Can you please help me understand why children in state custody do not qualify as homeless per the McKinney-Vento Act?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

This question was posted by a homeless advocate.


Several recent Congressional bills have proposed new ways of defining homeless children.  You can find these bills and lists of the actions Congress has taken in connection with them at   

The proposed Homeless Children and Youth Act of 2011 defines homelessness children and teens as those identified as homeless by school districts, Head Start programs, Runaway and Homeless Youth Act programs (RHYA), and early intervention programs under Part C of the Individuals with Disabilities Education Act. 


In January 2009, the following definition was put forth in HR 29.  Homeless children include “…a youth verified as homeless by the director of a program funded under the Runaway and Homeless Youth Act (42 U.S.C. 5701 et seq.), or a designee of the director…a child verified as homeless under section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401) by the director or the designee of such program, and the family of such child …and a child verified as homeless under section 637 of the Head Start Act (42 U.S.C. 9832) by the director or designee of such program, and the family of such child.

In August 2008 the House of Representatives passed a revised general definition for homeless person has passed in its proposed amendments to the McKinney-Vento act.  The proposed amended act is available at Part 8 about “Homeless Prevention Activities” subpart C encourages “providing family support services that promote reunification  of (i) youth experiencing homelessness with their families and (ii) children and youth involved with child welfare or juvenile justice systems with their parents or guardiens.”  Clearly, this defnition identifies as “homeless” those children and youth who have guardians or are wards of the state through either the child welfare (foster care) system or the juvenile justice system.  The proposed amendments further call on communities to develop “policies and practices relating to the school selection and enrollment of homeless children and youth to ensure that homeless children and youths and their parents are able to exercise their educational rights…” Section 402 Community Homeless Assistance Planning Boards  (f)(B)(i)(II)(dd) .  (Click on the hyperlink above and scroll down to this section.) 


Families experiencing homelessness can view the National Law Center on Homelessness and Poverty’s  many resources about educating homeless children to find out about  the steps of keeping kids in school while making transitions between shelters and other temporary housing arrangements.  Another very informative resource about homeless children’s access to education is The National Association for the Education of Homeless Children and Youth.


Until a new definition is added, you may want to read the history of the existing law.

I looked at legislative history for the McKinney-Vento Act to ascertain how Congress came to define “homeless children and youth” as they did.  I have not found any hearing testimony or research reports that demonstrate the origin of their decision to define homeless children in connection with the places where they are located rather than in connection with the adults (private individuals or agencies) who are responsible for them.  Note that homeless adults are also defined based on their lack of “a fixed, regular, and adequate nighttime residence”. Since the definition (which is quoted further down in this message) goes to the trouble of identifying children “awaiting foster placement”, there’s reason to think that Congress must have thought about kids in state custody.  See 42 USC section 11302   See also the NLCHP’s system for determining whether a child satisfies the current definition of homeless.

I think that the only ways to figure out Congress’s reasons for limiting the definition as they did are:


1. To do more thorough legislative history research than I did.  I merely skimmed hearing testimonies and House Conf. Report 101-951 (2001) for sightings of the phrase “homeless children”.  You can find Congressional hearings from 1995-present for free on the Web at   You can find numerous congressional reports and statements about proposed and existing legislation by searching the terms “homeless children” in the Congressional Record  Note that this link takes you to the 101st Congress which debated amendments to the McKinney Vento Act.  You can change the number 101 in that Web address or click on the session links on the Congressional Record screen to search in a different session of Congress.  The 106th and 107th Congresses also have a lot of relevant material. 


2. To contact your legislators and enlist the help of their legislative aides in tracking down the reason for excluding foster children and kids in other forms of state custody.  Find your representatives and senators.


You might find some useful information in one of these articles:


Strong, James H. and Virginia M. Helm, Legal Barriers to the Education of Homeless Children and Youth: Residency and Guardianship Issues, Journal of Law and Education v. 20 no. 2 pp. 201-218 (Spring 1991)


Ernst, Greg and Maria Foscarinis, Education of Homeless Children: Barriers, Remedies, and Litigation Strategies, Clearinghouse Review vol. 29 no. 7-8 pp. 754-759 (Nov. – Dec. 1995).

 —Ask your public library to get you photocopies of these articles  through Interlibrary Loan.—


Clearly, advocates are still trying to convince Congress to broaden the definition of homeless children and youth.  Here is a quotation from Jim Purcell, Executive Director Council of Family and Child Caring Agencies, speaking at the House Committee on Ways and Means, Subcommittee on Income Security and Family Support on February 27, 2008.


“We also encourage members to weigh in during the reauthorization of No Child Left Behind (NCLB) law. CWLA has joined together with a number of other groups including some of the advocates for homeless children and families to amend and to increase funding for the McKinney-Vento Homeless Children’s program to clarify current law to assure that foster children are covered by the same protections for homeless children.” 


Link to the Child Welfare League of America.

Should you need it for any purpose, though I expect you already have it, here is the definition of “homeless children and youths” from 42 USC Section 11434a:


(2) The term “homeless children and youths’–


(A) means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 11302(a)(1) of this title); and


(B) includes–


(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;


(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 11302(a)(2)(C) of this title);(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in section 6399 of Title 20) who qualify as homeless for the purposes of this part because the children are living in circumstances described in clauses (i) through (iii).