and the relevant authorized activities are under the auspices of the Secretary of Education. 42 U.S.C. § 11432(a). The state is charged with effectuating a plan to accomplish the objectives of the Act, but not with administering the Act itself.
Defendants' third argument is that an individual, before he or she is characterized as homeless, must meet certain income eligibility requirements. "A homeless individual shall be eligible for assistance under any program provided by this chapter, only if the individual complies with the income eligibility requirements otherwise applicable to such program." 42 U.S.C. § 11302(b)(1). Consequently, argues the District, there must first be a process of verifying the information in the family's application for shelter services. This is a misreading of the plain language of the statute. Only if there are income eligibility requirements otherwise applicable to a program, will participation be restricted. Defendants have offered no authority, and the court has found none, that establishes an income threshold for access by homeless children to a free public education.
There are references to eligibility criteria for food programs and pre- and post-school care programs under 42 U.S.C. § 11432(e)(1)(D) & (E). There is ambiguous reference to "educational services for which [homeless families] are eligible" under § 11432(e)(8)(B). And there is more specific reference in § 11432(e)(5) to "educational services for which the child meets the eligibility criteria, such as compensatory educational programs for the disadvantaged, and educational programs for the handicapped and for students with limited English proficiency." But the express obligation that the District "ensure that homeless children and youth enroll . . . in the schools" is unequivocal and unqualified. Id. § 11432(e)(8)(A).
The court finds that plaintiffs are entitled to injunctive relief. Specifically, the District must identify homeless children at the time they first arrive at the OESSS intake center, and refer these children to TSTAB within 72 hours for requisite educational services while they are on the waiting list and remain homeless. To the extent that the District unearths income criteria properly applied to educational services under the McKinney Act, and if implementing these criteria would prolong a 72-hour deadline, the District may move for reconsideration of the court's order as to the specific services involved. For those families currently on the waiting list for shelter, defendants shall identify their homeless children and refer them for educational services within two weeks of this date.
As plaintiffs have observed, accelerating the timetable for identification of homeless children should not be an overly burdensome task, nor is it outside the scope of procedures that the District presently has in place. Staff workers at OESSS already decide whether families on the waiting list are homeless in order to facilitate a double-up living arrangement until the families enter Center City Hotel. The District concedes that its eligibility investigations can be performed within 24 hours; families whose waiting list number comes up are interviewed and, if eligible, placed in a shelter the very same day. Delays might occasionally be prompted by the requirement for additional documentation, beyond what is supplied by the family at the initial intake interview. An extra 48 hours should be ample time to resolve such matters.
VII. THE DISTRICT'S TRANSPORTATION POLICIES
The District's current policy is to distribute public transportation tokens to homeless children aged 5 to 18 who must travel more than 1.5 miles to school. Tokens are distributed at the shelter once each week. Plaintiffs maintain that the policy is inadequate on its face because it does not ensure that children can attend schools in their best interest to attend. Furthermore, plaintiffs contend that tokens alone will not satisfy the statutory mandate. Younger children cannot travel alone to school
; parents seeking or holding employment cannot accompany their children to school; and long commutes on public transportation have forced some children to transfer to less desirable schools closer to their shelter.
Defendants respond that the McKinney Act requires only that "each homeless child shall be provided services comparable to services offered to other students in the school . . . including transportation services." 42 U.S.C. § 11432(e)(5) (emphasis added). Since the District does not offer transportation to non-homeless students, it need not, say defendants, offer transportation to the homeless. Plaintiffs reply that non-homeless children, assigned to schools within walking distance of their homes, do not require transportation; while the homeless, relocated to a shelter outside their school's area, cannot walk to school. In order to be "comparable," homeless and non-homeless must be put in nearly the same situation.
Other sections of the statute dispense with the comparability criterion. For example, the District must "address problems with respect to the education of homeless children and homeless youths, including problems caused by . . . transportation issues." Id. § 11432(e)(1)(G). Also, the District must "review and revise any policies that may act as barriers to . . . enrollment . . . . In reviewing and revising such policies, consideration shall be given to issues concerning transportation." Id. § 11432(e)(9).
The United States Department of Education has provided further evidence that "comparability" is an incomplete standard. In its May 1991 Memorandum to State Coordinators for Education of Homeless Children and Youth, the Department stated:
Even if "comparable" services are provided, lack of adequate transportation may still act as a barrier to school attendance by homeless children. Many neighborhood schools, for instance, may offer no transportation services at all. Homeless children who attend that school and are temporarily housed some distance from it would find lack of transportation a barrier to attendance.