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March 7, 1995

BRENDA LAMPKIN, as legal guardian of Jessica Lampkin and Christine Lampkin, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: ROYCE C. LAMBERTH

 Plaintiffs are homeless mothers in their capacity as legal guardians for their school-age children. They seek timely provision of educational services, including transportation to and from school, for homeless children in the District of Columbia. Defendants have moved to dismiss the complaint, or alternatively for summary judgment. Plaintiffs filed a cross-motion for summary judgment. After giving consideration to the filings and oral arguments of counsel, the relevant law, and for the reasons more fully set forth below, the court DENIES defendants' motion and GRANTS plaintiffs' cross-motion.

 Today's opinion marks one modest step in recognition of sentiments expressed by the Supreme Court more than forty years ago. Education is the "very foundation of good citizenship. . . . It is a principal instrument in awakening the child to cultural values . . . and in helping him to adjust normally to his environment. . . . It is doubtful that any child may reasonably be expected to succeed in life if he is denied [this] opportunity." Brown v. Board of Education, 347 U.S. 483, 493, 98 L. Ed. 873, 74 S. Ct. 686 (1954).


 Plaintiffs are entitled to declaratory and injunctive relief. The court hereby finds that defendants have violated 42 U.S.C. §§ 11432(e)(3), (8) & (9) by failing to address educational needs of homeless children in a timely fashion. The court further finds that defendants have violated 42 U.S.C. §§ 11432(e)(1)(G) & (9) by failing to provide homeless children with access to adequate transportation to and from school.

 The court today has granted plaintiffs' motion, and responded to selected elements of the relief sought therein. Plaintiffs shall be deemed to have adopted their current prayer for relief, in an amalgam of its broad and narrow form, as a proxy for that which appeared in their original pleading. The relief granted today is dispositive with respect to the issues raised in the complaint.

 Injunctive relief shall be structured as follows: First, the District must identify homeless children at the time they first arrive at an intake center, and refer these children within 72 hours for requisite educational services, including transportation. Second, the District must offer bus tokens to all homeless children who travel more than 1.5 miles to attend primary or secondary school; offer tokens to a homeless parent or other designated adult escort who accompanies a homeless child to or from school; and eliminate any delays occasioned by once-a-week distribution of tokens at homeless shelters. Alternatively, the District may, if it prefers, provide equivalent transportation services through the medium of a dedicated bus system in lieu of public transit. Details of these directives are elaborated in Parts VI and VII below.


 Because the parties have submitted evidence outside of the complaint, the court will treat defendants' motion as one for summary judgment pursuant to Fed. R. Civ. P. 56, rather than for dismissal under Fed. R. Civ. P. 12(b)(6). Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the non-movant "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322.


 Plaintiffs in this case are a group of homeless mothers, as legal guardians for their minor school-aged children, and the National Law Center on Homelessness and Poverty. Due to the changing population of the homeless in the District of Columbia, the list of plaintiffs has varied; families who are no longer homeless have withdrawn from this action, and several recently homeless families have joined as plaintiffs. Defendants are the District of Columbia, the Mayor, the District of Columbia Public Schools, and the Superintendent of Schools (collectively, the "District").

 On April 22, 1992, plaintiffs brought this action against the District under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. Plaintiffs maintained that the District was in violation of the Stewart B. McKinney Homeless Assistance Act, 42 U.S.C. § 11301 et seq. (1988 & Supp. IV 1992) ("McKinney Act" or the "Act"). The District moved to dismiss the complaint on the grounds that there was no right of action to enforce the McKinney Act under 42 U.S.C. § 1983. *fn3" On June 9, 1992, this court granted defendants' motion. Lampkin v. District of Columbia, No. 92-0910 (D.D.C. June 9, 1992). The District of Columbia Circuit reversed and remanded, concluding that the McKinney Act confers rights that are enforceable under section 1983. *fn4" Lampkin v. District of Columbia, 307 U.S. App. D.C. 155, 27 F.3d 605, 612 (D.C. Cir.), cert. denied, 130 L. Ed. 2d 493, U.S. , 115 S. Ct. 578 (1994).

 Plaintiffs claim two specific transgressions of the McKinney Act in support of their motion for summary judgment. First, the District purportedly fails to address the educational needs of homeless children until some significant time after they become homeless, in violation of 42 U.S.C. §§ 11432(e)(3), (8) & (9). Second, the District does not provide adequate transportation to and from school for homeless children, in violation of 42 U.S.C. §§ 11432(e)(1)(G) & (9).

 Defendants counter that they are in compliance with the Act; they have policies and procedures that assure homeless students in the District access to free public education at schools determined to be in their "best interest" *fn5" ; and the District provides greater transportation assistance to homeless students than to non-homeless students.


 The District's relevant policies and procedures that address the educational needs of homeless children are enumerated below. Where defendants expand upon or contradict plaintiffs' version of a particular procedure, the differences are noted; but none of these assorted factual disputes are material to the court's resolution of the legal issues.

 1. A homeless family first applies for shelter at the District's Office of Emergency Shelter and Support Services ("OESSS"). At that time, an intake worker interviews the applicant and determines the number and ages of any children in the family. The applicant completes a screening questionnaire and is informed of any additional documents that must be obtained before shelter availability is finally determined.

 2. The family is not immediately placed in a shelter, but is given a number on a waiting list. Once the number comes to the top of the list, the family returns to OESSS. Then, if the family is determined to be eligible for emergency shelter, it enters the first phase of the District's shelter system, the Center City Hotel. Defendants observe that the information on a family's application must be verified before the family can qualify for shelter services. Once the verification process is complete, the family enters Center City Hotel the very same day.

 3. The Transitory Students Technical Assistance Branch ("TSTAB") is the designated homelessness liaison for the District of Columbia Public Schools. TSTAB does not assume responsibility for addressing the educational needs of homeless children until they have entered the Center City Hotel, or until TSTAB becomes aware that the children are living in "doubled-up" situations (i.e., a family living with another family because of financial problems such as loss of housing). Illustrative of the lead time before TSTAB assumes control: Six of the plaintiffs waited an average of six weeks prior to entry into the shelter system. At the time of oral argument on February 28, 1995, plaintiff Stevenson had been on the waiting list since October 31, 1994 -- a period of four months.

 4. TSTAB does not have staff at OESSS and does not provide services there. Defendants note, however, that OESSS works with TSTAB and provides educational services for families within 24 hours of the time their eligibility is confirmed. For example, if a child is having a problem getting to school, TSTAB may be asked to provide bus tokens (see numbered paragraph 6 below). And if a child is having a problem with school admission, TSTAB will help the child obtain the necessary documents.

 5. OESSS assists families in locating a temporary place to stay -- e.g., with relatives -- while waiting for their number to come up. But the District does not determine that a family is actually homeless and thus eligible for shelter and other services until the family's number reaches the top of the list and the family returns to OESSS for placement. Once in Center City Hotel, the family is interviewed to resolve educational issues in the "best interest" of their children.

 6. The District does not provide school bus service, except for special education children. However, the District does offer transportation tokens for homeless children who have to travel more than 1.5 miles to school. Tokens are distributed at Central City Hotel on Tuesday. If a family enters the shelter after Tuesday, it normally will not receive tokens until the following Tuesday, although TSTAB will help obtain tokens on an interim basis if the family expresses a need. The District's usual policy is to distribute tokens only after the "best interest" determination is made at Center City. Accordingly, unless OESSS notifies TSTAB of a family's need, tokens will not be available at the intake center. In 1994, there were no such notifications by OESSS to TSTAB. Defendants assert that the reason for no notifications is that families did not express an interim need for tokens. *fn6"

 7. On a discretionary basis, OESSS occasionally provides tokens direct to families who bring their children to the intake center and report difficulty in obtaining transportation to school. Under a limited pilot program funded by the Cafritz Foundation through June 1995, tokens are provided on a discretionary basis to some parents of homeless children, aged five to nine, so they need not travel to and from school alone, providing the parents demonstrate a financial need.


 The McKinney Act 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 reflected 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." Id. § 11431. For purposes of the Act, the District of Columbia is considered to be a state, 42 U.S.C. § 11421(d) (1988), and by accepting federal funds, the District assumed the obligation to comply with the Act's requirements. 42 U.S.C. § 11432(c) (Supp. IV 1992).

 Section 11432(e), captioned "State plan," contains the pertinent provisions for purposes of plaintiffs' summary judgment motion. Paragraph (1) describes in general terms the concerns that are to be addressed by the plan. In particular, subparagraph (G) requires the District to adopt procedures designed to "address problems with respect to the education of homeless children and ...

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