Appendix — District of Columbia v. Lampkin

~ Supreme Court, U.S.

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94 578 SEP 2 8 199%

NooPAck OF THE CLERK

In the Supreme Court of the United States

OcToBER TERM, 1994

District or CoLuMBIA, et al.,

Petitioners,

V.

BRENDA LAMPKIN, AS LEGAL GUARDIAN OF

JESSICA LAMPKIN AND CHRISTINE LAMPKIN, MINORS, et al.,

Respondents.

Appendix to Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

VANESSA Ruiz,

Corporation Counsel

CHaRLEs L. REISCHEL,

Deputy Corporation Counsel

Appellate Division

*Donna M. Murasky,

Assistant Corporation Counsel

Office of the Corporation Counsel

One Judiciary Square — Sixth Floor

441 Fourth Street, N.W.

Washington, D.C. 20001

Telephone: (202) 727-6252 ext. 3303

*Counsel of Record

TABLE OF CONTENTS

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Opinion of the United States Court of Appeals for the District

of Columbia Circuit (July 1, 1994)...-.-.------ss0o la

Judgment of the United States Court of Appeals for the

District of Columbia Circuit (July 1, 1994).......... . 19a

Memorandum Opinion of the United States District Court

for the District of Columbia (June 9, 1992) .......---- 2la

Order of the United States District Court for the District

of Columbia (June 9, 1992) ......------ see ee errs 36a

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he IN isin. occ ede cp nation eens 49a

42 U.S.C. § 11435 ........ Be an a ees ae 52a

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Notice: This opinion is subject to formal revision before publication in

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 1993 Decided July 1,. 1994

No. 92-7143

BRENDA LAMPKIN, AS LEGAL GUARDIAN OF

Jessica LAMPKIN AND CHRISTINE LAMPKIN, MINORS, ET AL.,

APPELLANTS

V.

DIstRICT OF COLUMBIA, A MUNICIPAL

CORPORATION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(D.D.C. No. 92cv00910)

Kerrie C. Dent argued the cause for appellants. With him

on the briefs were James D. Miller, Maria Foscarinis, and

Arthur B. Spitzer.

Donna M. Murasky, Assistant Corporation Counsel for the

District of Columbia, argued the cause for appellees. With

her on the brief were John Payton, Corporation Counsel,

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2a

Charles L. Reischel, Deputy Corporation Counsel, and Lutz

Alexander Prager, Assistant Deputy Corporation Counsel.

Deborah E. Greenspan and Gary Thompson were on the

brief for amici curiae U.S. Representatives Thomas Fogliet-

ta, George Miller, Tom Lantos, Louise Slaughter, and Jolene

Unsoeld.

Before Epwarps, BuckLey, and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge BucKLEY.

Dissenting opinion filed by Circuit Judge SENTELLE.

Buck ey, Circuit Judge: Parents of homeless children re-

siding in the District of Columbia seek to invoke 42 U.S.C.

§ 1983 to enforce provisions of the Stewart B. McKinney

Homeless Assistance Act. Concluding that the McKinney

Act does not confer enforceable educational rights on home-

less children, the district court granted the District of Colum-

bia’s motion to dismiss. Because we disagree with the dis-

trict court’s interpretation of the governing Supreme Court

case law, we reverse and remand for further proceedings.

I. INTRODUCTION

The McKinney Act, Pub. L. No. 100-77, 101 Stat. 482

(codified as amended at 42 U.S.C.A. §§ 11301 et seg. (West

Supp. 1993)), was passed in 1987 in response to “the critically

urgent needs of the homeless,” 42 U.S.C. § 11301(b)(2) (1988),

including the proper education of their children. 42 U.S.C.

§§ 11431-35 (Supp. IV 1992). The Act is a mix of large

visions and gritty detail, combining specific sections dealing

with the provision of education to homeless children and

youths with a broad congressional policy that “each State

educational agency ... assure that each child of a homeless

individual and each homeless youth have access to a free,

appropriate public education ... [and that] homelessness

alone ... not be sufficient reason to separate students from

the mainstream school environment.” Jd. § 11431.

To achieve this goal, the Secretary of Education is empow-

ered to grant funds to States participating in the programs

3a

authorized by the McKinney Act. 42 U.S.C. § 11432(a)

(1988). Grants may be used, among other purposes, to

“establish or designate an Office of Coordinator of Education

of Homeless Children and Youth” and to “prepare and carry

out the State plan described in subsection (e) of this section.”

42 U.S.C. § 11432(c)(3) & (4) (Supp. IV 1992). Subsection (d)

defines the functions of the Coordinator, which include the

duty to “develop and carry out the State plan” and to

“facilitate coordination” between state agencies and others

providing assistance to homeless children and their families.

Id. § 11482(d)(2) & (4). ,

Subsection (e), which is captioned “State plan,” consists of

nine paragraphs that may be divided into three parts. The

first consists of paragraph (1) and its nine subparagraphs.

These describe in general terms the concerns that are to be

addressed by the plan: e.g., establishment of procedures for

the resolution of disputes regarding the educational place-

ment of homeless children and youths, assurance of their

ability to participate in food programs, and undertaking to

protect them from being isolated or stigmatized. /d.

§ 11432(e)(1)(A)-(I). The second part, paragraph (2), re-

quires that the state plan assure, to the extent feasible under

state law, “that local educational agencies within the State

will comply with the requirements of paragraphs (3) through

(9).” Id. § 11432(e)(2).

Paragraphs (3) through (9), which comprise the third part

of subsection (e), are devoted to the “gritty details”—the

specific means by which the educational, health, and other

needs of the Act’s beneficiaries will be addressed. To cite

three examples that are germane here, paragraphs (3), (5),

and (7) read in relevant part as follows:

(3)(A) The local educational agency of each homeless

child and each homeless youth shall either—

(i) continue the child’s or youth’s education in the

school of origin—

(I) for the remaincer of the academic year; or

4a

(II) in any case in which a family becomes home-

less between academic years, for the following

academic year; or

(ii) enroll the child or youth in any school that

nonhomeless students who live in the attendance

area in which the child or youth is actually living are

eligible to attend;

whichever is in the child’s best interest or the youth’s

best interest.

(B) In determining the best interests of the child or

youth for purposes of making a school assignment under

subparagraph (A), consideration shall be given to a re-

quest made by a parent regarding school selection.

(5) Each homeless child shall be provided services

comparable to services offered to other students in the

school selected according to the provisions of paragraph

(3), including transportation services ...; and school

meals programs.

(7) Each local educational agency serving homeless

children or youth that receives assistance under this

subchapter shall coordinate with local social services

agencies, and other agencies or programs providing ser-

vices to such children or youth and their families.

Id. § 11482(e)(3), (5) & (7).

Appellants here are homeless children living in the District

of Columbia, which is deemed a State for purposes of the

McKinney Act. 42 U.S.C. § 11421(d) (1988). They filed this

action in the district court pursuant to 42 U.S.C. § 1983

(1988), which provides a cause of action against persons who

infringe upon federal constitutional or statutory rights while

acting “under color” of state law. Appellants allege that the

District has violated section 11432(e)(3), (5), (7), (8) and (9), as

5a

well as sections 11431(1), (2) and 11482(c)(2), (4). They seek

an order requiring, among other things, that the District

consider parents’ requests and make “best interests” determi-

nations when placing homeless children in schools; that it

assure homeless children the transportation necessary to

attend those schools; and that it ensure them access to

various educational and school meal programs, and other

services.

The district court found that the McKinney Act did not

create an enforceable right of action under section 1983 and

dismissed the complaint under Federal Rule of Civil Proce-

dure 12(b)(6) for failure to state a claim upon which relief

may be granted. Lampkin v. District of Columbia, Civ. No.

92-0910, slip op. at 14-15 (D.D.C. June 9, 1992). Thus the

sole question before us on appeal is whether the homeless

children can enforce the relevant provisions of the McKinney

Act pursuant to section 1983, a question we answer in the

affirmative.

II. Discussion

Since 1980, the Supreme Court has recognized that section

1983 may be invoked to challenge violations of federal stat-

utes. Maine v. Thiboutot, 448 US. 1, 6-8 (1980). This rule

has its exceptions: A statute will not be deemed enforceable

under section 1983 if Congress did not intend to create any

enforceable rights in it (which may be evidenced by the

provision of a comprehensive remedial scheme in the statute

itself) and where the statute “did not create enforceable

rights, privileges, or immunities within the meaning of

§ 1983.” Wright v. Roanoke Redev. and Hous. Auth., 479

U.S. 418, 423 (1987). These exceptions are more easily stated

than applied, as will be apparent from the Supreme Court’s

recent decisions in Wilder v. Virginia Hosp. Ass mn, 496 U.S.

498 (1990), and Suter v. Artist M., 112 S. Ct. 1360 (1992).

A. Wilder v. Virginia Hospital Association

In Wilder, the plaintiffs challenged the method by which

the State of Virginia reimbursed health care providers under

6a

the Medicaid Act, 42 U.S.C. § 1396 et seg. (1988). In particu-

lar, the Court faced the question

whether the Boren Amendment to the Act, which re-

quires reimbursement according to rates that a “State

finds, and makes assurances satisfactory to the Secre-

tary, are reasonable and adequate to meet the costs

which must be incurred by efficiently and economically

operated facilities,” is enforceable in an action pursuant

to § 1983.

Wilder, 496 US. at 501-02 (quoting 42 U.S.C.

§ 1396a(a)(13)(A)).

Drawing on its decision in Golden State Transit Corp. v.

Los Angeles, 493 U.S. 103 (1989), the Court established a test

to determine whether a statutory provision creates a federal

right enforceable under section 1983. First, the provision

must have been intended to benefit the putative plaintiff.

Wilder, 496 U.S. at 509. If it was so intended,

the provision creates an enforceable right unless it [1]

reflects merely a congressional preference for a certain

kind of conduct rather than a binding obligation on the

governmental unit ... or [2] unless the interest the

plaintiff asserts is too vague and amorphous such that it

is beyond the competence of the judiciary to enforce.

Id. (internal quotation marks and citations omitted). Once it

has been determined that an enforceable right exists, the

statute must be examined to determine whether “Congress

has foreclosed such enforcement of the statute in the enact-

ment itself.” Wright, 479 U.S. at 423. In applying this test

to the Boren Amendment, the Court stated that there was

little doubt that health care providers were its intended

beneficiaries. Wilder, 496 U.S. at 510. The Court then

reasoned that as the amendment was “cast in mandatory

rather than precatory terms,” it “imposes a binding obligation

‘on States participating in the Medicaid program to adopt

reasonable and adequate rates and ... is enforceable under

§ 1983 by health care providers.” Jd. at 512.

_ ———eo

Ta

This interpretation, which gives substantive teeth to the

reimbursement provision contained in the Medicaid Act, was

criticized by the dissenting justices. See id, 496 U.S. at 524

(Rehnquist, C.J., dissenting, joined by O’Connor, Scalia, and

Kennedy, JJ.). The dissenters agreed that a signatory State

was obligated to follow a particular process in providing some

level of reimbursement to health care providers but concluded

that the exact level of reimbursement was left to the discre-

tion of the States. Jd. at 527-28. The majority disagreed,

holding that “the only plausible interpretation of the amend-

ment is that by requiring a State to find that its rates are

reasonable and adequate, the statute imposes the concomitant

obligation to adopt reasonable and adequate rates.” Jd. at

514-15 (emphasis in original). The majority also rejected the

argument that the obligation imposed by the amendment was

too “vague and amorphous” to be judicially enforceable. /d.

at 519. Citing the guidance set forth in the statute and

accompanying regulations, including “the objective bench-

mark of an ‘efficiently and economically operated facility’ pro-

viding care in compliance with federal and state standards

while at the same time ensuring ‘reasonable access’ to eligible

participants,” the majority concluded that while the statute

grants the States “substantial discretion,” it does not fore-

close judicial review. /d.

Turning to the second prong of the inquiry, the majority

concluded that Congress had not foreclosed enforcement of

the Medicaid Act under section 1983. It found that “the Act

[did] not expressly preclude resort to § 1983”; nor did it

“ereate[ ] a remedial scheme that is ‘sufficiently comprehen-

sive ... to demonstrate congressional intent to preclude the

remedy of suits under § 1983.’” Jd. at 521 (quoting Middle-

sex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453

U.S. 1, 20 (1981)). In the eyes of the Court, the Act’s grant

of authority to the Secretary of Health and Human Services

“to withhold <pproval of plans” or “to curtail federal funds to

States whose plans are not in compliance with the Act” was

not “sufficiently comprehensive to demonstrate a congression-

al intent to withdraw the private remedy of § 1983.” Jd. at

521-22.

8a

B. Suter v. Artist M.

Two years later, the Court again addressed the availability

of the section 1983 remedy. In Suter v. Artist M., 112 S. Ct.

1360 (1992), the Court was called upon to determine whether

a provision of the Adoption Assistance and Child Welfare Act

of 1980, 42 U.S.C. §§ 620-28, 670-79a (1988), could be en-

forced under section 1983. Under the Child Welfare Act,

States seeking federal reimbursement of “a percentage of

foster care and adoption assistance payments” “must submit a

plan to the Secretary of Health and Human Services for

approval.” Suter, 112 S. Ct. at 1363. To be approved, a plan

must meet sixteen requirements, the following among them:

[I]n each case, reasonable efforts will be made (A) prior

to the placement of a child in foster care, to prevent or

eliminate the need for removal of the child from his

home, and (B) to make it possible for the child to return

to his home....

Id. at 1364 (quoting 42 U.S.C. § 671(a)(15) (emphasis added)).

In Suter, the plaintiffs sought to use section 1983 as the

procedural vehicle to obtain substantive enforcement of this

“reasonable efforts” provision.

In examining the nature of the obligations created by the

Child Welfare Act, the Court observed that

[t]he legitimacy of Congress’ power to legislate under the

spending power ... rests on whether the State voluntari-

ly and knowingly accepts the terms of the “contract.” .. .

[I]f Congress intends to impose a condition on the grant

of federal moneys, it must do so unambiguously.

Id. at 1366 (quoting Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 17 (1981)). Thus the critical inquiry

in Suter was whether, “in light of the entire legislative

enactment,” the Child Welfare Act “unambiguously con-

fer{red] upon [its] beneficiaries ... a right to enforce the

requirement that the State make ‘reasonable efforts’ to pre-

vent a child from being removed from his home, and once

removed to reunify the child with his family.” Jd. at 1367.

The Court began its inquiry with the statutory language—

“reasonable efforts will be made”—and noted that it was

9a

“mandatory in its terms.” Jd. at 1367. Nonetheless, the

Court’s central focus was on what action was required of a

State in exchange for the grant of federal funds:

Here, the terms of § 671(a) are clear: “In order for a

State to be eligible for payments under this part, it shall

have a plan approved by the Secretary.” Therefore the

[Child Welfare] Act does place a requirement on the

States, but that requirement only goes so far as to

ensure that the State have a plan approved by the

Secretary which contains the 16 listed features.

Id. (footnote omitted). Because the State’s sole obligation

was to submit a plan for the Secretary’s approval, the Court

concluded that section 1983 could not be invoked.

In so holding, the Court emphasized that each statute is to

be interpreted on its own terms. /d. at 1367 n.8 (“our holding

today ... merely counsels that each statute must be inter-

preted by its own terms.”). The Court distinguished Wilder

on the grounds that

in that case we held that the Boren Amendment actually

required the States to adopt reasonable and adequate

rates, and that this obligation was enforceable by the

[health care] providers. We relied in part on the fact

that the statute and regulations set forth in some detail

the factors to be considered in determining the methods

for calculating rates.

Id. at 1368. The Court then contrasted the Child Welfare

Act, where “{nJo further statutory guidance is found as to

how ‘reasonable efforts’ are to be measured.” Jd. Similarly,

no regulatory provision evidenced “any requirement for state

receipt of federal funds other than the requirement that the

State submit a plan to be approved by the Secretary.” Jd. at

1369 (footnote omitted). The Court thus concluded that the

directive to use reasonable efforts was so open-ended, and the

resulting state discretion so broad, that judicial enforcement

was an impossibility.

In foreclosing private enforcement of the Child Welfare

Act’s “reasonable efforts” clause, the Court noted that the Act

10a

contained alternative mechanisms for its enforcement. These

included the provisions, in subsection 671(b), that allowed the

Secretary

to reduce or eliminate payments to a State on finding

that the State’s plan no longer complies with § 671(a) or

that “there is a substantial failure” in the administration

of a plan such that the State is not complying with its

own plan.

Id. at 1368. The Court also referred to a provision condition-

ing federal reimbursement of foster care payments made with

respect to a child involuntarily removed from his home on “ ‘a

judicial determination to the effect that continuation [in the

child’s home] would be contrary to the welfare of such child.’ ”

Id. (quoting 42 U.S.C. § 672(a)(1)). The Court concluded

from these provisions that “the absence of a remedy to

private plaintiffs under § 1983 does not make the reasonable

efforts clause a dead letter.” Jd. at 1369 (footnote omitted).

C. Private Enforcement of the McKinney Act

In applying this jurisprudence to the McKinney Act, the

first question to ask is whether the statute was intended to

benefit persons such as appellants’ children. See Wilder, 496

U.S. at 509; Suter, 112 S. Ct. at 1367. This point is not in

dispute here: The parties all agree that the McKinney Act

was enacted to benefit homeless children. See 42 U.S.C.

§ 11431. That said, we must hold that the Act “creates an

enforceable right unless it reflects merely a congressional

preference for a certain kind of conduct rather than a binding

obligation on the governmental unit.” Wilder, 496 U.S. at 509

(citation- and internal quotation marks omitted; emphasis

added). Mindful of the need “to analyze the statutory provi-

sions in detail, in light of the entire legislative enactment, to

determine whether the language in question create[s] en-

forceable rights, privileges, or immunities within the meaning

of § 1983,” Suter, 112 S. Ct. at 1367 (internal quotation marks

omitted), we must determine whether the Act creates rights

that are substantively enforceable under section 1983.

Section 11482(f) of the McKinney Act provides:

lla

No State may receive a grant under this section unless

the state educational agency submits an application to

the Secretary at such time, in such manner, and contain-

ing or accompanied by such information as the Secretary

may reasonably require.

42 U.S.C. § 11432(f) (1988). The regulations issued by the

Secretary stipulate that a State may not begin to obligate

funds received pursuant to a federal grant until the later of

the two following dates: “(t]he date that the State plan is

mailed or hand delivered to the Secretary in substantially

approvable form” and “{tJhe date that the funds are first

available for obligation by the Secretary.” 34 C.F.R.

§ 76.703(a)(1) & (2). The regulations further stipulate that a

State

shall comply with the State plan and applicable statutes,

regulations, and approved applications, and shall use

Federal funds in accordance with those statutes, regula-

tions, plan, and applications.

Id. at § 76.700. Here, of course, the “applicable statute[ ]” is

the McKinney Act, and the obligations it imposes on partici-

pating States are clear. The Act requires that grants provid-

ed by the Secretary be used, inter alia, “to prepare and carry

out the State plan,” 42 U.S.C. § 11432(c)(4), and that “(eJach

plan ... assure ... that local educational agencies within the

State will comply with the requirements of paragraphs (3)

through (9),” id. at § 11482(e)(2). Paragraphs (3) through (9)

in turn provide highly specific instructions for meeting a

variety of needs of homeless children and youths. This

structure markedly contrasts with that of the Child Welfare

Act, with which the Suter Court was concerned. Although

both Acts describe in detail the contents of the plan a partici-

pating State must adopt, only the McKinney Act provides

specific directions for the plan’s execution. Compare 42

U.S.C. § 671(a) with 42 U.S.C. § 11432(e). It is this distinc-

tion that is ignored by our dissenting colleague, who con-

cludes that “the genuine statutory duty of a recipient state

under the McKinney Act is to prepare and carry out a plan,

designed to achieve nine designated goals.” Dissent at 2

(internal quotation marks omitted, emphasis in original).

12a

While we agree that the McKinney Act requires the State to

submit such a plan, it also differs significantly from the

Adoption Act in that paragraphs (3) through (9) of subsection

11432(e) of the McKinney Act not only inform the State in

great detail on how its plan is to be implemented, they impose

obligations that are independent of the plan. These are set

forth in specific, mandatory terms; and it is these that

appellants seek to enforce. Thus, paragraph (3) requires that

[t]he local educational agency of each homeless child and

each homeless youth shall [assign the child or youth to a

school which] is in the child’s best interest or the youth’s

best interest.... In determining the best interests of

the child or youth ... consideration shall be given to a

request made by a parent regarding school selection.

Id. § 11432(e)(3) (emphasis added). Succeeding paragraphs

stipulate that “[e]ach homeless child shall be provided servic-

“es comparable to services offered to other students in the

school ...,” id. § 11482(e)(5) (emphasis added), and that

records ordinarily kept by the school “shall be maintained” so

as to be available when the child enters a new school district.

Id. § 11432(e)(6) (emphasis added). Furthermore, they pro-

vide that

[e]ach local educational agency serving homeless children

or youth that receives assistance under this subchapter

shall coordinate with local social services agencies, and

other agencies or programs providing services to such

children or youth and their families[,]

id. § 11432(e)(7) (emphasis added), and “shall designate a

homelessness liaison.” Jd. § 11432(e)(8) (emphasis added).

We read this language as “mandatory rather than hortatory.”

This interpretation is supported by paragraph (2), which

describes paragraphs (3) through (9) as “requirements” rath-

er than options. Jd. § 11432(e)(2).

In addition to the mandatory obligations listed in those

seven paragraphs, the McKinney Act also provides that

[t]he Coordinator of Education of Homeless Children and

Youth established in each State shall ... once every 2

years, gather data on the number and location of home-

l3a

less children and youth in the State ... develop and

carry out the State plan ... [and] facilitate coordination

between the State education agency, the State social

services agency, and other agencies providing services to

homeless children and youth and their families.

Id. § 11432(d). The language of these provisions is sufficient-

ly clear to put the States on notice of the obligations they

assume when they choose to accept grants made under the

Act. Pennhurst State School and Hospital v. Halderman,

451 U.S. 1, 17 (1981) (“if Congress intends to impose a

condition on the grant of federal moneys, it must do so

unambiguously” (footnote omitted)).

Moreover, as we noted earlier, the Secretary has promul-

gated regulations stipulating that for state-administered pro-

grams like the McKinney Act, “[a] State ... shall comply

with the State plan and applicable statutes, regulations, and

approved applications, and shall use Federal funds in accor-

dance with those statutes, regulations, plan, and applications.”

34 C.F.R. § 76.700. Contrast Suter, 112 S. Ct. at 1369

(noting that the regulations accompanying the Child Welfare

Act “do not evidence a view that [the statute] places any

requirement for state receipt of federal funds other than the

requirement that the State submit a plan to be approved by

the Secretary” (footnote omitted)). Here, the regulations

merely reinforce our conclusion that States undertake well-

defined obligations when they elect to accept funds under the

McKinney Act.

Finally, the McKinney Act contains no statutory mecha-

nisms for the administrative enforcement of the beneficiaries’

rights, suggesting that Congress did not intend to create a

private cause of action that is enforceable under section 1983.

See Suter, 112 S. Ct. at 1368-69 (citing alternative enforce-

ment mechanisms provided by sections 671(b) and 672(a)(1) of

the Child Welfare Act as showing that “the absence of a

remedy to private plaintiffs under § 1983 does not make the

reasonable efforts clause a dead letter” (foctnote omitted)).

Thus there is nothing in the structure of the McKinney Act to

suggest that its beneficiaries may not invoke section 1983 to

enforce their rights under the Act.

l4a

One hurdle remains before we can declare that the rights

conferred on homeless children by the Act are enforceable in

federal court. Even if a statute confers rights on a beneficia-

ry, their judicial enforcement requires that they not be overly

“vague and amorphous.” Wilder, 496 U.S. at 519 (internal

quotation marks omitted). The District argues that the

statutory requirement that a school be selected in accordance

with the “best interests” of a homeless child is at least as

vague as the “reasonable efforts” clause that the Court found

too amorphous in Suter. See New York v. United States, 112

S. Ct. 2408, 2445 (1992) (Justice White, concurring in part,

dissenting in part, describing Suter as “not permitting a

§ 1983 suit under a Spending Clause statute when the osten-

sible federal right created was too vague and amorphous”).

This argument asserts, in essence, that the judiciary is

incapable of determining the “best interests” of children, just

as the plaintiffs in Wilder argued that the judiciary was

incapable of determining what constitutes “reasonable and

adequate” hospital rates. See Wilder, 496 U.S. at 519. In

response, the Court observed:

That the [Boren] [A]mendment gives the States substan-

tial discretion in choosing among reasonable methods of

calculating rates may affect the standard under which a

court reviews whether the rates comply with the amend-

ment, but it does not render the amendment unenforce-

able by a court. While there may be a range of reason-

able rates, there certainly are some rates outside that

range that no State could ever find to be reasonable and

adequate under the Act. Although some knowledge of

the hospital industry might be required to evaluate a

State’s findings with respect to the reasonableness of its

rates, such an inquiry is well within the competence of

the Judiciary.

Id. at 519-20 (footnote omitted) (emphasis in original).

The obligations imposed by the McKinney Act involve, for

the most part, the exercise of judgment by a local educational

agency. A court, however, may discern whether the criteria

15a

or procedures adopted by the agency are reasonably designed

to aid it in making the school placement decision. Moreover,

we have little doubt that the court would also have the

competence to determine whether the District had complied

with its obligation to assign a particular homeless child to a

school that was in his best interests.

In recent years, the courts of this circuit have frequently

been called upon to determine whether the District of Colum-

bia public school system had met a comparable obligation

under the Education for the Handicapped Act, 20 U.S.C.

§§ 1400 et seg. (1988), which requires participating States to

assure handicapped children of an “appropriate education.”

See, e.g., Kerkam v. Superintendent, D.C. Public Schools, 931

F.2d 84 (D.C. Cir. 1991); Knight by Knight v. District of

Columbia, 877 F.2d 1025 (D.C. Cir. 1989). Although the

criteria and procedures set forth in the Education for the

Handicapped Act are more detailed than those in the McKin-

ney Act, the ultimate determination made under that Act—

that the handicapped child’s education is “appropriate” to his

needs—is no less vague or amorphous than the one at issue

here. As in Kerkam and Knight, should a dispute arise

between the educational agency and the parents of the home-

less child as to whether the school to which the child has been

assigned is in his best interest, a court is clearly competent to

consider the testimony of opposing witnesses and to decide

whether the agency’s determination of the child’s best inter-

est was reasonable.

We conclude, from the foregoing, that section 11432(e)(3) of

the McKinney Act confers enforceable rights on its beneficia-

ries and that appellants may invoke section 1983 to enforce

those rights.

III. CoNncLusion

For the foregoing reasons, we reverse the district court’s

order granting the District’s motion to dismiss and remand

the case for further proceedings in accordance with this

opinion.

So ordered.

16a

SENTELLE, Circuit Judge, dissenting: I respectfully dissent

from the court’s conclusion that the McKinney Homeless

Assistance Act, 42 U.S.C. § 11301 et seg. (1988), creates a

federal right enforceable under 42 U.S.C. § 1983. I do so

recognizing that the question is a close one, though in my

mind it should not be. That is, I agree with Justice Powell

that the Supreme Court in Maine v. Thiboutot, 448 U.S. 1

(1980), by holding “almost casually, that 42 U.S.C. § 1983

creates a cause of action for deprivations ... of any federal

statutory right” distorted the Civil Rights Act far beyond any

support in its then already lengthy history. 448 U.S. at 11

(Powell, J., dissenting, for himself, Chief Justice Burger and

then-Justice Rehnquist). That said, I of course recognize

that it is not within our compass to pick and choose which

Supreme Court opinions we follow. Nonetheless, in my view,

the district court reached the proper result and I would

affirm.

Although the Supreme Court has counseled us that in the

post-Thiboutot framework of § 1983 interpretation “each stat-

ute must be interpreted by its own terms,” Suter v. Artist M.,

112 S. Ct. 1360, 1867 n.8 (1992), obviously, the high court’s

prior interpretations of other statutes instructs our interpre-

tation of the present one. In Suter, as the majority points

out today, the Supreme Court found no right enforceable

under § 1983 in the Child Welfare Act. In Wilder v. Virgi-

nia Hospital Association, 496 U.S. 498 (1990), the Supreme

Court did find such a right in the Boren Amendment to the

Medicaid Act. The majority opinion today does a commend-

able job of cataloging the similarities and differences between

the two cases and I will not rehash them. I do not disagree

with the majority’s summary of either case, only with its

conclusion as to the side upon which the McKinney Act falls.

As the majority notes, the Suter decision was based at least

in part upon the conclusion “that the [statutory] directive to

use reasonable efforts was so open-ended, and the resulting

state discretion so broad, that judicial enforcement was an

impossibility.” Maj. op. at 9. That is to say, whatever other

grounds may exist for denying judicial enforcement to

statutorily-created federal “rights” under § 1983, the “judicial

enforcement” of such rights “requires that they not be overly

17a

‘vague and amorphous.’” Maj. op. at 14 (quoting Wilder, 496

U.S. at 519). Therefore, for us to undertake judicial enforce-

ment of rights under the McKinney Act presupposes an

ability by the federal courts to carry out for the recalcitrant

state the duty of determining school assignments in the “best

interests” of children and youths. To me this is no less vague

and amorphous than the “reasonable efforts” language which

the Supreme Court in Suter held insufficient to create such

an enforceable right.

Certainly the majority is correct that in other circum-

stances courts must determine the “best interests” of particu-

lar children. However, the usual exercise of judicial wisdom

in pursuit of the “best interests” of a particular child is just

that—a particularized one. Here, the courts would be called

upon to make programmatic decisions not as to the best

interest of a particular child, but as to how a grant-

augmented state program should be designed to meet the

needs of groups of particularized children. The programmat-

ic operation of a state agency is not within the judicial

competence.

Finally, it appears to me that the genuine statutory duty of

a recipient state under the McKinney Act is to “prepare and

carry out” a plan, “designed to” achieve nine designated

goals. 42 U.S.C. §§ 11482(c)(4) & 11482(e)(1). Given the

amorphousness of the “designed to” mandate, I do not see

how this differs in a controlling way from the Adoption Act

construed in Suter. There the Court held that statute did not

create a right enforceable under § 1983 because it did not

“place[ ] any requirement for state receipt of federal funds

other than the requirement that the State submit a plan to be

approved by the Secretary.” Suter, 112 S. Ct. at 1369. The

mandating paragraphs of the McKinney Act listed by the

majority do not change this. The Adoption Act also con-

tained descriptions of the relevant plan. Indeed, 42 U.S.C.

§ 671 provided a description of the required plan approxi-

mately as detailed, and with as many uses of mandatory

words such as “shall” and “will,” as does the McKinney Act

elaietaaa inate tater

18a

outlined in the majority opinion. Nonetheless, the Supreme

Court held that the statute did not create a civil right

enforceable under § 1983.

In my view, the district court in the present case properly

deemed Suter rather than Wilder controlling. I would there-

fore affirm.

19a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1993

USDC CV 92-0910

No. 92-7143

BRENDA LAMPKIN, AS LEGAL GUARDIAN OF

JESSICA LAMPKIN AND CHRISTINE LAMPKIN, MINORS, et al.

Appellants,

V.

District OF COLUMBIA,

A MunicipaL CorpPoraTION, et al,

Appellees

Appeal from the United States District Court

for the District of Columbia

BEFORE: Epwarps, Buck.ey and SENTELLE, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia and was argued by counsel. On consideration

thereof, it is

ORDERED and ADJUDGED, by the Court, that the

judgment of the District Court appealed from in this cause

is hereby reversed and the case is remanded, in accordance

with the Opinion for the Court filed therein this date.

20a

Per Curiam

For The Court:

Ron Garvin, Clerk

/s/ By: Robert A. Bonner

RosBert A. Bonner

Deputy Clerk

Fitep: Jury 1, 1994

Opinion for the Court filed by Circuit Judge Buckley.

Dissenting opinion filed by Circuit Judge Sentelle.

2la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civit Action No. 92-0910 (RCL)

BRENDA LAMPKIN, AS LEGAL GUARDIAN OF JESSICA LAMPKIN

AND CHRISTINE LAMPKIN, MINORS, et al.

Plaintiffs,

V.

District oF CoLuMBIA, et al.,

Defendants.

MEMORANDUM OPINION

This matter comes before the court upon plaintiffs’ mo-

tion for preliminary injunction and defendants’ motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

Plaintiffs in this matter are ten homeless parents' (who are

bringing this action on behalf of their children) and the Na-

tional Law Center on Homelessness and Poverty. Defendants

are the District of Columbia, Sharon Pratt Kelly in her of-

ficial capacity as Mayor of the District of Columbia, the

District of Columbia Public Schools, and Dr. Franklin L.

Smith in his official capacity as the Superintendent of the

District of Columbia public school system.

Plaintiffs bring this action for declaratory and injunctive

relief pursuant to section 1983 of the Civil Rights Act, 42

U.S.C. § 1983 (1981 and Supp. 1991) (‘‘section 1983”’). Plain-

tiffs contend that defendants have denied plaintiffs’ rights

under Title VI of the Stewart B. McKinney Homeless

Assistance Act, 42 U.S.C. §§ 11421-11432 (Supp. 1991). For

the following reasons, plaintiffs’ motion for preliminary

‘ The ten parents are: Brenda Lampkin, Sadie Chatmon, Denise Dabney,

Barbette Fribbley, Dawn Harvell, Gail Mason, Twana Robb, Maria

Summers, Patricia Sumpter and Cherise Thornes.

22a

injunction shall be denied and defendants’ motion to dismiss

shall be granted.

I. FACTS

In 1987, Congress passed the Stewart B. McKinney

Homeless Assistance Act. 42 U.S.C. §§ 11421-11432 (Supp.

1991) (“McKinney Act” or “the Act”’). The Act is based upon

Congress’ policy that state educational systems shall assure

that homeless children have equal access to free education.’

Title VI, Part B of the Act, entitled Education for Homeless

Children and Youth, is basically a grant statute. It authorizes

the Secretary of Education to grant federal funds to states

so that these states can carry out the activities that are

described in subsections (c), (d) and (e) of section 11432. Id.

at § 11432(a). In the present case, the District of Columbia’

received $50,000.00 pursuant to the Act. See id. at § 11432(b).

Pursuant to subsection (c) of section 11432, these funds

are to be used to, among other things: carry out the policies

of the Act; provide such services and activities to homeless

children and youths to enable them to enroll in, attend and

achieve in school; carry out the state plan (discussed infra);

and to develop and implement programs for school person-

nel to heighten awareness of the specific problems that sur-

round the education of homeless children and youth. Jd. at

§ 11432(c). The relevant portions of subsection (d) state that

the Coordinator of Education of Homeless Children and

*42 U.S.C. § 11431 provides that:

(1) each State educational agency shall assure that each child

of a homeless individual and each homeless youth have access

to a free, appropriate public education which would be provided

to the children of a resident of a State and is consistent with

the state school attendance laws;

(3) homelessness alone should not be sufficient reason to

separate students from the mainstream school environment.

* The District of Columbia is considered a ‘“‘state”’ for the purposes of

Title VI of the McKinney Act. See 42 U.S.C. § 11421(d).

23a

Youth shall facilitate coordination between various state

agencies and shall develop relationships between various

educational programs and providers to ‘‘improve the provi-

sion of comprehensive services to homeless children and

homeless youths and the families of such children and

youths” Id. at § 11432(d)(4),(5).

Most of plaintiffs’ claims are based upon defendants’

alleged failure to comply with subsection (e). This subsec-

tion, entitled ‘‘State Plan,”’ states that ‘‘[e]ach State shall

adopt a plan to provide for the education of each homeless

child or homeless youth within the State... .”’ Id. at §

11432(e)(1). Among other things, each state plan must

authorize the state educational agency to make the necessary

determinations under this section and address the various

problems that stand in the way of educating homeless

children. See Id. at § 11432(e)(1)(A)-(I).

Subsection (e) also provides in relevant part that:

(2) Each plan adopted under this subsection shall

assure, to the extent practicable under requirements

relating to education established by State law, that

local educational agencies within the State shall

comply with the requirements of paragraphs (3)

through (9).

(3A) The local educational agency of each homeless

child and each homeless youth shall either —

(i) continue the child’s or youth’s education in

the school of origin —

(I) for the remainder of the academic year;

or

(II) in any case in which a family member

becomes homeless between academic years,

for the following academic year; or

(ii) enroll the child or youth in any school that

nonhomeless students who live in the atten-

dance area in which the child or youth is ac-

tualiy living are eligible to attend;

whichever is in the child’s best interest or the

youth’s best interest.

24a

(B) In determining the best interests of the child

or youth for purposes of making a school assign-

ment under subparagraph (A), consideration shall

be given to a request made by a parent regarding

school selection.

(5) Each homeless child shall be provided services

comparable to services offered to other students in

the school selected according to the provisions of

paragraph (3), including transportation services,

educational services for which the child meets the

eligibility criteria, such as compensatory educa-

tional programs for the disadvantaged, and the

educational programs for the handicapped and for

students with limited English proficiency; programs

for vocational education; programs for the gifted

and talented; and school meal programs.

(7) Each local educational agency serving homeless

children or youth that receives assistance under this

subchapter shall coordinate with local social services

agencies, and other agencies or programs providing

services to such children or youth and their families.

(9) Each-State and local educational agency shall

review and revise any policies that may act as

barriers to the enrollment of homeless children and

youth in schools selected in accordance with

paragraph (3). In reviewing and revising such

policies, consideration shall be given to issues con- .

cerning transportation, requirements of immuniza-

tion, residency, birth certificates, school records, or

other documentation, and guardianship. Special at-

tention shall be given to ensuring the enrollment and

attendance of homeless children and youths who are

not currently attending school.

Id. at $ 11432(e).

Also relevant to this case is section 11432(f) of the Act.

This section provides that “‘{nJo State may receive a grant

under this section unless the State educational agency sub-

mits an application to the Secretary at such time, in such man-

ner, and containing or accompanied by such information as

the Secretary may reasonably require.’ Id. at § 11432(f). See

also id. at § 11433(d)(1) (which provides that “‘{a] local educa-

25a

tional agency that desires to receive a grant under this

section shall submit an application to the State educational

agency at such time, in such manner, and containing or

accompanied by such information as the State agency may

reasonably require according to the guidelines issued by the

Secretary”). The application must include:

(A) a description of the services and programs for

which assistance is sought and the problems sought

to be addressed through the provision of such ser-

vices and programs;

(B) assurances that the applicant complies with or

will use requested funds to come into compliance

with paragraphs (3) through (9) of section 11432(e)

of this title;

(C) an assurance that assistance under the grant

will supplement and not supplant funds used before

the award of the grant for purposes of providing ser-

vices to homeless children and homeless youth;

(D) a description of policies and procedures that the

agency will implement to ensure that activities car-

ried out by the agency will not isolate or stigmatize

homeless children or homeless youth.

Id. at § 11[4]33(d)(1).

The final provision of the Act which is relevant to this case

is section 11434. This section imposes various duties upon

the Secretary of Education. This provision states, in rele-

vant part, that:

[in reviewing the State plans submitted by the

State educational agencies under section 11432(e)

of this title, the Secretary shall evaluate whether

State laws, policies, and practices described in such

plans adequately address the problems of homeless

children and homeless youth relating to access to

education and placement as described in such plans.

Id. at § 11424(b){1).

Plaintiffs assert that defendants have failed to comply with

Title VI of the McKinney Act in that defendants have: (1)

failed to implement a best interest standard in placing home-

26a

less children in schools; (2) failed to ensure transportation

to and from the school that is in the best interest of homeless

children to attend; (3) failed to coordinate social services and

public education for homeless children, and to ensure access

to comparable educational services and school meal pro-

grams; and (4) failed to provide access to free, appropriate

public education for homeless children.

In addition to their section 1983 claims under the McKinney

Act, plaintiffs allege that defendants violated their rights

to equal protection under the Fifth Amendment to the United

States Constitution. Plaintiffs state that although they are

similarly situated to handicapped children in their need for

transportation assistance, defendants provide transportation

assistance to handicapped children and not* to homeless

children.

Defendants oppose plaintiffs’ motion for preliminary in-

junction on the ground that plaintiffs are not entitled to in-

junctive relief. Further, in their motion to dismiss, defendants

assert that plaintiffs have failed to state a claim upon which

relief can be granted because plaintiffs do not have a private

right of action under the McKinney Act for the relief sought

and because they have failed to adequately plead an equal

protection claim.

II. ANALYSIS

A. Legal Standard

Pursuant to the Federal Rules of Civil Procedure, the court

may dismiss plaintiffs’ claims for failure to state a claim upon

which relief may be granted. Fed. R. Civ. P. 12(b)(6). For the

purposes of this motion, the court shall accept all of plain-

tiffs’ allegations as true.

B. Section 1983

42 U.S.C. § 1983 provides a federal remedy for ‘‘the

deprivation of any rights, privileges, or immunities secured

by the Constitution and federal laws.” Section 1983 is

available as a remedy for violations of federal statutes as

well as for constitutional violations. See Maine v. Thiboutot,

;

i

'

27a

448 U.S. 1 (1980). Prior to the United States Supreme Court's

ruling in Suter v. Artist M., —— U.S. ——, 112 S. Ct. 1360

(1992), the Court had developed a two-part line of inquiry

for determining whether section 1983 provides a remedy for

a statutory violation. First, since section 1983 speaks in

. terms of “rights, privileges or immunities,’ not violations

of federal law, the court must determine whether plaintiff

asserted a violation of a federal right. Golden State Transit

Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989). The

Supreme Court has recognized three basic considerations

that courts should consider when finding whether plaintiffs

assert a violation of a right. First, courts should consider

whether the provision at issue creates a binding obligation

upon the government, in which case a federal right would

be created, or whether the provision does ‘“‘no more than

express a congressional preference for certain kinds of treat-

ment,’ in which case no federal right would be created. Jd.

(quoting Pennhurst State School and Hospital v. Halderman,

451 U.S. 1, 19 (1981)). Second, courts should consider whether

the interest is ‘‘too vague and amorphous” so that it is

considered ‘‘beyond the competency of the judiciary to

enforce.” Golden State, 495 U.S. at 106 (quoting Wright v.

Roanoke Redevelopment and Housing Authority, 479 U.S.

418, 431-32 (1987)). If so, then no federal right is created.

Third, courts should consider whether the provision in ques-

tion was “‘inten[ded] to benefit”’ the plaintiff. Golden State,

493 U.S. at 106 (quoting Wright, 479 U.S. at 430)). If so, then

a federal right may be created.

Second, should the court find that plaintiffs have asserted

a federal right, section 1983 provides a remedial cause of

action ‘“‘unless the state actor demonstrates by express pro-

vision or other specific evidence from the statute itself that

Congress intended to foreclose such private enforcement.”

Wright, 479 U.S. at 418. Defendants must demonstrate that

Congress has “specifically foreclosed a remedy under § 1983”

»y providing a comprehensive enforcement mechanism to

protect a federal right. Golden State, 493 U.S. at 106 (quoting

Smith v. Robinson, 468 U.S. 992, 1005 n. 9 (1984)). See also

Middlesex County Sewage Authority v. National Sea Clam-

28a

mers Ass'n., 453 U.S. 1 (1981). The Supreme Court has stated

that ‘‘[w]e do not lightly conclude that Congress intended

to preclude reliance on § 1983 as a remedy”’ for the depriva-

tion of a federal right. Wright, 479 U.S. at 418-419 (quoting

Smith, 468 U.S. at 1012)). The Court rarely finds that a

remedial scheme established by Congress is sufficient to

displace the remedy that is provided by § 1983.‘ See Wilder,

110 S. Ct. at 2523.

The availability of an administrative mechanism is not

necessarily seen by the Court as sufficient to show that Con-

gress intended to foreclose a section 1983 remedy. Golden

State, 493 U.S. at 106 (cites omitted). Rather, a private right

of action under section 1983 is foreclosed ‘‘only when the

statute itself creates a remedial scheme that is ‘sufficiently

comprehensive . . . to demonstrate congressional intent to

preclude the remedy of suits under $ 1983.’ Wilder v.

Virginia Hospital Ass’n., 496 U.S. 498, 110 S. Ct. 2510, 2523

(1990) (quoting Sea Clammers, 453 U.S. 1, 20 (1981)).

Moreover, the Court has also held that the generalized

authority to cut off federal funds is ‘‘insufficient to indicate

a congressional intention to foreclose § 1983 remedies.”’

Wright, 479 U.S. at 428 (cites omitted). See also Wilder,

110.S. Ct. at 2524; Suter, 112 S. Ct. at 1376 (Blackmun, J.,

dissenting) (in which Justice Blackmun noted that ‘“‘ever

since Rosado v. Wyman, 397 U.S. 397 (1970), the power of

the secretary to enforce congressional spending conditions

by cutting off funds has not prevented the federal courts

from enforcing the same conditions’’).

‘In Wilder, the Court noted that it has found that Congress's remedial

scheme was sufficient to displace section 1983 only on two occasions. In

Sea Clammers, the Court held that the enforcement scheme that was

created in the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et

seq., demonstrated congressional intent to foreclose the section 1983

remedy because it granted the Environmental Protection Agency con-

siderable enforcement power through the use of noncompliance orders,

civil suits, criminal penalties and two citizen-suit provisions. Sea Clam-

mers, 453 U.S. at 13. In the other case, Smith v. Robinson, the Court held

that the administrative scheme set forth in the Education of the Han-

dicapped Act, which contained a “‘carefully tailored administrative and

judicial mechanism”’ foreclosed section 1/83 as a remedy. Smith v. Robin-

son, 468 U.S. 992, 1009 (1984).

tees vad

29a

In Suter, which is factually similar to the present case, the

Court broke from this line of inquiry. See Suter, 112 S. Ct.

at 1376 (Blackmun, J., dissenting). The issue presented in

Suter was whether section 1983 permits private individuals

the right to enforce the Adoption Assistance and Child

Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679a (‘‘Adop-

tion Act’’). The Adoption Act established a federal reimburse-

ment program for various expenses incurred by states in

administering foster care and adoption services. Suter, 112

S. Ct. at 1363. The Act provided that states which satisfy

the Act’s requirements will be reimbursed for a percentage

of foster care and adoption assistance programs. /d.

In order to participate in the reimbursement program, the

Adoption Act required that states submit a plan to the

Secretary of Health and Human Services for approval by the

Secretary. Jd. at 1363-64. The Adoption Act listed 16

qualifications that state plans must contain in order to gain

the Secretary’s approval. Jd. at 1364. One of the requisite

features was that ‘‘reasonable efforts will be made [by the

state agency] (A) prior to the placement of a child in foster

care, to prevent or eliminate the need for removal of the child

from his home, and (B) to make it possible for the child to

return to his home.”’ Jd. (quoting 42 U.S.C. § 671(a)(15)).

Respondents in Suter filed a class-action suit seeking

declaratory and injunctive relief under the Adoption [Al]ct Jd.

at 1364. Respondents claimed that the state agency, in viola-

tion of the Adoption Act, ‘‘failed to make reasonable efforts

to prevent removal of children from their homes and to

facilitate reunification of families where removal had occur-

red.’’ Id. (footnote omitted). The United States District Court

for the Northern District of Illinois found that the Adoption

Act created a right of action under section 1983. Artist M.

v. Johnson, 726 F. Supp. 690 (N.D. Ill. 1989). The United

States Court of Appeals for the Seventh Circuit, relying

* In his dissent, Justice Blackmun stated that ‘‘the Court reache{d] its

conclusion without even stating, much less applying, the principles our

precedents have used to determine whether a statute has created a right

enforceable under § 1983.’’ Suter, 112 S. Ct. at 1371.

,

30a

primarily upon Wilder, affirmed, holding that the “reasonable

efforts’’ clause of the Adoption Act could be enforced under

section 1983. Artist M. uv. Johnson, 917 F.2d 980 (7th Cir.

1990).

The Supreme Court reversed and held that the Adoption

Act does not confer an enforceable right of action based on

section 1983. Suter, 112 S. Ct. at 1365. The Court held that

the fact that the language of 42 U.S.C. § 671(a)(15) is man-

datory in its terms does not alone create a right that is en-

forceable under section 1983. Rather, the Court considered

exactiy what the Act required the states to do. Id. at 1367.

The Court then held that the Adoption Act only required

that states have their plans approved by the Secretary, mean-

ing that their plans must contain the 16 features that are

required by the statute. Jd. The Court then recognized that

Illinois’ state plan was approved by the Secretary. Id. The

Court distinguished the Adoption Act from the statute in

Wilder, a case in which the Court found . . . an enforceable

right, because the statute in Wilder actually required that

states adopt reasonable and adequate rates.* Jd. at 1368.

Title VI of the McKinney Act, Part B, closely resembles

the Adoption Act in Suter in two ways. First, like the Adop-

tion Act, portions of the McKinney Act are mandatory in

their terms. For example, 42 U.S.C. § 11432(e)(3)(A) provides

that the local educational agency ‘‘shall either — continue

the child’s or youth’s education in the school of origin...

or... enroll the child or youth in any school that

nonhomeless students who live in the attendance area in

which the child or youth is actually living are eligible to at-

tend; whichever is in the child’s best interest or in the youth’s

best interest.” According to Suter, however, such mandatory

language alone does not create a right of action under § 1983.

Rather, the court must determine exactly what the McKin-

ney Act requires defendants to do.

* The Court also held that the “reasonable efforts” clause in $ 671(a)(15)

of the Adoption Act does not confer an enforceable right upon the Adop-

tion Act’s beneficiaries, but rather “‘it impose{s] only a generalized duty

on the State, to be enforced not by private individuals, but by the

Secretary .. . .”’ Suter, 112 S. Ct. at 1368-69.

Setanta; wacko ihe at webs

3la

The second similarity between the McKinney Act and the

Adoption Act is the fact that both statutes only require

states to submit plans or applications to be approved by the

federal government. Title VI of the McKinney Act authorizes

the Secretary of Education to grant federal funds to state

educational agencies so that these agencies may carry out

the activities that are authorized in subsections (c), (d) and

(e) of section 11432. 42 U.S.C. § 11432(a), (b). One of these

activities is preparing and carrying out a state plan which

must comply with the requirements that are set forth in

subsection (e). Id. at § 11432(d), (e). The state plan is design-

ed to assure that local agencies comply with the provisions

that are set forth in § 11432(e)(3) through (9), the sections

which contain the mandatory language that plaintiffs point

to in claiming that the Act creates a private right of action.

Id. at § 11432(e)(2).

Section 11432(f) of the McKinney Act provides that no

state may receive grants under the Act unless it submits a

proper application to the Secretary of Education. Such an

application must, among other things, assure that the ap-

plicant will use its federal funds to come into compliance with

the requirements of section 11432(e)(3)-(9). The final piece of

this statutory framework is provided by section 11434. This

section requires the Secretary of Education to assure that

the State educational agencies’ applications are proper in

order for it to grant federal funds under this statute.

Thus, much like the Adoption Act in Suter, the McKinney

Act does not confer an enforceable right upon plaintiffs.’

Rather, the only requirement that the Act imposes upon

states is the duty to submit a proper application if the state

wishes to receive federal funding to educate homeless

children. See id. at § 11432(f); § 11433(d). The only enforceable

duty that the Act may impose is upon the Secretary of

"Due to the similarity between the McKinney Act in the present case

and the Adoption Act in Suter, the court shall follow the analysis that

the Supreme Court applied in Suter. Accordingly, the court does not

reach . . . the issue of whether Title VI of the McKinney Act would

create an enforceable right of action pursuant to section 1983 under the

Supreme Court’s pre-Suter jurisprudence.

32a

Education. The Secretary must comply with section 11434

and review state plans as well as state laws, policies and prac-

tices to assure that the states adequately address the pro-

blems of educating homeless children before the Secretary

may grant federal funds to each state. See id. at § 11434(b)(1).

Accordingly, like in Suter, the mandatory language that

is cited by plaintiffs in section 11432(e}(3)-(9) does not create

an enforceable right under section 1983. Rather, this

language merely sets forth the criteria that the Secretary

must consider when deciding whether a state’s application

is proper. See id. at § 11434(b)(1). It is then up to the

Secretary to determine whether the states’ applications are

adequate and whether the states deserve a federal grant. See

id. Consequently, the court shall grant defendants’ motion

to dismiss plaintiffs’ section 1983 claims because plaintiffs

have failed to state a claim upon which relief can be granted.*

C. Implied Right of Action

In Suter, after finding that the Adoption Act did not create

an enforceable right of action under section 1983, the Court

briefly addressed whether the Adoption Act contained an

implied right of action. The Court applied the familiar test

from Cort v. Ash, 422 U.S. 66 (1975), and held that the Adop-

tion Act did not. In the present case, plaintiffs’ statutory

claims are based solely upon section 1983 and not directly

under the McKinney Act. Thus the court need not address

whether the McKinney Act creates an implied right of ac-

tion. Even if the court were to address this issue, however,

the court would conclude that the McKinney Act does not

contain an implied right of action.

In Cort, the United States Supreme Court set forth a four-

part test for determining whether a statute creates an im-

plied right of action. The four factors are:

*Since the court shall grant defendants’ motion to dismiss on the

ground that plaintiffs do not have a right of action under section 1983,

the court need not pass on whether defendants have actually complied

with the McKinney Act.

PRA kis eel RI ila TEAL IRIN TM edt Shea rly

DTA A a Ld eit a Aa) I

33a

[flirst, is the plaintiff one of the class for whose

especial benefit the statute was enacted, that is,

does the statute create a federal right in favor of

the plaintiff? Second, is there any indication of

legislative intent, explicit or implicit, either to create

such a remedy or to deny one? Third, is it consis-

tent with the underlying purposes of the legislative

scheme to imply such a remedy? And fin y, is the

cause of action one traditionally relegated to state

law, in an area basically the concern of the States,

so that it would be inappropriate to infer a cause

of action solely on federal law?

Id. at 78 (internal quotation marks omitted: emphasis in

original).

In the present case, although plaintiffs are in the class for

whose benefit the statute was created, it is the judgment

of the court that the second and third factors of this test

have not been met. As is discussed above, given the overall

scheme of Title VI of the McKinney Act and the lack of

legislative history on this issue,* the court cannot find that

Congress intended to imply a private right of action as a

remedy for this statute. The only duty that Congress intend-

ed to impose was upon the Secretary of Education to grant

funds only to those states which submitted a proper ap-

plication.

In addition, granting an implied right of action in this case

would be inconsistent with the McKinney Act’s overall

statutory scheme. When read in its entirety, it is evident that

the Act is designed to provide federal assistance to those

states that choose to provide these program to help educate

homeless children. These grants are made only if the states

submit a proper application and the decision to grant federal

funds is left to the Secretary upon his review of the states’

applications, laws and policies. Thus, according to the let-

ter of the Act, the remedy for a state’s failure to comply with

its state plan lies with the Secretary of Education, not with

*The parties have not cited, and the court has not uncovered. any

legislative history that is relevant to this inquiry.

ee

34a

parties like plaintiffs. To find an implied right of action in

this case would be the equivalent of the judiciary rewriting

the statute.

D. Equal Protection

The court shall also dismiss plaintiffs’ equal protection

claim. In Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954), the

United States Supreme Court held that the equal protection

guaranties that are provided in the Fourteenth Amendment

to the Constitution are applicable to the District of Colum-

bia through the equal protection component of the Due Pro-

cess Clause of the Fifth Amendment. The Equal Protection

Clause of the Fourteenth Amendment essentially commands

that all persons that are similarly situated should be treated

alike. Cleburn v. Cleburn Living Center, Inc., 473 U.S. 432,

439 (1984) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)).

When a law is challenged on equal protection grounds, the

general rule is that the law is presumed to be valid and will

be sustained if the classification that is drawn by the statute

is rationally related to a legitimate government interest.

Cleburn, 473 U.S. at 440 (cites omitted). In the present case,

both parties agree that education is not a fundamental right

and that no suspect classes are involved. See Kadrmas v.

Dickenson Public Schools, 487 U.S. 451, 457-58 ( 1988). Thus,

both parties recognize that rational basis scrutiny is appro-

priate for evaluating this claim.

Plaintiffs assert that defendants have violated their equal

protection rights because defendants refuse to provide

homeless children with necessary transportation assistance

to and from school but defendants do provide transporta-

tion assistance to mentally and physically handicapped

children. Defendants do treat homeless children differently

than handicapped children for the purposes of providing

transportation assistance to and from school. The court can-

not find, however, that this disparate treatment violates

plaintiffs’ rights to equal protection under the Fifth and

Fourteenth Amendments.

Defendants are required to provide transportation

assistance to handicapped children under the Education for

35a

All Handicapped Children Act, 20 U.S.C. § 1400 et seq. This

Act defines handicapped children as children:

(A) with mental retardation, hearing impairments

including deafness, speech or language impairments,

visual impairments including blindness, serious

emotional disturbances, orthopedic impairment,

autism, traumatic brain injury, other health im-

pairments, or special learning disabilities; and

(B) who, by reason thereof need special education

and related services.

Id. at § 1401(a)(1). The Act provides that transportation is

a ‘related service’ under 20 U.S.C. § 1401(a)(17).

Defendants have a rational basis for treating handicapped

children differently than homeless children for the purposes

of providing transportation assistance to and from school.

Handicapped children, because of their disability, are by

definition less able to travel to school than non-disabled

children. Plaintiffs have failed to show that homeless

children, by virtue of their homelessness alone, are physically

or mentally less capable of travelling to school than nonhome-

less children.

A separate order shall issue this date.

/s/ Royce C. Lamberth

Royce C. LAMBERTH

United States District Judge

DATE: June 9, 1992.

36a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civit Action No. 92-0910 (RCL)

BRENDA LAMPKIN, AS LEGAL GUARDIAN OF JESSICA LAMPKIN

AND CHRISTINE LAMPKIN, MINORS, et al.

Plaintiffs,

V.

District oF CoLuMBIA, et al,

Defendants.

ORDER

This matter comes before the court upon plaintiffs’ mo-

tion for preliminary injunction and defendants’ motion tc

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

For the reasons stated in the court’s memorandum opinion

of this date, it is hereby ORDERED that

1. Defendants’ motion to dismiss is GRANTED.

2. Plaintiffs’ motion for preliminary injunction is

DENIED as moot.

3. This case stands DISMISSED WITH PREJUDICE

SO ORDERED.

/s/ Royce C. Lamberth

Royce C. LAMBERTH

United States District Judge

DATE: June 9, 1992.

37a

Part B—Education for Homeless Children and Youth

§ 11431. Statement of policy

It is the policy of the Congress that—

(1) each State educational agency shall assure that

each child of a homeless individual and each homeless

youth have access to a free, appropriate public educa-

tion which would be provided to the children of a resident

of a State and is consistent with the State school atten-

dance laws;

(2) in any State that has a residency requirement as

a component of its compulsory school attendance laws

or other laws, regulations, practices or policies that may

act as a barrier to the enrollment, attendance, or suc-

cess in school of homeless children and homeless youth,

the State will review and undertake steps to revise such

laws to assure that the children of homeless individuals

and homeless youth are afforded a free and appropriate

public education.

(3) homelessness alone should not be sufficient reason

to separate students from the mainstream school envi-

ronment.

(Pub.L. 100-77, Title VII, § 721, July 22, 1987, 101 Stat.

525; Pub.L. 101-645, Title VI, § 612, Nov. 29, 1990, 104 Stat.

4735.)

§ 11432. Grants for State and local activites for the educa-

tion of homeless children and youth

(a) General authority

The Secretary of Education is, in accordance with the pro-

visions of this section, authorized to make grants to States

to carry out the activities described in subsections (c), (d),

and (e) of this section.

(b) Allocation and reservation of amounts

* * *

(c) Authorized activities

Grants under this section shall be used—

(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 and homeless youths that enable such chidlren

and youths to enroll in, attend, and achieve success in

school;

(3) toestablish or designate an Office of Coordinator

of Education of Homeless Children and Youth in accor-

dance with subsection (d) of this section;

(4) to prepare and carry out the State plan described

in subsection (e) of this section:

(5) to develop and implement programs for school

personnel to heighten awareness of specific problems of

the education of homeless children and youth; and

(6) if amounts appropriated for the applicable fiscal

year exceed the amount appropriated for fiscal year 1990

under this section, to provide grants to local educational

agencies for purposes of this section, and if such amounts

appropriated do not exceed the amount appropriated for

fiscal year 1991, the State education agency, at the

discretion of such agency, may provide such grants.

(d) Functions of the Office of Coordinator

The Coordinator of Education of Homeless Children and

Youth established in each State shall—

(1) dnce every 2 years, gather data on the number and

location of homeless children and youth in the State, and

such data gathering shall include number of homeless

children and homeless youths enrolled in schools in the

State, determined through random sampling or other

statistical methods that ensure that such children and

youths are not overtly identified as being homeless, the

nature and extent of problems of access to, and place-

ment of, homeless children and homeless youth in ele-

39a

mentary and secondary schools, the difficulties in iden-

tifying the special needs of such chidlren, and any pro-

gress made by the State educational agency and local

educational agencies within the State in addressing such

problems and difficulties;

(2) develop and carry out the State plan described in

subsection (e) of this section;

(3) prepare and submit to the Secretary not later than

December 31, 1991, and on December 31 of every second

year thereafter a report on the data gathered pursuant

to paragraph (1);

(4) facilitate coordination between the State education

agency, the State social services agency, and other agen-

cies providing services to homeless children and youth

and their families; and

(5) develop relationships and coordinate with other

relevant education, child development, or preschool pro-

grams and providers of services to homeless children,

homeless families, and runaway and homeless youths (in-

cluding domestic violence agencies, shelter operators,

transitional housing facilities, runaway and homeless

youth centers, and transitional living programe for

homeless youths) in order to improve the provision of

comprehensive services to homeless children and

homeless youths and the families of such children and

youths.

To the extent that reliable current data is available in the

State, each coordinator described in this subsection may use

such data to fulfill the requirements of paragraph (1).

(e) State plan

(1) Each state shall adopt a plan to provide for the educa-

tion of each homeless child or homeless youth within the

State which will contain provisions designed to—

(A) authorize the State educational agency, the local

educational agency, the parent or guardian of the

homeless child, the homeless youth, or the applicable

40a

social worker to make the determinations required under

this section;

(B) provide procedures for the prompt resolution of

disputes regarding the educational placement of

homeless children and youth;

(C) develop programs for school personnel (including

principals, attendance officers, teachers, and enrollment

personnel), to heighten the awareness of such personnel

of the specific educational needs of runaway and

homeless youths; and

(D) ensure that homeless children and homeless

youths who meet the relevant eligibility criteria are able

to participate in Federal, State, or local food programs.

(E) ensure that homeless children and homeless youths

who meet the relevant eligibility criteria are able to par-

ticipate in Federal, State, or local before- and after-school

care programs and provide for the disclosure of data con-

cerning the participation of such children in such pro-

_ grams in plans submitted by the State after the initial

plan of the State;

(F) address problems set forth in the report provided

to the Secretary under subsection (d)(3) of this section;

(G) address problems with respect to the education of

homeless children and homeless youths, including pro-

blems caused by—

(i) transportation issues; and

(ii) enrollment delays which are caused by—

(I) immunization requirements;

(II) residency requirements;

(III) lack of birth certificates, school records,

or other documentation;

or

(IV) guardianship issues;

(H) demonstrate that the State and local educational

agencies in the State have developed and will review and

revise policies to remove barriers to the enrollment and

4la

retention of homeless children and homeless youths in

schools of the State; and

(I) ensure that the State educational agency and local

educational agencies within the State will adopt policies

and practices to ensure that homeless children and

homeless youths are not isolated or stigmatized.

(2) Each plan adopted under this subsection shall assure,

to the extent practicable under requirements relating to

education established by State law, that local educational

agencies within the State will comply with the requirements

of paragraphs (3) through (9),

(3(A) The local educational agency of each homeless child

and each homeless youth shall either—

(i) continue the child’s or youth’s education in the

school of origin—

(I) for the remainder of the academic year; or

(II) in any case in which a family becomes

homeless between academic years, for the

following academic year; or

(ii) enroll the child or youth in any school that

nonhomeless students who live in the attendance

area in which the child or youth is actually liv-

ing are eligible to attend;

whichever is in the child’s best interest or the

youth’s best interest.

(B) In determining the best interests of the child or

youth for purposes of making a school assignment under

subparagraph (A), consideration shall be given to a request

made by a parent regarding school selection.

(C) For purposes of this paragraph, the term ‘“‘school of

origin”’ shall mean the school that the child or youth at-

tended when permanently housed, or the school in which

the child or youth was last enrolled.

(4) The choice regarding placement shall be made

regardless of whether the child or youth is living with the

42a

homeless parents or has been temporarily placed elsewhere

by the parents. {

(5) Each homeless child shall be provided services com-

parable to services offered to other students in the school

selected according to the provisions of paragraph (3), in-

cluding transportation services, educational services for

which the child meets the eligibility criteria, such as com-

pensatory educational programs for the disadvantaged, and

educational programs for the handicapped and for students

with limited English proficiency; programs in vocational

education; programs for the gifted and talented; and school

meals programs.

(6) Any record ordinarily kept by the school, including im-

munization records, academic records, birth certificates,

guardianship records, and evaluations for special services

or programs, of each homeless child or youth shall be

maintained—

(A) so that the records are available, in a timely fashion,

when a child or youth enters a new school district; and

(B) in a manner consistent with section 1232g of Title

20.

(7) Each local educational agency serving homeless

children or youth that receives assistance under this sub-

chapter shall coordinate with local social services agencies,

and other agencies or programs providing services to such

children or youth and their families.

(8) Each local educational agency that receives assistance

under this subchapter shall designate a homelessness liaison

to ensure that—

(A) homeless children and youth enroll and succeed in

the schools of that agency; and

(B) homeless families, children and youth receive educa-

tional services for which they are eligible, and referrals to

health care services, dental services, mental health services,

and other appropriate services.

43a

State coordinators and local educational agency liaisons shall

inform school personnel, service providers and advocates

working with homeless families of the duties of the liaisons.

(9) Each State and local educational agency shall review

and revise any policies that may act as barriers to the enroll-

ment of homeless children and youth in schools selected in

accordance with paragraph (3). In reviewing and revising

such policies, consideration shall be given to issues concern-

ing transportation, requirements of immunization, residen-

cy, birth certificates, school records, or other documentation,

and guardianship. Special attention shall be given to ensur-

ing the enrollment and attendance of homeless children and

youths who are not currently attending school.

(f) Application

No State may receive a grant under this section unless the

State educational agency submits an application to the

Secretary at such time, in such manner, and containing or

accompanied by such information as the Secretary may

reasonably require.

(g) Authorization of appropriations

(1) There is authorized to be appropriated to carry out this

section $50,000,000 for fiscal year 1991, and such sums as

may be necessary for each of the fiscal years 1992 and 1993.

(2) The State educational agency may reserve not to ex-

ceed 5 percent of the amount received by such agency under

this section in each fiscal year, or an amount equal to the

amount received by such State agency for State activities

under this section in fiscal year 1990, whichever is greater,

to conduct activities under paragraphs (1) through (5) of

subsection (c) of this section.

(3A) In any fiscal year in which the amount appropriated

under paragraph (1) does not equal or exceed $100,000,000,

the State educational agency shall use funds not otherwise

reserved under paragraph (2) to award grants to local educa-

tional agencies in accordance with subsection (c)(6) of this

section.

44a

(B) In any fiscal year in which the amount appropriated

under paragraph (1) equals or exceeds $100,000,000, the

State educational agency shall use funds not otherwise

reserved under paragraph (2) to allocate to each local educa-

tional agency an amount that bears the same ratio to

amount not otherwise reserved as the aggregate amount

received by such local educational agency under part A

of chapter 1 of title I of the Elementary and Secondary

Education Act of 1965 [20 U.S.C.A. § 2711 et seq.] for such

fiscal year bears to the aggregate amount received by all

local educational agencies in the State for purposes of

carrying out such part for such fiscal year.

(4) Sums appropriated in each fiscal year shall remain

available for the succeeding fiscal year.

(Pub.L. 100-77, Title VII, § 722, July 22, 1987, 101 Stat.

525, amended Pub.L. 100-628, Title VII, § 702(a), Nov. 7,

1988, 102 Stat. 3245; Pub.L. 101-625, Title VI, § 612(b), Nov.

29, 1990, 104 Stat. 4735.)

§ 11433. Local educational agency grants for the education

of homeless children and youth

(a) General authority

(1) Grantees and purpose of grants

The State educational agency shall, in accordance with

section 11432(c)(6) of this title and from amounts made

available to such agency under section 11432 of this title,

make grants to local educational agencies for the purpose

of facilitating the enrollment, attendance and success of

homeless children and youths in schools.

(2) Use of grants

Unless otherwise specified, services under paragraph

(1) may be provided through programs on school grounds

or at other nonsectarian facilities. Where services are pro-

vided through programs on school grounds, such services

may also be made available to children or youths who are

determined by the local educational agency to be at risk

of failing in or dropping out of schools, except that priori-

45a

ty for such services shall be given to homeless children

and homeless youths. To the maximum extent prac-

ticable, services shall be provided though existing pro-

grams and mechanisms that integrate homeless

individuals with nonhomeless individuals.

(b)

(3) Regular academic program

Services provided under his section are not intended

to replace the regular academic program.

Authorized activities

(1) Primary activities

Not less than 50 percent of amounts provided under

a grant under this section shall be used to provide tutor-

ing, remedial education services, or other education ser-

vices to homeless children or homeless youths.

(2) Related activities

Not less than 35, nor more than 50, percent of the

amounts provided under a grant under this section may

be used for activities that may include—

(A) the provision of expedited evaluations of the

strengths and needs of homeless children and

homeless youths, including needs and eligibility for

programs and services (including gifted and talented

programs, special education programs, programs for

students with limited English proficiency, and

remedial services); -

(B) professional development for educators and

other school personnel that is designed to develop

awareness and sensitivity to the needs of homeless

children and homeless youths and rights of such

children and youths under this chapter;

(C) the provision of referral services to homeless

children and homeless youths for medical, dental,

mental, and other health services;

(D) the provision of assistance to defray the excess

cost of transportation for students not provided

under section 11432(e)(5) of this title and not other-

wise provided through Federal, State, or local fund-

46a

ing, where necessary to enable students to attend the

school selected under section 11432(e)(3) of this title;

(E) the provision of developmentally appropriate

early childhood programs for preschool age children;

(F) the provision of before- and after-school and

summer programs for homeless children or homeless

youths in which a teacher or other qualified individual

provides tutoring, homework assistance, and super-

vision of educational activities;

(G) where necessary, the payment of fees and other

costs asssociated with tracking, obtaining, and

transferring records necessary to enroll homeless

children or homeless youths in school, including birth

certificates, immunization records, academic records,

guardianship records, and evaluations for special

programs or servcies;

(H) the provision of parent education and training

to the parents of homeless children and homeless

youths about the rights of and resources available

to such children and youths;

(I) the development of coordination between

schools and agencies providing services to homeless

children and homeless youths;

(J) the provision of counseling, social work and

psychological services, including violence counseling,

and referrals for such services;

(K) activities to address the particular needs of

homeless children and homeless youths that may

arise from domestic violence;

(L) activities to develop and implement programs

for school personnel to heighten the awareness of

such personnel of the specific educational needs of

runaway and homeless youths;

‘M) the adaptation of space and the purchase of

supplies for nonschool facilities made available under

subsection (a)(2) of this section to provide services

under this subsection;

47a

(N) the provision of school supplies to be

distributed at the shelter or temporary housing

facilities; and

(OQ) the provision of such other extraordinary or

emergency assistance determined by the Secretary

as essential to enable homeless children and youth

to attend school.

(3) Eligibility

No State or local educational agency may receive a

grant under this section unless the State in which the

agency is located has submitted a State plan as required

by section 11432(e) of this title.

(c) Awards

(1) Basis

Except as provided in section 11432(g)(3)(B) of this title;

from amounts appropriated for each fiscal year under sec-

tion 11432(g) of this title, the State educational agency

may award grants under this section to local educational

agencies submitting an application under subsection (d)

of this section on the basis of the need of such agencies.

(2) Determination

In determining need under paragraph (1), the State

educational agency may consider the number of homeless

children and homeless youth enrolled in preschool,

elementary, and secondary schools within the area served

by the agency, and shall consider the needs of such

children and youth, and the ability of the agency to meet

such needs. Such agency may also consider—

(A) the extent to which the proposed use of funds would

facilitate the enrollment, retention, and educational success

of homeless children and youth;

(B) the extent to which the application reflects coordina-

tion with other local and State agencies that serve homeless

children and youth, as well as the State plan required by sec-

tion 11432(e) of this title;

Pie

48a

(C) the extent to which the applicant exhibits in

the application and in current practice a commitment

to education for all homeless children and youth in

its jurisdiction; and

(D) other criteria as the agency determines appro-

priate.

(d) Application

(1) In general

A local educational agency that desires to receive a

grant under this section shall submit an application to

the State educational agency at such time, in such man-

ner, and containing or accompanied by such information

as the State agency may reasonable require according to

guidelines issued by the Secretary. Each such applica-

tion shall include—

(A) a description of the services and programs for

which assistance is sought and the problems sought

to be addressed through the provision of such ser-

vices and programs;

(B) assurances that the applicant complies with or

will use requested funds to come into compliance with

paragraphs (3) through (9) of section 11432(e) of this

title;

(C) an assurance that assistance under the grant

will supplement and not supplant funds used before

the award of the grant for purposes of providing ser-

vices to homeless children and homeless youths; and

(D) a description of policies and procedures that

the agency will implement to ensure that activities

carried out by the agency will not isolate or

stigmatize homeless children and homeless youth.

(3)' Terms of awards

Grants awarded under this section shall be for terms

of not to exceed 2 years.

‘So in original. There was no subpar. (2) enacted.

49a

(e) Reports

Each State educational agency that receives a grant under

this section for any fiscal year shall, as part of the plan of

the State submitted under section 11432(c)(4) of this title,

provide to Secretary data concerning—

(1) the number of homeless children and homeless

youths served with assistance provided under the grant

under this section; and

(2) a description of the success of the program under

this section in allowing homeless children and homeless

youths to enroll in, attend, and succeed in school.

(Pub.L. 100-77, Title VII, § 723, July 22, 1987, 101 Stat.

527; Pub.L. 100-628, Title VII, § 702(b), Nov. 7, 1988, 102

Stat. 3245; Pub.L. 101-645, Title VI, 612(c), Nov. 29, 1990,

104 Stat. 4739.)

§ 11434. National responsibilites

(a) General accounting office

The Comptroller General of the United States shall per-

pare and submit to the Congress not later than June 30, 1988,

a report on the number of homeless children and youth in

all States.

(b) Secretarial responsibilities

(1) The Secretary shall monitor and review compliance

with the provisions of this part in accordance with the

provisions of the General Education Provisions Act [20

U.S.C.A. § 1221 et seq.]. In reviewing the State plans sub-

mitted by the State educational agencies under section

11432(e) of this title, the Secretary shall evaluate whether

State laws, policies, and practices described in such plans

adequately address the problems of homeless children and

homeless youth relating to access to education and place-

ment as described in such plans.

(24A) The Secretary, in consultation with persons and

organizations that are knowledgeable about the needs of

eC

50a

homeless children and youth, shall, through the awarding

of a grant, or through entering into a contract or

cooperative agreement, conduct a study to determine the

best means of identifying, locating, and counting

homeless children and youth for the purposes of this part.

Such persons and organizations to be consulted shall in-

clude representatives of State coordinators, local educa-

tional agencies with substantial numbers of homeless

children and youth, local government agencies with

responsibility for administering homeless shelters, and

advocacy groups representing the interests of homeless

children and youth. The Secretary shall also consult with

the Secretary of Health and Human Services and the

Secretary of Housing and Urban Development, as ap-

propriate, in carrying out this paragraph.

(B) The study conducted under subparagraph (A)

shall consider—

(i) the appropriate definition of the terms

‘‘homeless child” and “‘homeless youth”’;

(ii) the experience of the 1990 Census in iden-

tifying, locating, and counting homeless children

and youth;

(iii) appropriate methodolgies for identifying,

locating, and counting such children and youth,

including using schools, shelters, and other social

service agencies to collect data; and

(iv) the projected accuracy of the methodolo-

gies identified in clause (iii), and the costs

associated with the use of each methodology;

to determine the number of homeless children and

youth in the United States to create as accurate an

account as possible of the number, location, and iiv-

ing circumstances of such children and youth, in-

cluding the number of such children and youth that

are attending school regularly, part-time, or not at

all, and reasons for the nonattendance of such

children and youth.

5la

(CXi) Not later than 240 days after November 29,

1990, the Secretary shall prepare and submit, to the

appropriate committees of Congress, a report con-

taining the results of the study conducted under sub-

paragraph (A) and the estimated costs of making the

estimates required under clause (ii).

(ii) Not later than December 1, 1992, the Secre-

tary, in consultation with the appropriate com-

mittees of Congress, and through the use of

appropriate statistical methodology, shall,

through a grant, contract or cooperative agree-

ment, determine accurate estimates of the

number of homeless children and youth through-

out the Nation and the number of such children

and youth attending school.

(D) The Secretary may reserve not more than

$250,000 from amounts appropriated under section

11432(g) of this title in 1991 to carry out the study

required under subparagraph (A).

(E) There are authorized to be appropriated such

sums as may be necessary in 1992 to perpare the re-

port and estimates required under subparagraph (C).

(3) The Secretary shall provide such support and

technical assistance to the State educational agencies as

is required by such agencies to carry out their respon-

sibilities under this part.

(4) The Secretary shall prepare and submit a report to

the Congress on the programs and activities authorized

by this part at the end of each fiscal year.

(5) The Secretary shall compile and submit a report to

the Congress containing the information received from

the States pursuant to section 11432(d)(3) of this title

within 45 days of its receipt.

(5)' The Secretary shall conduct evaluation and dissem-

snation activities of programs designed to meet the educa-

tional needs of homeless elementary and secondary school

students.

' So in orginal.

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(6) The Secretary shall require applications for grants

under this part to be submitted to the Secretary not later

than the expiration of the 60-day period beginning on the

date that funds are available for purposes of making such

grants and shall make such grants not later than the ex-

piration of the 120-day period beginning on such date.

(7) The Secretary, based on the infomation received

from the States and information gathered by the

Secretary under paragraph (1), shall determine the ex-

tent to which State educational agencies are ensuring

that each homeless child and homeless youth has access

toafreear o2priate public education as described in sec-

tion 11431(1) of this title.

(Pub.L. 100-77, Title VII, § 724, July 22, 1987, 101 Stat.

528; Pub.L. 101-645, Title VI, § 612(d), Nov. 29, 1990, 104

Stat. 4742.)

§ 11435. Definitions

As used in this part—

(1) the term ‘‘Secretary’’ means the Secretary of

Education; and

(2) the term ‘“‘State’’ means each of the several States,

the District of Columbia, the Commonwealth of Puerto

Rico, the Virgin Islands, Guam, American Samoa, and

the Commonwealth of the Northern Mariana Islands.

(Pub.L. 100-77, Title VII, § 726, formerly § 725, July 22,

1987, 101 Stat. 528; Pub.L. 101-628, Title VII, § 702(c), Nov.

7, 1988, 102 Stat. 3245; renumbered § 726 Pub.L. 101-645,

Title VI, $ 613(1), Nov. 29, 1990, 104 Stat. 4743.)

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