United States: See You In Court! - October 2019

Last Updated: October 9 2019
Article by Thomas B. Mooney

Patty Parent, a single mother, came to the office at Acorn Elementary School at the beginning of the school year, asking that the office change the address for her two children.  However, when she gave her mother’s address in a neighboring school district, the administrative assistant told her that her children could no longer attend Acorn Elementary Schools because they are now apparently living in another town.  Patty Parent disagreed, however, claiming that she and her children are now homeless.  “This is above my pay grade,” the administrative assistant responded, and she told Patty Parent to go talk to the Superintendent.

Patty Parent promptly met with Mr. Superintendent, and she told a sad story.  She and her children had been living in an apartment in Nutmeg, but she had been unable to keep up with her rent payments and she was evicted.  As a result, she moved in with her mother in a neighboring town.  Patty Parent then reiterated her claim that she and her children are now homeless, and she asked that her children be permitted to continue in the Nutmeg Public Schools.  Mr. Superintendent listened carefully to Patty, but he denied her request.  “I appreciate your continued interest in the Nutmeg Public Schools,” he began, “but you have moved to another school district.  My hands are tied, and you must withdraw your children from our schools forthwith.”

Patty told Mr. Superintendent that she could not and would not withdraw her children from the Nutmeg Public Schools.  But Mr. Superintendent was unmoved.  He gave Patty a week to enroll her children in the district where she, her children and her mother are living, but he also informed her in writing that she has the right to request a hearing if she disagrees with his decision.

Patty Parent did just that.  After receiving the request, Mr. Superintendent described the situation to Mr. Chairperson in detail.  He shared his view that Patty had changed her residence, but he asked Mr. Chairman to schedule a hearing anyway. 

When Mr. Chairperson sent out an email describing the situation, the other Board members were intrigued, and they all decided to attend the hearing.  Board member Mal Content caused quite a stir, however, at the beginning of the hearing.  After he was recognized, Mal dramatically noted that veteran Board member Bob Bombast is always complaining about people sneaking into Nutmeg to attend school.  He then moved that the Board ask Bob to recuse himself from hearing the case, stating, “Bob, given your complaints about students enrolling in Nutmeg, you are clearly biased.  We need to be fair here, and I don’t think you can be.” 

Bob was surprised and angered at Mal’s unexpected action.  He surmised that Mal’s motion was just a cheap shot in an election year, and Bob responded curtly that he was no more biased than Mal is and would not be recusing himself.

Given Bob’s history of complaints about ineligible students attending the Nutmeg Public Schools, should he recuse himself?  And is it possible that Patty Parent can establish that her children are homeless?

*         *         *

Taking the second question first, it depends on the specific facts.  Since 1987, federal law has provided special rights to children who are homeless.  The McKinney-Vento Homeless Assistance Act confers on homeless children a number of special rights.  A primary goal of the law is to maintain educational continuity for a homeless student – the school he or she attends may be one of the few constants in the child’s life.  Therefore, when a child becomes homeless, he or she is entitled to continue to attend the school he or she was attending when he or she became homeless (the “school of origin”) if feasible unless such attendance is against the wishes of the parent or guardian or otherwise not in the child’s “best interest.”  There is no specific time limit as to how long a student may be considered homeless.  Moreover, if a student finds permanent housing and is no longer homeless, he or she can continue to attend the school of origin for the remainder of that school year, again in the interest of continuity of education services.

Homeless students have other rights as well.  When a homeless child seeks to enroll in a school, school officials must admit the student immediately, without waiting for educational records or requiring proof of immunization.  The responsible school district (either the district in which the school of origin is located, or a new school district at which the student presents him- or herself) must also provide transportation to and from school back to the student’s temporary residence unless such transportation is against the child’s best interest.  The cost of such transportation, however, may be shared with the district in which the homeless child then temporarily resides.

Given these rights, the determination of whether a child is homeless is crucial.  The statute defines “homeless children and youths” as “individuals who lack a fixed, regular, and adequate nighttime residence,” and it gives a number of examples, including “children who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.” 

Here, the question will be whether Patty’s children lack a “fixed, regular and adequate nighttime residence,” or whether they are not homeless but rather now living with their grandmother in the new school district.  In this regard, we note that the General Assembly amended the school accommodations statute this year to shift the burden in cases where homelessness is alleged to the school district to show that the student is not homeless.  Public Act 19-179.  That will be a challenge in some cases.

Two other matters here warrant mention.  First, Mal’s surprise attack on Bob is without merit.  To be sure, Patty Parent is entitled to due process as the Board decides whether her children may continue to attend the Nutmeg Public Schools, and a key element of due process is a decision by an impartial decision-maker.  However, Bob is free to express his opinions on general matters.  As long as Bob can consider this specific case impartially based on the information presented at the hearing (a decision that Bob himself must make), he will be able to hear the case.

By contrast, Mr. Superintendent should not have shared his perspective and the details of the case with the Board members.  Such ex parte communication is inappropriate because of the board member’s role as an impartial judge.  When board members must decide on the rights of students or teachers (e.g., in expulsion hearings or tenure hearings respectively), the superintendent must refrain from discussing the details with the board members in advance of the hearing, and he or she must make his or her case at the hearing itself.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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