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 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 ...