropping out of school just weeks prior to graduation.  It seems clear that helping the student is in the best interest of both the student and the school. Helping the student also is required by federal law. The law requires the LEA to remove barriers to enrollment and retention in school.  The prospect of not graduating just days or weeks shy of the end of the student’s senior year is an extreme barrier. The LEA must remove this barrier. Allowing the student to make up work and sit for his exam is a simple way to remove the barrier.  If LEA policy impedes removing the barrier, then the policy must be changed and/or an exception made.

“(I) A demonstration that the State educational agency and local educational agencies in the State have developed, and shall review and revise, policies to remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths in schools in the State, including barriers to enrollment and retention due to outstanding fees or fines, or absences.”

[Update: the student was allowed to make up his work.]

Under the McKinney-Vento Act, State and local educational agencies must “review and revise policies to remove barriers to the education of homeless children and youth, including barriers to enrollment and retention due to outstanding fees or fines, or absences.” 42 U.S.C.§11432(g)(1)(I). “Enrollment” is defined in the law as “attending classes and participating fully in school activities.” 42 U.S.C. §11434A(1). A school district policy that prohibits homeless student from participating in graduation due to absences related to homelessness creates a barrier to enrollment. Therefore, school policies must create exceptions for students whose absences were related homelessness. Those absences can be excused so they do not erect barriers to participation, or the policy simply can exempt students experiencing homelessness. School policies must not pose a barrier to homeless students participating fully in a school activity, such as graduation.

The McKinney-Vento Act requires the school district and state to remove barriers to retention in school.  42 USC §11432(g)(1)(I). It certainly is a barrier to retention if a student who has recently moved from out of state, and who has all the credits needed to graduate, is barred from graduating.  It’s easy to imagine that the student will be at serious risk of dropping out of high school if she thinks there is no way for her to graduate on time. So the McKinney-Vento Act would require some accommodations for her.

One approach would be for the district and/or state to waive the requirement of the state test and provide her with a high school diploma and the ability to walk with the class.  Another approach would be to allow her to take the state test, despite the timing, and have her walk with her class even if the test results have not arrived yet. She also will need appropriate support to prepare for the test, as well, since she is new to your state.  Another approach would be to get in touch with her previous school in the other state, and get that school to issue a diploma from that district and state. This is a common solution that many liaisons have used.

We’ve worked on legislation in a few states to exempt homeless students from state exams automatically if they change schools in their last 2 years of high school.  Unfortunately, your state does not have such a law. But the McKinney-Vento Act’s barrier removal provisions still mandate some accommodation so the student can graduate.

Yes, you are. The McKinney-Vento Act’s provisions on immediate enrollment are clear.

“(C) IMMEDIATE ENROLLMENT-

(i) IN GENERAL.– The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth—

(I) is unable to produce records normally required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation; or

(II) has missed application or enrollment deadlines during any period of homelessness.” 42 USC §11432(g)(3)(C).

“(1) The terms `enroll’ and `enrollment’ include attending classes and participating fully in school activities.” 42 USC §11434a(1)

The phrase “participating fully in school activities” is the key here.  Unless varsity sports are not a school activity, then there is no legal basis for the argument that immediate enrollment applies only to junior varsity sports. More information is available in our brief “Full Participation in Extra-Curricular Activities for Students Experiencing Homelessness.”

The McKinney-Vento Act does contain some specific requirements around absences. In particular, under the Act, states and LEAs must review and revise policies to remove barriers to the education of homeless children and youth, “including barriers to enrollment and retention due to outstanding fees or fines, or absences.” The citation is 42 U.S.C. §11432(g)(1)(I).

In this case, I think the issue would be if he is being penalized in some way because of the absences–for example, is he being given failing grades automatically because he has missed so many days of school? In addition, is anything being done to help him catch up from the days he missed? For example, is he receiving help before or after school, or even during school, to help him make up for what he missed?

Also, are the absences and/or tardies related to difficulties with transportation?

Lastly, do you know if the McKinney-Vento liaison has been informed of his status, so that he can be connected to the supports provided by that program, or by Title I?  We strongly suggest making that connection.

This is a bit tricky, because on the one hand, the technical answer to the question is yes–but in practice, the answer is no. Here’s why: once the student begins attending the transfer school, that school becomes the student’s school of origin. The initial decision about granting the transfer is up to the school district, and that decision can be made on the same basis as it would be made for a non-homeless student. However, once the student starts attending, the school meets the definition of school of origin, as it is now the school in which the child was last enrolled. So the student has the right to remain in that school, as long as it is in his best interest.

In this case, it may not be in the student’s best interest to remain in the transfer school, because he is not attending. The appropriate response would be to hold a best interest meeting, thinking about what interventions might work to improve the student’s attendance, and/or whether there’s another school that could improve his attendance. We know students experiencing homelessness are much more likely to be chronically absent than any other student group. Truancy proceedings are unlikely to help this situation, unless they result in some positive interventions and actions to improve attendance. If the student is just going to end up in court with a fine, then that’s not a solution for the student or the school.

Unfortunately, it is not uncommon for athletic associations to think that the McKinney-Vento Act does not apply to them – but, it does. This detailed brief describes all the ways in which the law applies here.

Since your state has a form for homeless students, there must be some recognition of the need to waive existing rules for homeless students.  There is strong legal precedent on these issues, so perhaps the representative at the state athletic association with whom you spoke is not aware of the law. Perhaps sending her this brief could help.

In case you are met with additional resistance, we suggest calling your State Coordinator to ask them to intervene on your behalf.

Two other “last resort” tactics that have been successful advocacy strategies are getting a lawyer and/or the press involved. A lawyer may have more luck persuading the state athletic association of the McKinney-Vento Act’s application. These stories tend to get very sympathetic coverage in the press, which sometimes sways athletic associations.  Of course, these are both last resorts, and ultimately it would be up to the students whether they wanted to pursue those angles.

For McKinney-Vento eligible students, the district has to:

“review and revise, policies to remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths in schools in the State, including barriers to enrollment and retention due to outstanding fees or fines, or absences.” 42 U.S.C. § 11432(g)(1)(I).

Since “enrollment” is defined as “attending classes and participating fully in school activities”, you do need policies to remove barriers to graduation.  The provision of yearbooks is a gray area, since not all students get yearbooks. However, a lot of districts will waive yearbook fees or pay for them with donations from the PTA or other organizations.

You are correct that schools cannot ask parents for documentation of their homeless status as a condition of enrollment. The relevant citation is 42 U.S.C. § 11432(g)(3)(C), which pertains to immediate enrollment:

(C) IMMEDIATE ENROLLMENT-
(i) IN GENERAL.– The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth

(I) is unable to produce records normally required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation; or
(II) has missed application or enrollment deadlines during any period of homelessness.

In addition, state and local educational agencies are required to review and revise policies to remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths. That citation is 42 U.S.C. §11432(g)(1)(I). A policy requiring homeless families to produce hotel receipts or eviction notices creates barriers to enrollment (and possibly also identification and retention).

NCHE has produced a brief on confirming eligibility that may be helpful. It may be downloaded here.

One circumstance in which substantiation of homeless status might be necessary is in the course of a dispute over eligibility. If a school has reason to suspect that a family is fraudulently claiming homelessness, the school must provide a written explanation of its reasons, and include information about the right to appeal. If the family chose to appeal, they might provide receipts or notices as part of that process.

If a school is aware that a McKinney-Vento student does not have a safe place to be during the day, and something happens to the student while suspended, the district could be exposed to liability. This is particularly true considering that the McKinney-Vento Act requires state and local educational agencies to review and revise policies to remove barriers to the identification of homeless children and youths, and the enrollment and retention of homeless children and youths.  42 U.S.C. § 11432(g)(1)(I). You also might want to share our document on school discipline and homelessness for some ideas on positive school discipline practices to avoid out-of-school suspensions.

The McKinney-Vento Act applies to the policies and procedures of the state athletic league. McKinney-Vento requires that lack of parent or guardian cannot be a barrier to enrollment, which includes full participation in school activities. So this procedure/requirement is a barrier that violates the McKinney-Vento Act. Legally speaking, a signature acknowledging concussion risk provides little, if any, protection against a potential lawsuit. It is a procedure that may be a good practice and may soothe administrators’ concerns, but it will not prevent a lawsuit or shield the LEA or state athletic league from liability. However, preventing unaccompanied youth from participating fully in school activities certainly is grounds for a lawsuit. Administrative complaints and lawsuits have been filed to enforce homeless youths’ rights to participate in sports, including the rights of unaccompanied youth. To my knowledge, the school districts and athletic associations have lost every such claim that has been filed. To resolve this issue, state athletic league and the LEAs need to develop an alternate procedure for unaccompanied youth, since the current procedure is a barrier. That could include the youth himself signing the document; it could include the parent signing IF the parent is reasonably available and willing to sign; it could include a caretaker signing, IF one is available and willing to sign; it could include a coach, athletic director or other administrator signing. Federal law does not define how the barrier must be removed, only that a policy/procedure to remove the barrier must be in place. With these students, as with all students, it is critical that coaches and other LEA staff exercise reasonable care to prevent injuries. That, and only that, will provide protection in the case of a lawsuit.

The McKinney-Vento Act requires schools to enroll students experiencing homelessness immediately, even if the student is unable to provide documents that are typically required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation. TB tests would fall under “other required health records.” The legal citation for that provision is 42 U.S.C. §11432(g)(3)(C). In addition, “enroll” is defined in the Act as attending classes and participating fully in school activities. The citation for that provision is 42 U.S.C. §11434A(1). There is additional supporting information on this issue on page 24 of the Department of Education’s Guidance.

Yes, the McKinney-Vento Act would cover this situation. Specifically, McKinney-Vento requires SEAs and LEAs to develop, review, and revise policies to remove barriers to the identification, enrollment, and retention of homeless students in school, including barriers due to fees, fines, and absences.  42 U.S.C. §(g)(1)(I).  Even though the fees were incurred prior to homelessness, they now are acting as a barrier to the student’s “enrollment.” The law defines enrollment as “attending classes and participating fully in school activities,” and graduation is a school activity. Therefore, barriers to participating in graduation caused by fees must be removed. This might be waiving the fee, or using McKinney-Vento or other funds to pay the fee. But the barrier must be removed.

The emergency contact can be whomever the district wants.  It can be the parents, even though they are not involved. (The district may want to leave the parents as the emergency contact for liability or other reasons, depending on the specifics of this situation.)  It can be the liaison.  (Again, the district may or may not want this due to liability concerns.) It can be the person the student is staying with in his/her capacity as caregiver, not as district employee.  It can be a CPS worker of some kind. The only requirement under McKinney-Vento is that the question of who to list as emergency contact cannot delay enrollment, including full participation in school.  If the student has an allergy emergency during the school day, then the appropriate school employee should respond rapidly and appropriately, following the protocols that are in place for such an event.  I assume that would be administering an Epipen, if the student has one.  If not, it would probably be calling an ambulance.  Emergency medical teams will treat an emergency without any adult consent. If the district is concerned about liability, administrator should consider the possibility of the child having an allergic reaction alone and getting very ill or dying, when the child should have been in school surrounded by adults who could have dialed 911 and saved his/her life.  Violating the McKinney-Vento Act certainly would be a significant aggravating factor in a civil lawsuit should something happen to the student while the school is illegally keeping him out of school.

McKinney-Vento does not require a school to go over capacity.  One thing to keep in mind is that a McKinney-Vento student always has the right to remain in the school of origin.  So for example, a school cannot deny a McKinney-Vento student enrollment due to being full if the school is the student’s school of origin.  That student already has a seat in that classroom, and s/he can’t be forced to give it up to another student just because homelessness has the student living out of the attendance area or district.

But if a student is coming into the area brand new and seeking to enroll as a first-time student, and the classroom or program is full, there is no requirement to go over capacity.  If the school is able to make space, and it’s in the child’s best interest, that is terrific.  But it is not required.

Schools also should keep track of McKinney-Vento students coming in after the school is full, because that data can help the school plan for the future. The US Department of Education’s Guidance says:

“LEAs should anticipate and accommodate the needs of McKinney-Vento-eligible students to enter charter schools, magnet schools, and other schools, programs, and activities despite missing application and enrollment deadlines due to a period of homelessness. In addition, LEAs should consider giving homeless children and youths priority if there is a waitlist for these schools, programs, and activities.” (Question I-6).

So as data show the need to hold spaces open and/or prioritize McKinney-Vento students on waitlists, schools should take those actions. This is particularly important for preschools and other early childhood programs.

The liaison has the legal responsibility to ensure enrollment disputes are mediated and to carry out the dispute process expeditiously. 42 USC §§11432(g)(3)(E)(iii) & 11432(g)(6)(A)(vii). In order to do this, the liaison must collect all the facts to be able to determine how the student’s situation fits under the law. In addition, the liaison also has the duty to ensure “the parent or guardian of the child or youth or (in the case of an unaccompanied youth) the youth shall be provided with a written explanation of any decisions related to school selection or enrollment made by the school, the local educational agency, or the State educational agency involved, including the rights of the parent, guardian, or unaccompanied youth to appeal such decisions.” 42 USC §11432(g)(3)(E)(ii). The liaison cannot provide a written explanation without understanding the full story of the dispute.

In no case should students be missing school or forced into a school contrary to their wishes while disputes are resolved. “The child or youth shall be immediately enrolled in the school in which enrollment is sought, pending final resolution of the dispute, including all available appeals.” 42 USC §11432(g)(3)(E)(i). While disputes must be resolved as expeditiously as possible, the liaison must take the time necessary to collect the information needed to mediate the dispute, apply the law, provide written notice, and consult with the State Coordinator or others as needed.

Answer:  This provision is broader than only activities related to academics.  Rather than “academic,” the activity must be an integral part of school activities.  The basis for this is:

  • The definition of “enrollment” includes attending classes and participating in school activities.  The law says “school activities”, not “academic activities.”
  • McKinney-Vento State Plans are required to describe procedures to ensure that “homeless children and youths who meet the relevant eligibility criteria do not face barriers to accessing academic and extracurricular activities, including magnet school, summer school, career and technical education, advanced placement, on-line learning, and charter school programs, if such programs are available at the State and local levels.” 42 U.S.C. §11432(g)(1)(F)(iii). Although the examples in this paragraph are generally academic in nature, the use of the word “including” means that the statutory examples are not intended to be an exhaustive list. The law also clearly states “academic and extracurricular activities.”  The use of the word “and” indicates that the law looks at academic activities and extracurricular activities as two different things.

This brings us to another question: what extracurricular activities are an integral part of school activities?  We think it has to have a tight relationship with the school, and what students in general do or have access to.  This is another area of McKinney-Vento where decisions should be made on a case-by-case basis.

For activities that do not have a close enough connection to school and what students in general do, or have access to, the next question to ask is what the district does for other students in poverty.  It is important to explore PTA funds, donations, or other ways to cover those costs.

The term “club sport” can mean different things in different places, so first, we need to clarify that club basketball is a school activity, and not a community league or otherwise not directly connected to school. If club basketball is not a school activity, the McKinney-Vento Act will not apply. However, assuming that club basketball is a school activity, then McKinney-Vento does apply. McKinney-Vento defines “enroll” to include participating in school activities, which includes academic, athletic, and other school activities. So McKinney-Vento students need to be able to participate. In addition, as you said, if this student cannot play basketball, it could be a barrier to her retention in school, since basketball is keeping the youth engaged and successful in school.

The McKinney-Vento Act does not specify how the barrier needs to be removed— it could be the DHS worker signing, which as you said, would probably be the best resolution. It also could be a judge’s order, or the student just signing for herself. McKinney-Vento requires elimination of the barrier, but the “how” is up to the school district and the situation.

Generally, yes. Depending on how the state organizes charter schools, they either are their own local educational agencies (LEAs) or part of another LEA. Either way, the McKinney-Vento Act applies to charter schools. ESSA amended McKinney-Vento to ensure that “homeless children and youths who meet the relevant eligibility criteria do not face barriers to accessing academic and extracurricular activities, including . . . charter school programs.” 42 USC §11432(g)(1)(F)(iii). Another ESSA amendment states that McKinney-Vento students are entitled to immediate enrollment “even if the child or youth has missed application or enrollment deadlines during any period of homelessness.” 42 USC §11432 (g)(3)(C)(i)(II).

Therefore, unless the relevant classroom is full, or the charter school has specific skill requirements the student does not meet (like a school for the arts that requires certain artistic abilities), the charter school must enroll the student, even if application or enrollment deadlines have passed. In addition, the US Department of Education’s Guidance states that “LEAs should anticipate and accommodate the needs of McKinney-Vento-eligible students to enter charter schools, magnet schools, and other schools, programs, and activities despite missing application and enrollment deadlines due to a period of homelessness. In addition, LEAs should consider giving homeless children and youths priority if there is a waitlist for these schools, programs, and activities.”

Yes, the McKinney-Vento Act itself specifically states that schools must enroll students experiencing homelessness immediately, even if the student is unable to provide documents that are typically required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation. The exact location of that requirement in the law is 42 U.S.C. §11432(g)(3)(C).

This provision means that families experiencing homelessness are not required to provide physical addresses as a condition of enrollment. However, the Act does not prohibit schools from requiring parents, guardians, or youths to submit emergency contact information. This could simply be a phone number.

No. The youth is not too old to enroll in high school. The maximum age for high school enrollment depends on state law, but a 17-year old is eligible. While often school is not compulsory after age 16, it is allowed. Particularly for a McKinney-Vento student, who has the right to immediate enrollment, denying enrollment due to his age is a severe violation.

There is not a specific time limit on how long McKinney-Vento students can be in school while immunizations or other health records are obtained. The vast majority of students experiencing homelessness have been enrolled in school before and have had required immunizations. Those records should be a part of their school records. Since the enrolling school is required to contact the previous school for records, the information should be available quickly. The enrolling school and the McKinney-Vento liaison should work together to get immunization records as soon as possible.

If a student has not had immunizations, initial doses should be administered as soon as possible, unless the student has a philosophical, religious, or medical exemption. (It is accepted practice in the public health community that some children will not be immunized for these reasons, and the fact that most students are immunized prevents serious outbreaks from occurring.)

Immediate enrollment requirements include extra-curricular activities. The McKinney-Vento Act requires states and LEAs to eliminate barriers to school enrollment and retention for children and youth experiencing homelessness. 42 U.S.C. §§11432(g)(1)(I), (g)(7). Enrollment is defined as attending school and participating fully in school activities. 42 U.S.C. §11434A(1). Sports, including at the varsity level, are school activities. Further, McKinney-Vento state plans are required to describe procedures to ensure that “homeless children and youths who meet the relevant eligibility criteria do not face barriers to accessing… extracurricular activities….” 42 U.S.C. §11432(g)(1)(F)(iii).

Yes. The main issue here is the former school not releasing the records. McKinney-Vento requires that school records be maintained so they “are available, in a timely fashion, when a child or youth enters a new school or school district.” 42 USC §11432(g)(3)(D)(i). If the school is withholding the records due to an unpaid fee, fine or other issue, that creates a barrier to enrollment in the new school, which also violates the McKinney-Vento Act. 42 USC §11432(g)(1)(I).

Even if you cannot get the records in time, the student should be allowed to participate in the swim meet. “Previous academic records” are specifically listed in the law as something that cannot delay immediate enrollment. 42 USC §11432(g)(3)(C)(i)(I). Enrollment includes participating fully in school activities, and the swim team is a school activity. Therefore, McKinney-Vento requires the school to allow her to participate in swimming immediately. When the records arrive, if they indicate she is not eligible for academic reasons, at that time the school could respond appropriately.

It’s worth pointing out that this is a situation where a previous school is (illegally) withholding records. There is no allegation that the student is trying to hide her records as a way to participate in swimming against state or district policy.

No. Since this is a McKinney-Vento family, they need to be enrolled immediately, even without the TB test.  This is clear in the law:

“The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth—

is unable to produce records normally required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation”  (42 USC §11432(g)(3)(C)(i)(I)).

Unless the student is showing active symptoms of a contagious disease, a school cannot deny or delay enrollment while immunization or other health records are obtained.

While McKinney-Vento requires immediate enrollment (including full participation), there is no blanket exemption from all of the athletic association requirements for homeless students. The McKinney-Vento Act requires that states have in place procedures to ensure that “homeless children and youths who meet the relevant eligibility criteria do not face barriers to accessing academic and extracurricular activities….” The statute specifically states that students must meet relevant eligibility criteria, such as maintaining a certain G.P.A., regular attendance, and the requisite skill level in the sport or activity.

In light of all this, the crux of the issue is whether the reason for the 19-year-old McKinney-Vento student’s participation in athletics is directly related to the student’s homelessness. If that is the case, the student should be allowed to participate. In fact there’s a case from Oregon about a 19-year old student who wanted to participate in track and chorus, was denied due to age, and then won at a hearing because his homelessness contributed to him not being able to make regular academic progress and graduate on-time.  (He later went on to get a singing scholarship to college!)

We would suggest attaching a letter to the athletic waiver form with an explanation of your role as the liaison, your determination of homelessness, and how homelessness has prevented the student from making academic progress (problems with attendance, moving around, etc.).

You follow the McKinney-Vento Act and enroll immediately. When two statutes conflict with each other, Article VI, Clause 2 of the US Constitution (commonly known as the Supremacy Clause) requires that federal law be followed.  That constitutional language is:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

In this case, the state law is superseded by the McKinney-Vento Act, and the child must be enrolled in school immediately.  The McKinney-Vento Act is clear:

“(C) IMMEDIATE ENROLLMENT-

  • IN GENERAL.– The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth—is unable to produce records normally required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation;”

Yes. For the free meals issue, look at page 6 of this brief.

For immediate enrollment, look at pages 4 and 5 of this brief.

Article VI, Clause 2 of the U.S. Constitution (commonly known as the Supremacy Clause) requires that federal law be followed. That constitutional language is:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

In this case, the conflicting state law is superseded by the McKinney-Vento Act, and the child must be enrolled in school immediately. As you know, the McKinney-Vento Act is clear:

“(C) IMMEDIATE ENROLLMENT-

(i) IN GENERAL.– The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth—is unable to produce records normally required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation;” 42 USC 11432(g)(3)(C).

Yes, you are correct. The applicable language from the McKinney-Vento Act, as amended by ESSA, states:

“(C) IMMEDIATE ENROLLMENT-

(i) IN GENERAL.– The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth—

(I) is unable to produce records normally required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation; or

(II) has missed application or enrollment deadlines during any period of homelessness.

The citation is 42 US Code section 11432(g)(3)(C). So if this student is appropriate for the magnet school, and the school has space, missing the lottery cannot be a barrier to his immediate enrollment.

It doesn’t fit, and the federal law supersedes your state law. This state statute conflicts with the McKinney-Vento Act. According to the US Constitution, Article VI, Clause 2, federal laws take precedence over state laws when there is a conflict. Therefore, schools in your state must follow the federal McKinney-Vento Act over and above any state laws.

As you know, the McKinney-Vento Act requires both state and local educational agencies to review and revise policies to remove barriers to the enrollment and retention of homeless children in school. 42 USC §11432(g)(1)(I). The Act also requires schools to enroll homeless children immediately, even if they lack records of immunization and other required health records. 42 USC §11432(g)(3)(C)(i)(I).

While this law and schools that follow it are providing immediate enrollment, they then create a barrier to enrollment and retention by suspending the child after five days. That violates the McKinney-Vento Act. Under the US Constitution, the school must follow federal law, not state law.

The particular language in this enrollment affidavit creates a barrier to the immediate enrollment of McKinney-Vento students. The McKinney-Vento Act requires immediate enrollment and revision of any policies that create a barrier to enrollment. 42 USC 11432(g)(1)(I). Families experiencing homelessness often have no way to know where they will reside from one night to the next. They often cannot express an intent to remain in a particular school district, and such an intent is not a requirement for immediate enrollment. The school district must provide immediate enrollment “in any public school that non homeless students who live in the attendance area in which the child or youth is actually living are eligible to attend.” 42 USC 11432(g)(3)(A)(ii). This refers to where the child or youth “is actually living” at the time of enrollment. Where the family may live in the future or where they might intend to settle does not affect their right to immediate enrollment. In addition, the affidavit appears to require the signature of a parent or legal guardian. That creates a barrier to the immediate enrollment of unaccompanied homeless youth. The McKinney-Vento Act requires the removal of barriers related to guardianship issues. 42 USC 11432(g)(1)(H)(iv). The school cannot require the signature of a parent or legal guardian to enroll an unaccompanied youth. Youth can enroll themselves, or an administrator at the school can sign-off on enrollment.

Yes. You must immediately enroll students experiencing homelessness, even if they lack identification. The legal citation in the McKinney-Vento Act is 42 U.S.C. §11432(g)(3)(C). The next step, of course, is to work with the family to get identification, but they should be in school, attending, while that is happening. It might re-assure enrollment staff to let them know that you do work with families to obtain documentation, so that they know that it is forthcoming, with your assistance.

Yes, you did the right thing. McKinney-Vento requires immediate enrollment in school for all youth experiencing homelessness, including unaccompanied homeless youth. The law also directs schools to review and revise policies that act as barriers to enrollment, specifically those barriers related to guardianship. You are following federal law, and that this specific issue has occurred in other states, with the rights of the youth upheld. Our job is to ensure that youth are in school, so that education is not disrupted during family struggles.

The mother still retains her parental rights, and she can access educational records and otherwise be involved with the student’s education. But as for other issues within the family, it is great to refer her to community services or other resources that can help the family with those issues. However, you are correct that the school’s legal obligation is to educate in compliance with the MV Act, and that is what you are doing.

Here are some legal citations to help:

  • The McKinney-Vento Act requires schools to enroll students experiencing homelessness immediately, even if the student is unable to provide documents that are typically required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation. 42 U.S.C. §11432(g)(3)(C).
  • Enroll means permitting the student to attend classes and participate fully in school activities. 42 U.S.C. §11434A(1).
  • Lack of a legal guardian or guardianship documents cannot delay or prevent the enrollment of an unaccompanied youth. 42 U.S.C. §§11432(g)(3)(C), (g)(1)(H)(iv).
  • The McKinney-Vento Act requires states and LEAs to eliminate barriers to identification, enrollment and retention and to enroll unaccompanied youth in school immediately. 42 U.S.C. §§11432(g)(1)(I), (g)(7).