United States District Court, E.D. New York
October 23, 2004.
NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, R.I., individually, and as parent and natural guardian of A.B., a minor child, M.W., individually, and as parent and guardian of Da.W., Di.W., Dq.W., T.H. and S.J., minor children, M.K., individually, and as parent and natural guardian of S.P., a minor child, T.K., and N.K., individually, and as a parent and natural guardian of K.K., on behalf of themselves and all those similarly situated, R.C., individually, and as parent and natural guardian of J.C., and on behalf of themselves and all those similarly situated, C.T., individually and as grand parent and natural guardian of M.W., D.M., individually and as parent and natural guardian of M.M., Plaintiffs,
STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT, RICHARD P. MILLS, as Commissioner of Education of the State of New York; SHEILA EVANS-TRANUMN, as Associate Commissioner of Education of the State of New York; PATRICIA McGUIRK, as Program Manager for the Homeless of the New York State Education Department; NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, ROBERT DOAR, as Acting Commissioner of the New York State Office of Temporary and Disability Assistance, (caption continues on next page) SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, JANET DEMARZO, as Commissioner of the Suffolk County Department of Social Services, DAN HICKEY, as Associate Commissioner of the Suffolk County Department of Social Services, and JOHN DOE, School Districts 1-10, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This action, commenced by parents of homeless children that are
residing in Suffolk County, New York, seeks enforcement of the
McKinney-Vento Act, 42 U.S.C. §§ 11431-35, and the Equal
Protection Clause of the United States Constitution. Presently
before the Court are two motions: (1) a motion by the defendants
to dismiss the action; and (2) a motion by the plaintiffs,
pursuant to Rule 23 of the Federal Rules of Civil Procedure
("Fed.R. Civ. P."), for class certification.
The plaintiffs in this action are homeless children and their
parents living in Suffolk County, New York. They seek declaratory
and injunctive relief against the State of New York, New York
State Education Department, Richard P. Mills, as Commissioner of
Education of the State of New York, Sheila Evans-Tranumn, as
Associate Commissioner of Education of the State of New York,
Patricia Mcguirk, as Program Manager for the Homeless of the New
York State Education Department, New York State Office of
Temporary and Disability Assistance, Robert Doar, as Acting
Commissioner of the New York State Office of Temporary and
Disability Assistance, Suffolk County Department of Social
Services, Janet Demarzo, as Commissioner of the Suffolk County
Department of Social Services, Dan Hickey, as Associate
Commissioner of the Suffolk County Department of Social Services
and John Doe, School Districts 1-10, (collectively the
"Defendants"), for alleged violations of the McKinney-Vento Act
("McKinney Act") and the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution.
Plaintiffs seek to invoke the provisions of 42 U.S.C. § 1983 to
enforce the terms of the McKinney Act and the Constitution.
The Plaintiffs allege that the Defendants are responsible for a
systematic failure to provide homeless children in Suffolk
County, New York, access to education by failing to: (1) locate
and ensure enrollment of homeless children; (2) provide
uninterrupted transportation to enable homeless children to
attend school; (3) provide immediate enrollment to homeless
children upon becoming homeless; and (4) provide education
services that are comparable to the services that nonhomeless
children receive. The Plaintiffs allege that homeless children
are entitled to these educational services through the provisions
of the McKinney Act and the Constitution.
The proposed class representatives are six homeless families
with school-age children in Suffolk County who all allege that
they have faced obstacles in maintaining enrollment in school.
From the allegations in the complaint, a common theme emerges.
All of the children at some time became homeless and, as a
consequence of their parents' misfortune, missed weeks and
sometimes months of school due to failures in transportation or
enrollment. For example, the W. family has four school-age
children and one pre-school age child who was denied access to
Head Start. After becoming homeless, the family moved from
shelter to shelter, and with each move, transportation to and
from school stopped, thus causing the children to miss school for
weeks at a time. Another plaintiff, S.P., was out of school for
more than two months while various agencies tried to determine
who should provide transportation for the child. In another
example, A.B., was attending school in the Middle Country Central
School District until her family was placed in emergency housing
in Copaigue. Both school districts refused to admit the child
Middle Country insisted she attend the Copaigue School District
while Copaigue declined to admit A.B. without the proper
paperwork. As a result, A.B. missed months of school.
Because a motion to dismiss is potentially dispositive, the
Court will discuss that motion first, followed by the motion for
A. Motion to Dismiss
A court may grant a Rule 12(b)(6) motion to dismiss for failure
to state a claim only when "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.'" Phillip v. University of
Rochester, 316 F.3d 291, 293 (2d Cir. 2003) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80
(1957)); Kaltman-Glasel v. Dooley, 156 F. Supp. 2d 225, 226 (D.
Conn. 2001). The function of the Court is not to weigh the
evidence that may be presented at trial but instead the Court
must determine if the claims are legally sufficient. Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985); see also King v.
Simpson, 189 F.3d 284, 287 (2d Cir. 1999). The Court must
construe all reasonable inferences in favor of the plaintiff and
accept the allegations contained in the claims as true. See
Desiderio v. National Ass'n of Sec. Dealers, Inc.,
191 F.3d 198, 202 (2d Cir. 1999).
In deciding a Rule 12(b)(6) motion a court may consider "only
the facts alleged in the pleadings, documents attached as
exhibits or incorporated by reference in the pleadings and
matters of which judicial notice may be taken. . . ." Samuels v.
Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
Therefore, a court must evaluate whether the allegations in the
complaint can sustain a cause of action under applicable law, and
should only grant the motion to dismiss if the plaintiffs can
prove no set of facts in support of their claims that would
entitle them to relief. See Swierkiewicz v. Sorema, N.A.,
534 U.S. 506, 122 S. Ct. 992, 998, 152 L. Ed. 2d 1 (2002); Grandon
v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998).
Actions may be brought pursuant to section 1983 against state
actors to enforce rights created by federal statutes and the
Constitution. Maine v. Thiboutot, 448 U.S. 1, 4,
100 S. Ct. 2502, 2502, 65 L. Ed. 2d 555 (1980). In order to seek redress
through section 1983, "a plaintiff must assert the violation of a
federal right, not merely a violation of federal law."
Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353,
1359, 137 L. Ed. 2d 569 (1997). Here, the Plaintiffs seek to
redress the right of homeless children and youths to have access
to the same educational services that are available to children
who are not homeless. The Plaintiffs allege that this right is
found in the McKinney Act and the Equal Protection Clause of the
Fourteenth Amendment to the Constitution. Therefore, the Court
must examine whether that right does exists under the McKinney
Act or the Constitution.
1. The McKinney-Vento Act
The McKinney-Vento Act was enacted in 1987 "to provide urgently
needed assistance to protect and improve the lives and safety of
the homeless. . . ." Pub.L. No. 100-77, 101 Stat. 525 (codified
at 42 U.S.C. § 11431(1988)). The Act required states to assure
that each child of a homeless individual and each homeless youth
had access to a free and appropriate public education.
42 U.S.C. § 11431. Under the Act, Congress authorized the Secretary of
Education to grant funds to the States that comply with the
provisions of the Act. Id. § 11432.
In 2002, the McKinney Act was reauthorized as part of the No
Child Left Behind Act (NCLBA). Pub.L. No. 107-110, 115 Stat.
1989. As part of the reauthorization, the McKinney Act underwent
a general revision, but the purpose of the Act remained to
"ensure that each child of a homeless individual and each
homeless youth has equal access to the same free, appropriate
public education, including a public preschool education, as
provided to other children and youths." 42 U.S.C. § 11431 (2004).
Congress stated that "[h]omelessness alone is not sufficient
reason to separate students from the mainstream school
environment." Id. Thus, "[h]omeless children and youths should
have access to the education and other services" that are needed
to meet "student academic achievement standards to which all
students are held." Id.
A court's role in determining whether personal rights exist in
the section 1983 context is to initially determine whether
Congress intended to confer individual rights upon a class of
persons. Gonzaga University v. Doe, 536 U.S. 273, 285,
122 S. Ct. 2268, 2276, 153 L. Ed.2d 309 (2002). "For a statute to create
such private rights, its text must be `phrased in terms of the
persons benefitted.'" Id. at 284, 122 S. Ct. at 2275 (quoting
Cannon v. University of Chicago, 441 U.S. 677, 692, n. 13,
99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979)); accord Rabin v.
Wilson-Coker, 362 F.3d 190 (2d Cir. 2004). In addition, a court
must "determine if Congress foreclosed a § 1983 remedy either
expressly or impliedly through the creation of a comprehensive
administrative enforcement scheme." Taylor v. Vermont Dep't of
Educ., 313 F.3d 768, 783 (2d Cir. 2002) (citing Blessing,
520 U.S. at 342).
Legislation enacted pursuant to the spending authority of
Congress must clearly manifest an "unambiguous intent" to confer
individual rights. Gonzaga, 536 U.S. at 280,
122 S. Ct. at 2273. This standard recognizes that the typical remedy for state
noncompliance with federal spending legislation is action by the
Federal Government to terminate the funds, rather than a private
cause of action for noncompliance. Pennhurst State School and
Hospital v. Halderman, 451 U.S. 1, 28, 101 S. Ct. 1531,
67 L.Ed. 2d 694 (1981). Thus, a significant part of a court's inquiry
is whether the federal agency charged with administering the
funds has procedures by which individuals can complain about
alleged failures by the state entrusted with those funds. See
Gonzaga, 536 U.S. at 280, 122 S. Ct. at 2273.
In Gonzaga, the Supreme Court recently found that a provision
in the Family Educational Rights and Privacy Act (FERPA) did not
create individual rights because the focus of the statute was
"two steps removed from the interests of individual students and
parents." Id. at 287, 122 S. Ct at 2277; see
20 U.S.C. § 1232g(b)(1). In other words, "the statute only forbade the
government from funding schools that demonstrated a `policy or
practice' of disclosing student records." Rabin v.
Wilson-Coker, 362 F.3d 190, 201 (2d Cir. 2004) (quoting
Gonzaga, 536 U.S. at 287, 122 S. Ct. at 2277).
The Court in Gonzaga explained that FERPA focuses on the
aggregate impact of releasing educational records, rather than
being concerned with "whether the needs of any particular person
have been satisfied." Id. at 288. The Court noted that this was
evident by the fact that recipient institutions need only "comply
substantially" to receive funding. Id. at 288,
122 S. Ct. at 2278; see also Suter v. Artist M., 503 U.S. 347, 358,
112 S. Ct 1360, 1367, 118 L. Ed. 2d 1 (1992) (holding that no
enforceable right under the Adoption Assistance Act of 1980,
which required States receiving funds to have a "plan" to make
"reasonable efforts" to keep children out of foster homes).
The Court in Gonzaga recognized that in the past, spending
legislation was held to confer individually enforceable rights if
the provision was focused on an individual class of persons and
imposed a mandatory obligation on the State. For example, in
Wright v. Roanoke Redevelopment and Housing Authority,
479 U.S. 418, 107 S. Ct. 766, 93 L.Ed.2d 781 (1987), the Court held that a
provision of the Public Housing Act conferred individual rights
on the ground that the statute unambiguously imposed a "mandatory
[rent] limitation [on States, which] focus[ed] on the individual
family and its income." Id. at 430, 107 S. Ct. at 773-74. In
Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 522,
110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990), the Court held that a
reimbursement provision of the Medicare Act conferred individual
rights, on the ground that the statute "impose[d] a binding
obligation on States participating in the Medicaid program to
adopt reasonable and adequate rates." Wilder, 496 U.S. at 512,
110 S. Ct. at 2518-19.
In both Wilder and Wright, "Congress left no doubt of its
intent for private enforcement" because the statutes: (1) imposed
a mandatory requirement on the States; (2) provided for specific
entitlements; (3) conferred entitlements on specific individuals,
and (4) did not provide individuals with sufficient
administrative means of enforcing the requirement against States
that failed to comply. See Gonzaga, 536 U.S. at 280-81,
122 S. Ct. at 2274.
In light of these guidelines, it is clear that Congress
intended that the McKinney Act confer individually enforceable
rights. Indeed, the Court of Appeals for the District of Columbia
has held that the McKinney Act confers enforceable rights on
homeless children. Lampkin v. District of Columbia,
27 F.3d 605, 611 (D.C. Cir. 1994). First, the Act imposes a mandatory
rather than horatory requirement on the State. The Act states
that "[h]omeless children and youths should have access to the
education and other services that such children and youths
need. . . ." 42 U.S.C. § 11431 (emphasis added). In order to
provide such services, States, including New York, are granted
funds which shall be used for the following:
(1) To carry out the policies set forth in section
11431 of this title in the State.
(2) To provide activities for, and services to,
homeless children, including preschool-aged homeless
children, and youths that enable such children and
youths to enroll in, attend, and succeed in school,
or, if appropriate, in preschool programs.
(3) To establish or designate an Office of
Coordinator for Education of Homeless Children and
Youths in the State educational agency in accordance
with subsection (f) of this section.
(4) To prepare and carry out the State plan described
in subsection (g) of this section.
(5) To develop and implement professional development
programs for school personnel to heighten their
awareness of, and capacity to respond to, specific
problems in the education of homeless children and
42 U.S.C.A. § 11432. These requirements are not optional and
"substantial compliance" or "reasonable efforts" is insufficient
under the Act.
Second, the Act provides for specific entitlements by directing
local educational agencies to carry out specific activities. In
particular, the local educational agency is required to:
(i) continue the child's or youth's education in the
school of origin for the duration of homelessness
(I) in any case in which a family becomes homeless
between academic years or during an academic year; or
(II) for the remainder of the academic year, if the
child or youth becomes permanently housed during an
academic year; or
(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 U.S.C.A. §§ 11432(g)(3)(A). In addition, the Act specifically
directs that local educational agencies
(i) 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, medical records,
proof of residency, or other documentation.
(ii) The enrolling school shall immediately contact
the school last attended by the child or youth to
obtain relevant academic and other records.
(iii) If the child or youth needs to obtain
immunizations, or immunization or medical records,
the enrolling school shall immediately refer the
parent or guardian of the child or youth to the local
educational agency liaison designated under paragraph
(1)(J)(ii), who shall assist in obtaining necessary
immunizations, or immunization or medical
records. . . .
42 U.S.C.A. § 11432(g)(3)(C). Thus, unlike other spending
provisions that do not confer individually enforceable rights,
"the McKinney Act not only inform[s] the State in great detail on
how its plan is to be implemented, [it] impose[s] obligations
that are independent of the plan." Lampkin, at 611.
Third, the entitlements conferred under the Act are directed at
specific individuals. Statutes that focus on specific individuals
rather than policies or practices indicate Congressional intent
to confer individually enforceable rights. Gonzaga,
536 U.S. at 287, 122 S. Ct. at 2277 (stating that FERPA's provisions were
"two steps removed from the interests of individuals . . .");
see also Rabin v. Wilson-Coker, 362 F.3d 190, 201 (2d Cir.
2004) (explaining that "the statute only forbade the government
from funding schools that demonstrated a `policy or practice' of
disclosing student records"). By directing local educational
agencies, rather than recommending statewide policies, the Act
confers entitlements to each homeless child, including: (1) the
right of the parent or guardian to choose the school of origin or
the school where students enroll in the location; (2) immediate
assistance in obtaining immunizations or medical records
necessary for enrolment in the new school; (3) immediate
enrollment in the school in which enrollment is sought; (4)
comparable transportation services to and from school. See
42 U.S.C. § 11432(g)(3).
Finally, the Act provides no "mechanisms for the administrative
enforcement of the beneficiaries' rights." Lampkin,
27 F.3d at 611. Under the Act, the Secretary of Education is authorized to
"make grants" and "review" state plans, but is not authorized to
take any enforcement for violations of the Act.
42 U.S.C. § 11434. In Gonzaga, the Court recognized that Congress chose to
provide an enforcement mechanism in FERPA for investigating and
adjudicating violations. Gonzaga, 536 U.S. at 288,
122 S. Ct. at 2278. The Court stated that "[t]hese administrative procedures
squarely distinguish this case from Wright and Wilder, where
an aggrieved individual lacked any federal review mechanism . . .
and further counsel against our finding a congressional intent to
create individually enforceable private rights." Id. at 291,
122 S. Ct. at 2279. Under the McKinney Act, an aggrieved
individual has no recourse against the federal agency that is
granting the funds, which strongly leads to the conclusion that
Congress intended to provide an individual right enforceable
under § 1983.
Defendants reliance on Association of Community Organizations
for Reform Now v. New York City Dept. of Educ., 269 F. Supp.2d 338,
339 (S.D.N.Y. 2003) ("ACORN") is misplaced. That case held
that certain provisions of the No Child Left Behind Act did not
create individual rights enforceable under section 1983. Although
the McKinney Act was reauthorized as part of the NCLBA, the
McKinney Act pre-dated the NCLBA and differs in several important
First, the NCLBA has an aggregate focus in that it is a
comprehensive education reform statute aimed at strengthening
schools by holding States and local education agencies
accountable. See id. at 340. In contrast, the purpose of the
McKinney Act is to ensure that each homeless child is given an
equal opportunity to access the educational system that the NCLBA
strives to enhance.
Second, although both laws call for the State to adopt and
implement a plan, the focus of the NCLBA is whether local
educational agencies are maintaining "adequate yearly progress."
20 U.S.C. § 6316(a)(1)(A); see ACORN, 269 F. Supp. 2d at 344
("The provisions of the NCLBA . . . focus on two entities
states and local educational agencies. . . ."). On the other
hand, the McKinney Act specifically focuses on how to ensure that
each homeless child receives the same opportunity and access to
education as a nonhomeless child. Congress did not include in the
McKinney Act that "adequate yearly progress" would be sufficient.
The Act specifically provides that homeless children "should have
access to education and other services" and requires local
educational agencies to ensure that children not miss school due
to the misfortunes of their parents. 42 U.S.C. §§ 11431(4) &
Finally, the NCLBA expressly gives the Secretary of Education
authority to impose penalties for noncompliance.
20 U.S.C. § 6311(g)(2). Under the NCLBA, "there are remedies available to the
Secretary of Education to take action against a federal fund
recipient who fails to comply with legal requirements imposed by
a federal education statute. . . ." ACORN, 269 F. Supp. 2d at 342.
This is in stark contrast to the McKinney Act which lacks
any federal enforcement provision or individual remedy.
Thus, the McKinney Act, as previously held by Lampkin,
evidences a clear and unambiguous intent of Congress to create
individually enforceable rights. The Act provides mandatory
entitlements to homeless children by clear and precise direction
to state and local officials. The statute obligates State and
local agencies to perform in a specific way to ensure that
homeless children are provided an education on par with that of
nonhomeless children. Finally, the lack of an enforcement scheme
indicates that Congress intended to confer rights on a particular
class of persons. Consequently, the Plaintiffs can maintain an
action under section 1983 to enforce provisions of the McKinney
2. The Equal Protection Clause
The Fourteenth Amendment of the United States Constitution
guarantees that no state shall "deny to any person within its
jurisdiction the equal protection of the laws." This is
"essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313
(1985). Plaintiffs in this case claim that homeless children in
Suffolk County are not receiving the same access to public school
education enjoyed by nonhomeless children.
Discriminatory treatment by the government is sufficient to
trigger assessment under the Equal Protection Clause. See
Lewis v. Thompson, 252 F.3d 567, 590 (2d Cir. 2001). If
government action interferes with a "fundamental right" or
discriminates against a "suspect class," it must be reviewed
using the strict scrutiny analysis. Absent these circumstances,
government action will ordinarily survive an equal protection
challenge so long as the action is rationally related to a
legitimate governmental purpose. Plyler v. Doe, 457 U.S. 202,
216-17, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). Further, in
Plyler, the Supreme Court acknowledged that although public
education is not a fundamental right granted to individuals by
the Constitution, neither is it "merely some governmental
`benefit' indistinguishable from other forms of social welfare
legislation." Id. at 221. The Court reasoned that education was
so important to the American way of life and to the function of
state and local governments that any denial of education must be
justified by some "substantial goal" of the State. Id. at
223-24. This analysis amounts to a "heightened" or "intermediate
scrutiny" with respect to government action that results in
Since Plyler, the Supreme Court has declined to extend
heightened scrutiny in regard to education beyond the "unique
circumstances" of Plyler. See Kadrmas v. Dickinson Public
Schools, 487 U.S. 450, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988)
(holding that a public school district's charging of a user fee
for bus transportation to school did not violate the Equal
Protection Clause). However, the Supreme Court implied that
statutes which create circumstances that involve the penalization
of children for the "illegal conduct of their parents" and risk
significant and enduring adverse consequences to children should
be reviewed using the Plyler rationale. Id. Indeed, the
Second Circuit applied the rationale of Plyler when it ruled
that the denial of eligibility for welfare benefits to children
solely because of their mothers' alien status violated the Equal
Protection Clause. Lewis v. Thompson, 252 F.3d 567, 591 (2d
Cir. 2001). In determining the whether to apply heightened
scrutiny, the court stated that the denial of public education
would present an even more compelling case for heightened
scrutiny than the postponement of welfare benefits.
In the instant case, the circumstances are significantly
similar to those in Plyler. The Plaintiffs' contend that
homeless children in Suffolk Country are not receiving the same
access to public school education enjoyed by other children.
Thus, taking the Plaintiffs' factual allegations as true, the
Defendants appear to be penalizing these homeless children
because of the misfortunes or misdeeds of their parents. Further,
in exacting the penalty, the State Defendants are risking
significant and enduring adverse consequences to the children by
denying them access to a public education. On its face, the
Plaintiffs' warrants the "heightened scrutiny" standard set forth
Under heightened scrutiny review, the Plaintiffs are not
required to negate any reasonable conceivable set of facts that
could provide any rational basis for the classification of the
children, as required when utilizing rational basis review. Bd.
of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367,
121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). In fact, the Defendants failed
to assert even one rational basis for the homeless children
transportation procedures currently in place in Suffolk County.
Therefore, Plaintiffs have met their burden of stating a claim
under the Equal Protection Clause, which may be enforced under
section 1983. As such, the Defendants' motion to dismiss
Planitiffs' cause of action for failing to assert a federal right
under section 1983 is denied.
B. Class Certification
In determining whether a putative class qualifies for
certification, the only question is whether the requirements of
Fed.R. Civ. P. 23 have been met. See Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 177-78, 40 L. Ed. 2d 732,
94 S. Ct. 2140 (1974). The Court assumes the allegations in the complaint
to be true, and the burden is on the plaintiff to prove that the
putative class meets the four threshold requirements of Rule
23(a) and satisfies the requirements of at least one of the
categories enumerated in Rule 23(b). See In re Visa
Check/Mastermoney Antitrust Litig., 280 F.3d 124, 133 (2d Cir.
2001); Caridad v. Metro-North Commuter RR, 191 F.3d 283, 291
(2d Cir. 1999); Marisol A. v. Giuliani, 126 F.3d 372, 374 (2d
Cir. 1997); Vengurlekar v. Silverline Techs., Ltd.,
220 F.R.D. 222, 226 (S.D.N.Y. 2003).
In deciding certification, courts must take a liberal rather
than a restrictive approach in determining whether the plaintiff
satisfies these requirements and may exercise broad discretion in
weighing the propriety of a putative class. See In re NASDAQ
Market Makers Antitrust Litig., 169 F.R.D. 493, 504 (S.D.N.Y.
1996) (citing Korn v. Franchard Corp., 456 F.2d 1206, 1208-09
(2d Cir. 1972)); see also Pecere v. Empire Blue Cross and Blue
Shield, 194 F.R.D. 66, 69 (E.D.N.Y May 2000). Whether the
plaintiffs have stated a cause of action or will prevail on the
merits is not a consideration for resolution of a motion for
class certification. See Vengurlekar, 220 F.R.D. at 226.
While the district court must engage in a "rigorous analysis" to
establish whether the plaintiff has met its burden of proof as to
certification, Caridad, 191 F.3d at 291, such a determination
must not evolve into a "preliminary inquiry into the merits."
Eisen., 417 U.S. at 177.
Plaintiffs seek certification of a class defined as follows:
Class A: All school-aged children (as defined by
New York State Education Law) who, on or after
September 1, 2001: (1) have lived, are living or will
live in Suffolk County, New York; and (2) during such
period have been, are, or will be "homeless" as
defined in the McKinney-Vento Act,
42 U.S.C. § 11434A.
Class B: All parents, guardians or persons in a
parental relationship for children in Class A, who,
on or after September 1, 2001: (1) have lived, are
living or will live in Suffolk County, New York; and
(2) during such period have been, are, or will be
"homeless" as defined in the McKinney-Vento Act,
42 U.S.C. § 11434A.
Pls.' Am. Compl. ¶ 117.
In support of class certification, the Plaintiffs set forth
reports, which lead to the inference that missed school days are
not unique to the Plaintiffs in this action. The 2004-2006
Education of Homeless Children and Youth Program Report describes
how pervasive the problem is:
There are some school districts that have not grasped
and/or acknowledged the legality of the [McKinney
Act]. Consequently the gaps that exist are the same
as the gaps that existed prior to the authorization
of the McKinney-Vento Act due in part to the
historical rise in the number of families affected by
homelessness in Suffolk County. These gaps include:
denials of registration/immediate attendance for
school due to dispute of "homeless" declaration, lack
of transportation back to the district of last
attendance, inappropriate placement, no placement,
lengthy gaps in the provision of services and/or
placement, unfair disciplinary actions and poor, or
no, access to support services. These gaps are
reported in the daily requests for services received
by the Social Worker responsible for the Suffolk
County advocacy program via the Homeless Children and
Simes Aff. Ex. A.
Plaintiffs also allege that there are hundreds of children who
are homeless throughout Suffolk County. According to information
from Suffolk County's Joint Task Force on Homelessness, 2,300
people and an estimated 1,400 children were living in emergency
housing in November of 2002. The actual number of homeless
children living in Suffolk County is unknown.
1. Rule 23(a)
To qualify for class certification, the plaintiff must first
prove that the putative class meets the four threshold
requirements of Rule 23(a):
(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions of
law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class, and (4) the
representative parties will fairly and adequately
protect the interests of the class.
Fed.R. Civ. P. 23(a); see also In re Visa Check/Mastermoney
Antitrust Litigation, 280 F.3d 124
, 132-33 (2nd Cir. 2001).
Rule 23(a)(1), generally referred to as the numerosity
requirement, requires that the class be "so numerous that joinder
of all members is impracticable." Fed.R. Civ. P. 23(a)(1).
"Impracticable," in this context, is not to be confused with
impossible. Rule 23(a)(1) only requires that, in the absence of a
class action, joinder would be "difficult" or "inconvenient."
Vengurlekar, 220 F.R.D. at 227 (internal quotations and
citations omitted). "Plaintiffs need not establish the precise
number of potential class members since courts are empowered to
make `common sense assumptions to support a finding of
numerosity.'" Nicholson v. Williams, 205 F.R.D. 92, 98
(E.D.N.Y. 2001) (quoting German v. Fed. Home Loan Mortgage
Corp., 885 F. Supp. 537, 552 (S.D.N.Y. 1995)).
The Plaintiffs submit that some 2,300 residents of Suffolk
County including approximately 1,400 children are homeless
and live in emergency housing. Indeed, the submissions of the
Defendants confirm that the school districts deal with hundreds
of homeless children on a daily basis. But the Defendants argue
that it would be practical for numerous homeless plaintiffs to
commence individual suits and then have them joined because the
members of the prospective class are geographically confined to
Suffolk County, New York. This arguments lack any semblance of
common sense or practicality.
In Koster v. Perales, the court noted that impracticability
of joinder is "even more pronounced" when the plaintiffs are
homeless. 108 F.R.D. 46, 50 (E.D.N.Y. 1985) (certifying a class
of homeless families who were challenging government policies).
"[H]omeless families are frequently homeless for short periods of
time; thus, the actual membership of the class is in constant
flux." Id. Similarly in the instant case, the economic status
and transience of most of the potential class members makes
individual suits next to impossible. Accordingly, the Court finds
that the Plaintiffs adequately satisfy the numerosity requirement
of Rule 23(a)(1).
The commonality requirement set forth in Rule 23(a)(2) requires
a showing that common issues of fact or law exist and that they
affect all class members. However, the individual circumstances
of the class members can differ without precluding class
certification. See Vengurlekar, 220 F.R.D. at 227. "The
critical inquiry is whether the common questions are at the core
of the cause of action alleged." Id. (internal quotations and
citations omitted). Commonality is assumed where the plaintiffs
seek declaratory relief as opposed to individual relief. Port
Authority Police Benev. Ass'n, Inc. v. Port Authority of New York
and New Jersey, 698 F.2d 150, 151 (2d Cir. 1983). The
commonality element of Rule 23(a)(2) is considered a "minimal
burden for a party to shoulder." Lewis Tree Service, Inc.,
211 F.R.D. 228, 231, (S.D.N.Y. Nov. 2002).
Here, the Plaintiffs have common issues of fact and law that
affect all class members. Legally, the Plaintiffs challenge the
failure of the Defendants to satisfy statutory and constitutional
mandates to ensure homeless children are enrolled and transported
to school. Factually, the Plaintiffs are similar in that they are
all children who missed school in part due to the fact that they
were homeless and were not enrolled in or provided adequate
transportation to and from school.
The Defendants urge that the legal issue can only be decided on
an individual basis because of the unique situation of each
child. However, individualized relief is not what the Plaintiffs
seek. The Plaintiffs are challenging how the practice and policy
of the Defendants affects each individual child. Furthermore,
because the proposed class members seek to enjoin a practice or
policy, rather than individualized relief, commonality is
Accordingly, the Court finds that the Plaintiffs have
adequately proven the existence of common issues of fact and law
among the putative class in satisfaction of the commonality
requirement in Rule 23(a)(2).
Rule 23(a)(3), also known as the typicality requirement,
requires that "each class member's claims arise from the same
course of events and [that] each class member makes similar legal
arguments to prove [the] defendant's liability." Vengurlekar,
220 F.R.D. at 227. The typicality requirement is meant to ensure
that the class representative is not subject to a unique defense
which could potentially become the focus of the litigation. See
id. "When it is alleged that the same unlawful conduct was
directed at or affected both the named plaintiff and the class
sought to be represented, the typicality requirement is usually
met irrespective of minor variations in the fact patterns
underlying individual claims." Robidoux v. Celani,
987 F.2d 931, 937 (2d Cir. 1993); see also Marisol A., 126 F.3d at 377
(holding that plaintiffs can meet the typicality requirement
where "their injuries derive from a unitary course of conduct by
a single system").
Here, the Plaintiffs' central issue is whether the Defendants
violated the McKinney-Vento Act by failing to ensure that
homeless children receive an education. The Defendants reject the
notion that the Plaintiffs are typical of the putative class by
pointing out the differences among each plaintiff. For example,
the Defendants point out that one plaintiff has a psychiatric
disability, another has attention deficit disorder, and another
has emotional and social problems. However, these differences are
irrelevant to the central issue, namely, that the Defendants are
not ensuring transportation or enrollment of homeless children in
The Court notes that "typicality, a matter closely related to
commonality, is satisfied when each class member's claim arises
from the same course of events and each class member makes
similar legal arguments to prove the defendant's liability." In
re Frontier Ins. Group, Inc. Securities Litigation,
172 F.R.D. 31, 40 (E.D.N.Y. 1997). Here, the putative class, including the
Plaintiffs, put forth one claim based on the same set of facts,
that is whether the Defendants have violated the McKinney Act and
the Constitution due to the unfortunate fact of being homeless.
Thus, the plaintiffs have proven that "the claims of the
representative parties are typical of the claims or defenses of
the class" and thus, have adequately satisfied the typicality
requirement of Rule 23(a)(3).
d. Adequacy of Representation
The Defendants urge that the named plaintiffs cannot adequately
represent the interests of the class due to the individualized
nature of their particular problems. Rule 23(a)(4) requires that
"the representative parties will fairly and adequately protect
the interests of the class." Rule 23(a)(4). There is "no simple
test for determining if a class will be adequately represented by
a named plaintiff" and "each case must be approached on an
individualized basis." In Re Lilco, 111 F.R.D. at 672. In order
to qualify, plaintiffs must "demonstrate that there is no
conflict of interest between the named plaintiffs and other
members of the plaintiff class." Marisol A., 126 F.3d at 378.
Defendants' contention, that the individualized problems of
each plaintiff conflicts with the interests of the potential
members of the class is unavailing. Plaintiffs seek broad based
relief which would require the Defendants to ensure the education
of homeless children. In this regard, the interests of the class
members are identical despite the individualized problems of each
Defendants also allege that one of the plaintiff's families is
no longer homeless, and thus cannot maintain standing in the
action. However, the Defendants do not explain how this will
cause a conflict of interest. "[N]either a defense that may be
asserted against a particular plaintiff nor the possibility that
a plaintiff's claim may become moot will necessarily bar members
of the class from obtaining the relief they seek." Koster,
108 F.R.D. at 53 (E.D.N.Y. 1985). Accordingly, the Court finds that
the Plaintiffs have satisfied the adequacy of representation
requirement of Rule 23(a)(4).
2. Rule 23(b)(2)
In addition to satisfying the four prerequisites established in
Rule 23(a), the plaintiff must prove that the putative class is
maintainable under at least one of the categories enumerated in
Rule 23(b). See In re Visa Check, 280 F. 3d at 133. Here, the
Plaintiffs request certification under Rule 23(b)(2). Under that
rule, an action may be maintained as a class action when the
"party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with
respect to the class as a whole." Fed.R. Civ. P.(b)(2).
The classic example of a class certification under Rule
23(b)(2) is where a party seeks to declare a law
unconstitutional. Koster v. Perales, 108 F.R.D. 46, 54
(S.D.N.Y. 1985). Certification is also proper where a government
entity refuses to comply with federal law. Id. Actions for
injunctive relief will satisfy the requirements of Rule 23(b)(2)
if the relief sought will benefit the entire class. See
Nicholson v. Williams, 205 F.R.D. 92, 99 (E.D.N.Y. 2001); see,
e.g., Marisol I., 929 F. Supp. 662, 692 (S.D.N.Y. 1996); see
also Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d
Cir. 1994) (suggesting that Rule 23(b)(2) "is almost
automatically satisfied in actions primarily seeking injunctive
Defendants argue that certification under Rule 23(b) is
improper due to the individualized issues among the named
Plaintiffs and the putative class members. The Court does not
agree that the issues of the Plaintiffs or the putative class are
materially unique. Plaintiffs seek, through requested injunctive
and declaratory relief, to remedy alleged system-wide abuses that
potentially impact each and every homeless child in Suffolk
County, New York. In so far as the Plaintiffs ask for injunctive
relief and predicate the lawsuit on the Defendants, the
requirements of Rule 23(b)(2) are satisfied.
Because the plaintiff has successfully fulfilled the
requirements of Rule 23(a) and Rule 23(b)(2), the Court holds
that certification of the putative class is proper.
Based on the foregoing, it is hereby
ORDERED, that the motion by the Defendants to dismiss this
action pursuant to Fed.R. Civ. P. 12(b)(6) is DENIED, and it
ORDERED, that the plaintiff's motion for class certification
pursuant to Fed.R. Civ. P. 23 is GRANTED in its entirety, and
it is further
ORDERED, that the parties are directed to proceed with the
bench trial, commencing on October 27, 2004 at 9:00 a.m.
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