On July 27, 2016, the United States Department of Education (“Department of Education”) released a dear colleague letter (DCL) and a non-regulatory guidance document (“Guidance Document”) discussing school districts’ obligations under the McKinney-Vento Homeless Assistance Act (“McKinney-Vento Act”) as amended by the Every Student Succeeds Act (ESSA). In an accompanying fact sheet, the Department of Education points out that the number of homeless students enrolled in public schools during the 2013-2014 school was more than 1.3 million, nearly double the number of homeless students enrolled in public schools in the 2006-2007 school year.
The ESSA amended the McKinney-Vento Act in several ways. While many of the changes affect efforts at the state level,[i] some of the changes, most of which are effective October 1, 2016, will place new requirements on school districts as follows.
Under the ESSA amendments to the McKinney-Vento Act, district liaisons for homeless children and youths:
- Must ensure that school personnel providing services under the McKinney-Vento Act receive proper professional development and other support;
- Must ensure that unaccompanied homeless students:
- Are enrolled in school,
- Have opportunities to meet the same challenging academic standards as other students,
- Are informed of their status as independent students under the Higher Education Act of 1965 and that they may obtain assistance from the liaison;
- Must ensure that public notice of homeless students’ educational rights is disseminated in locations frequented by parents or guardians of homeless students, and unaccompanied homeless students, including schools, shelters, public libraries, and soup kitchens; and
- May affirm that a student who is eligible for and participating in a district program, or the immediate family of such student, is eligible for homeless assistance programs so long as the liaison has received appropriate training.
ESSA has modified the requirements governing the best interest of the student determinations to include the following:
- The district must presume that keeping a homeless student in the school of origin is in the student’s best interest unless doing so is contrary to the request of the student’s parent or guardian, or (in the case of an unaccompanied student) the student;
- The district must consider student-centered factors related to a student’s best interest, giving priority to the request of the student’s parent or guardian, or (in the case of an unaccompanied student) the student; and
- If the district determines that it is not in the student’s best interest to attend the school of origin, or the school requested by the student’s parent or guardian or unaccompanied student, the district must provide a written explanation for the reasons for its determination.
The ESSA requires that a school selected based on a homeless student’s best interest immediately enroll such student, even if the student has missed application or enrollment deadlines.
The ESSA expands enrollment dispute procedures to encompass eligibility and has sought to clarify the protections the procedures provide. If a dispute arises, the district in which enrollment is sought must immediately enroll the student pending the outcome of the dispute.
School of Origin
The ESSA clarifies that the “school of origin” includes preschools and, when a student completes the final grade level served by the school of origin, it also includes the designated receiving school at the next grade level for all feeder schools.
The ESSA modifies the McKinney-Vento Act to specify that information about a homeless student’s living situation shall be treated as a student education record and shall not be deemed directory information.
Stability of Students in Foster Care
The ESSA includes new provisions for ensuring the educational stability of children in foster care under Title I, Part A, which are discussed in detail in a separate non-regulatory guidance document released June 23, 2016, a full discussion of which is beyond the scope of this post. Notably, effective December 1, 2016, for all but a few states, the McKinney-Vento Act no longer includes children who are “awaiting foster care placement” in the definition of “homeless children and youths.”
The DCL, Guidance Document, and fact sheet are all available through the Department of Education website at www.ed.gov.
 See Notice of Regulatory Changes published in the Federal Register