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NAT'L LAW CTR. ON HOME. AND POV. v. STATE OF 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,
v.
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.

I. BACKGROUND

  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 class certification.

  II. DISCUSSION

  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 ...

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