Case: 2:04-cv-705 As of: 09/23/2017 07:40 PM EDT 1 of 26
U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:04−cv−00705−ADS−ARL

CLOSED

National Law Center on Homelessness and Poverty, R.I. et al v. State of New York et al Assigned to: Judge Arthur D. Spatt Referred to: Magistrate Judge Arlene R. Lindsay Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/20/2004 Date Terminated: 03/31/2006 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

National Law Center on Homelessness and Poverty, R.I. individually, and as parent and natural guardian of A.B., a minor child

represented by Cheryl R. Brunetti Goodwin Proctor LLP 599 Lexington Avenue New York, NY 10022 (212) 813−8800 Fax: (212) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher J. Garvey Goodwin Procter LLP 599 Lexington Avenue New York, NY 10022 212−813−8800 Fax: 212−355−3333 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Nee Goodwin Proctor LLP 599 Lexington Avenue New York, NY 10022 (212) 813−8800 Fax: (212) 355−3333 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Clark Goodwin Proctor LLP 599 Lexington Avenue New York, NY 10022 (212) 813−8800 Fax: (212) 355−3333 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah R. Berger Long Island Advocacy Center 490 Wheeler Road Hauppauge, NY 11788 (516)234−0467 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia E. Yanchar Goodwin Proctor LLP 599 Lexington Avenue New York, NY 10022 (212) 813−8800 Fax: (212) 355−3333

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Alan Simes Goodwin, Procter LLP 599 Lexington Avenue New York, NY 10022 212−813−8879 Fax: 212−355−3333 Email: jsimes@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey R. Yousey Goodwin Proctor LLP 599 Lexington Avenue New York, NY 10022 (212) 813−8800 Fax: (212) 355−3333 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica S. Parise Goodwin Procter LLP 599 Lexington Avenue New York, NY 10022 212−813−8800 Fax: (212)355−3333 LEAD ATTORNEY
Karen E. Weinberger Goodwin Proctor LLP 599 Lexington Avenue New York, NY 10022 (212) 813−8918 Fax: (212) 355−3333 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis M. Wasserman Wasserman Steen, LLP 50 Medford Avenue Patchogue, NY 11772 631−758−3367 Fax: 631−758−3369 Email: plsteen@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria Foscarinis National Law Center on Homelessness and Poverty 1411 K Street, N.W. Suite 1400 Washington, DC 20005 202−638−2535 Fax: 202−628−2737 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sozi T. Sozinho Goodwin Proctor LLP 599 Lexington Avenue New York, NY 10022 (212) 813−8800 Fax: (212) 355−3333

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
M.W. individually, and as parent and guardian of Da.W., Di.W., Dq.W., T.H. and S.J., minor children

represented by Cheryl R. Brunetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher J. Garvey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Nee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah R. Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia E. Yanchar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Alan Simes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey R. Yousey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica S. Parise (See above for address) LEAD ATTORNEY

Karen E. Weinberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis M. Wasserman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Foscarinis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sozi T. Sozinho

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
M.K. individually, and as parent and natural guardian of S.P., a minor child

represented by Cheryl R. Brunetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher J. Garvey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Nee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah R. Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia E. Yanchar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Alan Simes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey R. Yousey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica S. Parise (See above for address) LEAD ATTORNEY

Karen E. Weinberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis M. Wasserman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Foscarinis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Sozi T. Sozinho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
T.K. and N.K., individually, and as parent and natural guardian of K.K., on behalf of themselves and all those similarly situated

represented by Cheryl R. Brunetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J. Garvey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Nee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah R. Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia E. Yanchar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Alan Simes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey R. Yousey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica S. Parise (See above for address) LEAD ATTORNEY

Karen E. Weinberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis M. Wasserman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Foscarinis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff R.C. individually, and as parent and natural guardian of J.C., and on behalf of themselves and all those similary situated
Plaintiff C.T. , individually and as grant parent and natural guardian of M.W.

Sozi T. Sozinho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl R. Brunetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Nee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney A. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia E. Yanchar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey R. Yousey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica S. Parise (See above for address) LEAD ATTORNEY
Karen E. Weinberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sozi T. Sozinho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J. Garvey (See above for address)
Jeffrey Alan Simes (See above for address)
represented by Cheryl R. Brunetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Nee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney A. Clark

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia E. Yanchar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey R. Yousey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica S. Parise (See above for address) LEAD ATTORNEY

Karen E. Weinberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sozi T. Sozinho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher J. Garvey (See above for address)

Jeffrey Alan Simes (See above for address)

Plaintiff
D.M. , individually and as parent and natural guardian of M.M.

represented by Cheryl R. Brunetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Nee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney A. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia E. Yanchar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey R. Yousey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica S. Parise (See above for address) LEAD ATTORNEY

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Karen E. Weinberger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sozi T. Sozinho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J. Garvey (See above for address)
Jeffrey Alan Simes (See above for address)

V. Defendant State of New York
Defendant New York State Education Department
Defendant Richard P. Mills as Commissioner of Education of the State of New York

represented by Patricia M. Hingerton NYS Office of the Attorney General 300 Motor Parkway Suite 230 Hauppauge, NY 11788 631−231−2424 Fax: 631−435−4757 Email: Patricia.Hingerton@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Connolly N.Y.S. Office of the Attorney General 300 Motor Parkway Suite 205 Hauppauge, NY 11788 631−231−2178 Fax: 631−435−4757 Email: Susan.Connolly@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patricia M. Hingerton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Connolly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patricia M. Hingerton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Connolly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Sheila Evans−Tranumn as Associate Commissioner of Education of the State of New York
Defendant Patricia McGuirk as Program Manager of the Homeless of the New York State Education Department
Defendant New York State Office of Temporary and Disability Assistance
Defendant Robert Doar as Acting Commissioner of the New York State Office of Temporary and Disability Assistance
Defendant Suffolk County Department of Social Services

represented by Patricia M. Hingerton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Connolly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patricia M. Hingerton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Connolly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan M. Connolly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patricia M. Hingerton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Connolly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lori L. Pack Suffolk County Department of Law 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788−0099 631−853−4049 Fax: 631−853−5306 Email: lori.pack@co.suffolk.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer K. McNamara Suffolk County Attorney's Office H. Lee Dennison Building, 5th Floor 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788−4311 631−853−6187 Fax: 631−853−5306 Email: jennifer.mcnamara@suffolkcountyny.gov ATTORNEY TO BE NOTICED

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Defendant Janet Demarzo as Commissioner of the Suffolk County Department of Social Services Defendant Dan Hickey as Associate Commissioner of the Suffolk County Department of Social Services Defendant Longwood Central School District TERMINATED: 10/07/2004 Defendant Hampton Bays School District TERMINATED: 10/07/2004 Defendant Middle Country School District TERMINATED: 10/07/2004 Defendant Copiague Union Free School District TERMINATED: 10/07/2004 Defendant South Huntington School District TERMINATED: 10/07/2004 Defendant Medford School District TERMINATED: 10/07/2004 Defendant William Floyd School District TERMINATED: 10/07/2004
Defendant Central Islip School District TERMINATED: 10/07/2004
Defendant Bay Shore Union Free School District TERMINATED: 10/07/2004

represented by Sanjay B. Malhotra Ehrlich, Frazer & Feldman 1415 Kellum Place Garden City, NY 11530 (516) 742−7777 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert J. Cimino Lewis, Johs, Avallone, Aviles & Kaufman, LLP 425 Broadhollow Road, Suite 400 Melville, NY 11747 631−755−0101 Fax: 631−755−0117 Email: rjcimino@lewisjohs.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant South Country School District TERMINATED: 10/07/2004
Defendant Brentwood School District TERMINATED: 10/07/2004
Defendant North Babylon School District TERMINATED: 10/07/2004
Defendant Amityville School District TERMINATED: 10/07/2004
Defendant Riverhead School District TERMINATED: 10/07/2004
Defendant John Doe School Districts 1−10

Date Filed 02/20/2004
02/20/2004 02/20/2004

# Docket Text
1 COMPLAINT Summons Issued against Amityville School District, Bay Shore Union Free School District, Brentwood School District, Central Islip School District, Copiague Union Free School District, Janet Demarzo, Robert Doar, John Doe, Sheila Evans−Tranumn, Hampton Bays School District, Dan Hickey, Longwood Central School District, Patricia McGuirk, Medford School District, Middle Country School District, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, North Babylon School District, Riverhead School District, South Country School District, South Huntington School District, State of New York, Suffolk County Department of Social Services, William Floyd School District filing fee $ 150, receipt number 12106, filed by M.K., M.W., National Law Center on Homelessness and Poverty, R.I., T.K.. (Attachments: # 1 Civil Cover Sheet)(Duong, Susan) (Entered: 03/01/2004)
2 ORDER TO SHOW CAUSE by Pltffs − It is Ordered, that the above−named dfts show before this Court, on 2/27/04 @ 1:30 p.m., why an Order should not be issued pursuant to Rule 65 of the FRCP granting preliminary injunction against dfts requiring them to provide transportation to and from school for the pltffs and requiring them to admit and enroll the pltffs in their school district of origin as defined in federal and state law. Ordered that a copy of this Order, together with the papers upon which it is granted be personally served upon the dfts on or before 2/24/04 by 5:00 p.m., and that such service be deemed good and sufficient. (Signed by Judge Arthur D. Spatt on 2/20/04). C/F(Coleman, Laurie) (Entered: 03/03/2004)
3 PROPOSED TEMPORARY RESTRAINING ORDER − Ordered, that Pltffs' motion for a temporary restraining order is hereby granted. Ordered that the dft Suffolk County Department of Social Services (and Janet DeMarzo, as Commissioner of the Suffolk County Department of Social Services), Longwood Central School District, NY State Education Department (and Richard P. Mills, as Commissioner of Education of the State of NY), NYS Office of Temporary and Disability Assistance (and Robert Doar as Acting Commissioner of the NYS Office of Temporary and Disability Assistance) are enjoined to provide transportation for S.P., a minor child, to and from Longwood High School until this matter is heard on pltffs' motion for preliminary injunction. Ordered that the above−named dfts will take all necessary steps to entroll S.P. at Longwood High School and to provide her a public education, including such

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02/20/2004 02/20/2004 02/20/2004 02/20/2004 02/25/2004
02/25/2004

special education services as S.P. has previously been determined to be entitled to; Ordered that this Order shall expire in 10 days from the date of the Order, unless extended for good cause shown. Ordered that no security for costs or damages need be posted. PROPOSED TEMPORARY RESTRAINING ORDER DENIED AS MOOT (Signed by Judge Spatt, on 2/20/04). C/F(Coleman, Laurie) (Entered: 03/03/2004)
4 MOTION to Seal ; Motion to File Under Seal and Limit Disclosure of Certain Identifying Information − Pltffs, M.K. and her daughter S.P. move this court for an order permitting them to file the Affidavit of M.K. in support of their Motion for Temporary Restraining Order and Preliminary Injunction under seal and to keep these documents under seal and immune from public disclosure. Pltffs request that the Affidavit of M.K. be filed under seal, that her residency and all other identifying information be sealed, and that all references to M.K. and her daughter S.P. in public documents be made by initials only. In the event that the Court does not grant the aforementioned relief, the pltff s seek an order that any copies of the Affidavit of M.K. that are made public are redacted to exclude the names, addresses, and other identifying information of the pltffs. Filed by M.K., M.W., National Law Center on Homelessness and Poverty, R.I., T.K.. (Coleman, Laurie) (Entered: 03/03/2004)
5 ORDER granting 4 Motion to Seal − Pursuant to Rule 26(c) of the FRCP, the Family Education Rights and Privacy Act and the Individuals with Disabilities Education Act, I order that the Affidavit of the pltff M.K. be sealed and not made available for public disclosure, that M.K.'s residency and all other identifying information be sealed, and that all references to M.K. and her daughter S.P. in public documents be made by initials only. (Signed by Judge Arthur D. Spatt on 2/20/04). C/F (Coleman, Laurie) (Entered: 03/03/2004)
6 MEMORANDUM OF LAW by M.K., M.W., National Law Center on Homelessness and Poverty, R.I.. Re: In Support of pltffs 2 Order to Show Cause for Temporary Restraining Order and Preliminary Injunction. (Coleman, Laurie) (Entered: 03/03/2004)
7 AFFIDAVIT of Jeffrey A. Simes on behalf of M.K., M.W., National Law Center on Homelessness and Poverty, R.I. Re: In Support of pltff's 2 Order to Show Cause for Temporary Restraining Order and Preliminary Injunction.(Coleman, Laurie) (Entered: 03/03/2004)
13 LETTER dated 2/25/04 from Eric Musselman to Robert C. Heinemann Re: Enclosed for filing and docketing are the Affidavits of Service for the Summons, Complaint, Civil Cover Sheet, Order to Show Cause (OTSC) for Temporary Restraining Order and Preliminary Injunction; Pltffs' Memorandum of Law in Support of OTSC; Affidavit of M.K. in Support of OTSC; Affidavit of Jeffrey A. Simes in Support of OTSC; Proposed Order, Motion to File Affidavit under Seal and Proposed Order on Motion to file Affidavit under Seal; Affidavit of R.I.; Affidavit of M.W.; Affidavit of T.K; served upon the following dfts: Brentwood School District; Suffolk County Department of Social Services; Middle Country School District; Dan Hickey, Associate Commissioner of the Suffolk County Department of Social Services; Janet DeMarzo, Commissioner of the Suffolk County Department of Social Services; South Huntington School District; Central Islip School District; Bay Shore Union Free School District; North Babylon School District: Copiague Union Free School District; Amityville School District; Longwood Central School District; Hampton Bays School District; South Country School District; William Floyd School District; Medford School District; Riverhead School District; NYS Office of Temporary and Disability Assistance; Robert Doar, Acting Commissioner of the NYS Office of Temporary and Disability Assistance; State of NY; New York State Education Department; Richard P. Mills, Commissioner of Education of the State of NY; Sheila Evans−Tranumn, Associate Commissioner of Education of the State of New York; and Patricia McGuirk, Program Manager for the Homeless of the New York State Education Department.(Coleman, Laurie) (Entered: 03/10/2004)
14 SUMMONS Returned Executed by M.K., M.W., National Law Center on Homelessness and Poverty, R.I.. − Copies of Summons, Complaint, Civil Cover Sheet, Order to Show Cause (OTSC) for Temporary Restraining Order and Preliminary Injunction; Pltffs' Memorandum of Law in Support of OTSC; Affidavit of M.K. in Support of OTSC; Affidavit of Jeffrey A. Simes in Support of OTSC; Proposed Order, Motion to File Affidavit under Seal and Proposed Order on Motion to file Affidavit

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02/25/2004 02/26/2004 02/26/2004 03/02/2004
03/02/2004 03/04/2004 03/04/2004 03/04/2004 03/04/2004 03/04/2004

under Seal; Affidavit of R.I.; Affidavit of M.W.; Affidavit of T.K., served upon the following dfts on 2/23/04: Amityville School District; Bay Shore Union Free School District; Brentwood School District; Central Islip School District; Copiague Union Free School District; Janet Demarzo; Hampton Bays School District; Dan Hickey; Longwood Central School District; Medford School District; Middle Country School District; New York State Office of Temporary and Disability Assistance; North Babylon School District; Riverhead School District; South Country School District; South Huntington School District; Suffolk County Department of Social Services; William Floyd School District; Answers due on 3/15/04.(Coleman, Laurie) (Entered: 03/10/2004)
15 SUMMONS Returned Executed by M.K., M.W., National Law Center on Homelessness and Poverty, R.I. − Copies of Summons and Complaint as well as all copies of the papers, motions and affidavits filed in the above captioned action to date was served on 2/20/04 upon the following dfts: Sheila Evans−Tranumn; Patricia McGuirk; Richard P. Mills; New York State Education Department; State of New York; Answer for these dfts due 3/11/2004. (Coleman, Laurie) (Entered: 03/10/2004)
41 LETTER MOTION dated 2/25/04 from Susan Connolly, Assistant Attorney General, to Judge Spatt Re: The above matter is currently scheduled before you on 2/27/04. It is requested that the return date be adjourned for one week to 3/5/04. (Coleman, Laurie) (Entered: 04/13/2004)
ENDORSED ORDER granting the 41 letter application requesting that the return date be adjourned − The Order to Show Cause Hearing for the Preliminary Injunction is adjourned to 3/5/04 @ 1:30 p.m. Ms. Connolly is directed to fax a copy of this Order to all parties in this action. (Signed by Judge Arthur D. Spatt on 2/26/04). EOD #41, C/F, C/M.(Coleman, Laurie) (Entered: 04/13/2004)
12 LETTER MOTION dated 3/1/04 from Christopher Garvey to Judge Spatt Re: In connection with pltff's preliminary injunction motion, scheduled for 3/5/04, I enclose for filing, affidavits of three named pltffs, identified herein by initials T.K., M.W. and R.I. these pltffs have requested that they, like pltff M.K. be allowed to proceed by initials only in this action and that these affidavits be filed with the Court under seal. We ask that the Court accept these documents for filing under seal.(Coleman, Laurie) (Entered: 03/10/2004)
ENDORSED ORDER granting 12 letter application to seal the affidavits of pltffs T.K., M.W. and R.I. − Request to SEAL the Affidavits referred to in this letter GRANTED. In addition, the parties in this action are directed to identify the named−pltffs by initials only. (Signed by Judge Arthur D. Spatt on 3/2/04). EOD #12. C/M(Coleman, Laurie) (Entered: 03/10/2004)
16 LETTER MOTION dated 3/3/04 from Christopher Garvey to Judge Spatt Re: Pltffs request that the Court order that Mr. Keenan and his clients serve opposition papers, if any, upon this office no later than 12 noon tomorrow, via facsimile. (Coleman, Laurie) (Entered: 03/10/2004)
ENDORSED ORDER denying 16 letter application − Request to compel Raymond Keenan and his clients to serve opposition papers upon the pltffs on or before 12 noon on 3/4/04 DENIED. If necessary, the Court will set a briefing schedule with regard to these particular dfts at the Order to Show Cause Hearing on 3/5/04. (Signed by Judge Arthur D. Spatt on 3/4/04). EOD #16. C/F, C/M(Coleman, Laurie) (Entered: 03/10/2004)
17 LETTER dated 3/4/04 from Raymond Keenan to Judge Spatt Re: We received a phone message and a copy of a letter to Your Honor from pltff's counsel, Christopher Garvey, Esq., regarding service of papers in opposition to the request for preliminary injunction. It has been our intention to serve papers in accordance with the applicable rules. However, we have no objection to service via fax by the close of business today. (Coleman, Laurie) (Entered: 03/10/2004)
18 MEMORANDUM OF LAW by Janet Demarzo, Dan Hickey Re: In Opposition to pltff's 2 Motion for a Preliminary Injunction. (Coleman, Laurie) (Entered: 03/10/2004)
19 AFFIDAVIT by Janet Demarzo, Dan Hickey Re: In Opposition to pltffs' 2 Order to Show Cause for a Preliminary Injunction. (Coleman, Laurie) (Entered: 03/10/2004)

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03/04/2004
03/05/2004 03/05/2004 03/05/2004 03/05/2004 03/05/2004 03/05/2004 03/05/2004 03/06/2004
03/06/2004 03/08/2004 03/10/2004 03/10/2004

33 LETTER dated 3/3/04 from Mark Rushfield to Judge Spatt Re: Enclosed please find a courtesy copy of dft Hampton Bays School District's Notice of Motion, Affirmation (submitted both in opposition to the pltffs application for a preliminary injunction and in support of a motion to dismiss and Memorandum of Law, together with the cover letter by which they were filed with the Clerk's Office. (Coleman, Laurie) (Entered: 03/18/2004)
9 MEMORANDUM OF LAW by Robert Doar, Sheila Evans−Tranumn, Patricia McGuirk, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, State of New York Re: In Opposition to pltffs' 2 Order to Show Cause for a Preliminary Injunction. (Coleman, Laurie) (Entered: 03/06/2004)
10 AFFIDAVIT of Kate Ventura on behalf of Robert Doar, Sheila Evans−Tranumn, Patricia McGuirk, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, State of New York Re: In Opposition to pltff's 2 Order to Show Cause for a Preliminary Injunction. (Coleman, Laurie). (Entered: 03/06/2004)
11 MEMORANDUM OF LAW by Pltffs, M.K., M.W., National Law Center on Homelessness and Poverty, R.I. Re: In further Support of their 2 Order to Show Cause for Preliminary Injunction. (Coleman, Laurie) (Entered: 03/09/2004)
34 AFFIDAVIT of Kate Ventura on behalf of New York State Education Department, New York State Office of Temporary and Disability Assistance, State of New York Re: On behalf of the State Dfts' in Opposition to Pltffs' 2 request for preliminary injunctive relief. (Coleman, Laurie) (Entered: 03/18/2004)
35 AFFIRMATION of James H. Pyun on behalf of William Floyd School District Re: In opposition to pltff's 2 application for a preliminary injunction.(Coleman, Laurie) (Entered: 03/19/2004)
36 AFFIDAVIT of Janet Gilmor on behalf of William Floyd School District Re: In opposition to pltff's 2 application for a preliminary injunction. (Coleman, Laurie) (Entered: 03/19/2004)
42 Minute Entry for proceedings held before Arthur D. Spatt : C. Garvey, for Plf; Ray Keenan, for dft.Show Cause Hearing held on 3/5/2004 @1:50 and 3:20. CR Owen Wicker Case called Counsel for ll parties present. OSC argued. Show Cause Hearing set for 3/11/2004 09:00 AM before Judge Arthur D. Spatt. (Barhome, Sydelle) (Entered: 04/22/2004)
24 LETTER MOTION dated 3/4/04 from Christopher Garvey to Judge Spatt Re: In connection with pltffs' preliminary injucntion motion, scheduled for a hearing before Your Honor on 3/5/04. I enclose for filing the affidavits of two putative class members, identified by initial D.M. and J.T. These individuals have requested that they like pltffs, M.K., R.I., M.W. and T.K. be identified by initials only in this action, and that these affidavits be filed with the Court under seal. (Coleman, Laurie) (Entered: 03/10/2004)
ENDORSED ORDER granting pltffs' 24 letter request to seal the Affidavits of two putative class members, D.M. and J.T. − Request to SEAL the enclosed affidavits GRANTED. The parties in this action are directed to identify these individuals only by their initials. (Signed by Judge Arthur D. Spatt on 3/6/04). EOD #24. C/M(Coleman, Laurie) (Entered: 03/10/2004)
46 REDACTED AFFIRMATIONS in OPPOSITION TO ORDER TO SHOW CAUSE FOR A PRELIMINARY INJUNCTION of Laura L. Pack and Donald Reed and REDACTED EXHIBITS, filed by Suffolk County (to replace the ones previously submitted). (Montero, Edher) (Entered: 04/27/2004)
20 AFFIDAVIT of Raymond G. Keenan on behalf of Amityville School District, Middle Country School District, North Babylon School District, South Country School District Re: In Opposition to pltffs' 2 Motion for a Preliminary Injunction. (Coleman, Laurie) (Entered: 03/10/2004)
21 AFFIDAVIT of Maria Taliercio as Assistant Superintendent for Pupil Personnel Services at Middle Country School District Re: In Opposition to pltffs' 2 Request for a

Case: 2:04-cv-705 As of: 09/23/2017 07:40 PM EDT 15 of 26

03/10/2004 03/10/2004 03/10/2004 03/10/2004 03/11/2004 03/11/2004 03/12/2004
03/12/2004
03/17/2004 03/17/2004 04/02/2004

Preliminary Injunction.(Coleman, Laurie) (Entered: 03/10/2004)
22 AFFIDAVIT of Daniel Rose as District Registrar in the North Babylon Union Free School District Re: In Opposition to pltffs' Request for a Preliminary Injunction. (Coleman, Laurie) (Entered: 03/10/2004)
23 AFFIDAVIT of Ken Dellaporta as assistant Director of Student Support Services in the South Country Central School District Re: In Opposition to pltffs' 2 Request for a Preliminary Injunction. (Coleman, Laurie) (Entered: 03/10/2004)
27 AFFIDAVIT of Diana V. Houghton on behalf of Central Islip School UFSD Re: In Opposition to pltff's Motion for Preliminary Injunctive Relief. (Coleman, Laurie) (Entered: 03/12/2004)
28 AFFIDAVIT of Neil M. Block on behalf of Bay Shore Union Free School District, Brentwood School District, Central Islip School District, Copiague Union Free School District, Longwood Central School District, Medford School District, Riverhead School District, South Huntington School District Re: In Opposition to pltffs' Motion for preliminary injunction.(Coleman, Laurie) (Entered: 03/12/2004)
29 AFFIRMATION of Inez Maria Haettenschwiller on behalf of New York State Office of Temporary and Disability Assistance Re: In Opposition to pltff's 2 Order to Show Cause for preliminary injunctive relief. (Coleman, Laurie) (Entered: 03/12/2004)
45 Minute Entry: Before Arthur D. Spatt on 3/11/04 at 9:00 am, civil cause for Order to Show Cause Hearing. Case called. Counsel for all parties present. Court Reporter Harry Rapaport. Order to Show Cause argued and continued to 3/17/04 (Montero, Edher) (Entered: 04/26/2004)
37 LETTER dated 3/12/04 from Sena Kim−Reuter Law Clerk to Judge Spatt to Mark Rushfield, Esq. Re: I am returning your motion to dismiss the complaint and opposition to the pltff's motion for a preliminary injunction, which were filed together, without docketing and filing. As you appear to acknowledge in your letter, dated 3/11/04, Judge Spatt's Individual Rules require that, in general, motions must be fully briefed upon filing. You may refile your motion upon compliance with the Individual Rules. In addition, kindly file your opposition papers separately from your motion. The Court will deem your opposition papers as timely if such papers are filed within ten days of the date of this letter. (Coleman, Laurie) (Entered: 03/29/2004)
38 LETTER dated 3/11/04 from Mark Rushfield to Judge Spatt Re: On 3/3/04 I served asnwering papers concerning the pltff's request for preliminary injunctive relief and a motion to dismiss for lackof subject matter jurisdiction. the motion complied with Local Rule 6.1. As the motion and opposing affidavit were coterminus, they were filed with the Clerk of the Court and a courtesy copy provided to Your Honor. However, I am concerned that in doing so I may have been in noncompliance with your individual rules of practice concerning the motion component of these submissions. I understand that pltff's answering papers are to be served within 10 business days after service of the moving papers, on or about 3/17/04. I presume that under your individual practice rules, I am to secure all the motion papers and file them together once all are ready. At that time, unless instructed otherwise, I shall submit another original set of the initial motion papers I submitted on March 3. Should the Court find the above procedure unacceptable or have any other directions, I would welcome them. (Coleman, Laurie) (Entered: 03/30/2004)
47 Letter from Susan M. Connolly dtd. 3/16/04 to Judge Spatt. Re: The following constitutes comments from defts NYS Education Dept, NYS Office of Temporary & Disability Assistance and the individually named State defts with regard to the proposed Settlement Agreement submitted by plaintiffs. (Montero, Edher) (Entered: 04/27/2004)
59 MINUTE ENTRY before Judge Arthur D. Spatt on 3/17/04 @ 10:45 a.m., for Civil Cause for Order to Show Cause for Preliminary Injunction. Counsel for all sides present. Case called. Motion argued − break for conference (11:15). Adjourned for further conference, date not specified. (Coleman, Laurie) (Entered: 06/17/2004)
39 MOTION to Seal Affidavit of R.C. and Limit Disclosure of Certain Identifying Information − For an order permitting pltffs to file the Affidavit of R.C. in support of

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04/02/2004 04/02/2004
04/05/2004 04/05/2004 04/05/2004 04/18/2004

their Order to Show Cause under seal and to keep these documents under seal and immune from public disclosure. Pltffs request that the Affidavit of R.C. be filed under seal, that her residency and all other identifying information be sealed, and that all references to R.C. and her daughter J.C. in public documents be made by initials only. Filed by M.K., M.W., National Law Center on Homelessness and Poverty, R.I., T.K.. (Coleman, Laurie) (Entered: 04/07/2004)
ENDORSED ORDER granting pltffs' 39 Motion to Seal to Seal the Affidavit of R.C. (Signed by Judge Arthur D. Spatt on 4/2/04). EOD #39, C/M. (Coleman, Laurie) (Entered: 04/07/2004)
48 PROPOSED ORDER TO SHOW CAUSE − It is Ordered that the dfts Suffolk County Department of Social Services, Janet Demarzo, and Dan Hickey (collectively, the "Social Service Dfts') show cause before this Court, why an Order should not be issued pursuant to FRCP Rule 65, granting preliminary injunction against the Social Services dfts requiring them to provide transportation to and from the Sagamore Children's Psychiatric Center for a 30 day program initiated by the William Floyd School District, for J.C., the child of pltff R.C., and for such other relief the Court deems just and proper − APPLICATION DENIED, as the parties have resolved the issue herein. (Signed by Judge Arthur D. Spatt on 4/2/04). C/M. **(Proposed Temporary Restraining Order annexed, return unsigned from Chambers.)**(Coleman, Laurie) (Entered: 05/12/2004)
43 AFFIDAVIT of Service for copies of the First Amended Class Action Complaint for Declaratory and Injunctive Relief, served upon State of New York Office of the Attorney General, Denis McEligot, Esq., Susan M. Connolly, Esq.; Suffolk County Department of Law, Jeltje Dejong, Esq., Laurie Pack, Esq.; Ingerman Smith, L.L.P., Neil M. Block, Esq., Christopher M. Powers, Esq.; Bernard T. Callan, Esq.; Guercio & Guercio, Gary L. Steffanetta, Esq., Raymond G. Keenan, Esq.; Ehrlich, Frazier & Feldman, Florence Frazier, Esq.; Shaw & Perelson LLP, Marc C. Rushfield, Esq.; Kevin Seaman, Esq., on 4/2/04, filed by M.K., M.W., National Law Center on Homelessness and Poverty, R.I., T.K. (Fagan, Linda) (Entered: 04/22/2004)
60 LETTER dated 4/2/04 from Sanjay Malhotra to Judge Spatt Re: Dft William Floyd requests that it be given an opportunity to substantively respond to the complaint by virtue of a Rule 12(b) motion. We seek a briefing schedule from the Court for the submission of such papers. We also seek the Court's guidance on the status of pltff's initial motion for a preliminary injunction in light of our request to file a Rule 12(b) motion. William Floyd requests an opportunity to submit supplemental opposition papers given the additional affidavits filed by pltff's counsel. (Coleman, Laurie) (Entered: 06/17/2004)
61 LETTER dated 4/14/04 from Christopher Garvey to Judge Spatt Re: We represent the pltffs. We received a letter by dft William Floyd's counsel, Sanjay B. Malhotra, to Your Honor dated 4/9/04, regarding our client J.C. and his mother R.C., which letter was our first contact from any dft on this issue. Although we would prefer to spend our time working on the proposed consent decree to ensure that homeless children are properly educated in Suffolk County, we nonethless feel obligated to respond briefly to Mr. Malhotra's letter in order to carlify the record.(Coleman, Laurie) (Entered: 06/18/2004)
62 LETTER dated 4/9/04 from Sanjay Malhotra to Judge Spatt Re: To inform the Court that dfts have just learned that J.C. and his mother have abandoned the homeless shelter on 4/3/04 and informed it that she would not be returning that night. The family has not returned to the shelter since. Thus, DSS has been obligated to discharge them from the shelter and cancel J.C.'s transportation services for next week when school re−opens from the Sprink break. The family's whereabouts are currently unknown to DSS or this office. Accordingly, notwithstanding the agreement reached by the parties in Court on 3/31/04, there will be no transportation services available to J.C. next week should the family return to the school district or to a DSS homeless shelter. William Floyd can no longer guarantee that J.C.'s placement at the special education program will remain open indefinately. As Your Honor is aware, placement of a student in an out−of−district special education program occurs at great cost to the school district. (Coleman, Laurie) (Entered: 06/18/2004)

Case: 2:04-cv-705 As of: 09/23/2017 07:40 PM EDT 17 of 26

04/23/2004 05/05/2004
05/05/2004 05/14/2004 05/19/2004 05/19/2004 05/19/2004
05/19/2004 05/19/2004 05/20/2004 05/21/2004 05/21/2004

44 TRANSCRIPT of Order to Show Cause before Judge Arthur D. Spatt on 3/31/04 @ 3:00 p.m. filed. Court Reporter: Dominick Tursi. (Coleman, Laurie) (Entered: 04/23/2004)
63 LETTER MOTION dated 5/5/04 from Christopher Garvey to Judge Spatt Re: To request that the Court re−schedule the 5/7/04 status conference to 5/14/04 @ 10:00 a.m., in order to allow the New York State dfts the time they have requested for their clients to provide written comments to the revised proposed consent order. We ask the Court that, in the event that the parties reach a settlement agreement at the 5/14/04 conference, the Court proceed to hold a Rule 16 scheduling conference, so that pltffs may proceed with the case, including but not limited to discovery and class certification. (Coleman, Laurie) (Entered: 06/18/2004)
108 LETTER/Fax dated 5/5/04 from Hon. Margaret J. Finerty to Judge Spatt Re: To request a telephone conference with you to discuss the progress of our monitorship, and our report to the Court regarding our activities to date. (Coleman, Laurie) (Entered: 08/12/2004)
64 MINUTE ENTRY before Judge Arlene R. Lindsay on 5/14/04 @ 11:30 a.m., for Civil Cause for Initial Conference. Counsel for all sides present. (Coleman, Laurie) (Entered: 06/18/2004)
49 MINUTE ENTRY before Judge Arlene R. Lindsay on 5/19/04 @ 2:30 p.m., for Civil Cause for Telephone Status Conference. Counsel for all sides present. The parties shall submit the fully−executed proposed pre−trial scheduling order to the undersigned with amendments to paragraphs 5 and 7 as agreed during this conference. So Ordered. C/F (Coleman, Laurie) (Entered: 05/24/2004)
50 LETTER dated 5/19/04 from Susan Connolly Assistant Attorney General to Judge Lindsay Re: I am in receipt of a copy of letter from pltffs to you, seeking entry of a proposed discovery order in this case. On behalf of the state dfts, we strenuosly object to the entry of the proposed order. (Coleman, Laurie) (Entered: 05/24/2004)
51 LETTER dated 5/19/04 from Christopher Garvey to Judge Lindsay Re: We do not ask the Court to grant or deny any relief at this point. Rather, we believe that the Suffolk County Social Services dfts should be required to proceed by formal motion to seek Court approval of for the release of the information they seek. Not only is this procedure contemplated by applicable statutes and/or regulations, but furthermore, it will allow for an orderly process, provide us with time to consult with each of our clients concerning there issues, and otherwise bring matters before the Court in an efficient manner.(Coleman, Laurie) (Entered: 05/24/2004)
ENDORSED ORDER on 51 Letter − Application to proceed by formal motion is denied. A telephone conference will be held on 5/26/04 @ 11:00 a.m. at which time the county may explain the relevance of these materials and their need for same. County to initiate the call. (Signed by Judge Arlene R. Lindsay on 5/19/04). EOD #51. C/F(Coleman, Laurie) (Entered: 05/24/2004)
52 LETTER dated 5/19/04 from Lori Pack Assistant County Attorney to Judge Lindsay Re: It is requested that the attached subpoena be "so ordered" so that this office can obtain certain documents necessary to defend this case. **Resolved by 5/19/04 Order. ** (Coleman, Laurie) (Entered: 05/24/2004)
53 LETTER dated 5/20/04 from Gary Steffanetta to Judge Lindsay Re: To request a telephone conference with you for assistance in resolving an important isssue. (Coleman, Laurie) (Entered: 05/25/2004)
54 LETTER dated 5/21/04 from Jeffrey Simes to Judge Lindsay Re: In response to yesterday's letter to Your Honor from Gary Steffanetta, counsel for various school district dfts, concerning the deposition of Kate Ventura, which is to take place 5/26/04. We can see no reason behind Mr. Steffenetta's letter other than to delay discovery in this case. (Coleman, Laurie) (Entered: 05/25/2004)
55 MINUTE ENTRY before Judge Arlene R. Lindsay on 5/21/04 @ 3:00 p.m., for Civil Cause for Status Conference by telephone. Counsel for all sides present. (Coleman, Laurie) (Entered: 05/25/2004)

Case: 2:04-cv-705 As of: 09/23/2017 07:40 PM EDT 18 of 26

05/21/2004
05/21/2004 05/21/2004 05/21/2004 05/21/2004 05/21/2004 05/21/2004 05/21/2004 05/21/2004 05/21/2004 05/24/2004
05/24/2004

84 MOTION to Certify Class a. Class A: All school aged children ( as defined by New York State Education Law ) who, on or after 9/1/01: 1) have lived, or are living or will live in Suffolk County, New York; and 2) during such period have been, are or will be "homeless" as defined in the McKinney−Vento act, 42 U.S.C. 1143A. b. All parents, guardians or persons in a parental relationship for children in Class A, who, on or after 9/1/01: 1) have lived, are living or will live in Suffolk County, New York; and 2) during such period have been, are or will be "homeless" as defined in the McKinney−Vento Act, 42 U.S.C. 1143A. (Motion Served: 5/21/04, Motion Filed: 7/27/04). Filed by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K.. (Coleman, Laurie) (Entered: 08/02/2004)
85 MEMORANDUM OF LAW by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In Support of Pltffs' 84 MOTION for Class Certification. (Motion Served: 5/21/04, Motion Filed: 7/27/04). (Coleman, Laurie) (Entered: 08/02/2004)
86 DECLARATION of Jeffrey A. Simes on behalf of C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In Support of Pltffs' 84 Motion for Class Certification. (Motion Served: 5/21/04). Motion Filed: 7/27/04). (Coleman, Laurie) (Entered: 08/02/2004)
87 PROPOSED ORDER Re: Pltffs' 84 MOTION for Class Certification. (Returned Unsigned from Chambers).(Coleman, Laurie) (Entered: 08/02/2004)
88 MEMORANDUM OF LAW by Robert Doar, Sheila Evans−Tranumn, Patricia McGuirk, Richard P. Mills, New York State Education Department, State of New York Re: In Opposition to Pltffs' 84 MOTION for Class Certification. (Motion Served: 5/21/04, Motion Filed: 7/27/04). (Coleman, Laurie) (Entered: 08/02/2004)
89 AFFIRMATION of Susan M. Connolly on behalf of the "State Dfts" Re: In Opposition to Pltffs 84 MOTION for Class Certification. (Motion Served: 5/21/04, Motion Filed: 7/27/04).(Coleman, Laurie) (Entered: 08/02/2004)
90 DECLARATION of Lori L. Pack on behalf of Suffolk County Department of Social Services Re: In Opposition to Pltffs' 84 MOTION for Class Certification. (Motion Served: 5/21/04, Motion Filed: 7/27/04). (Coleman, Laurie) (Entered: 08/02/2004)
91 AFFIDAVIT of Donald Reed on behalf of Suffolk County Department of Social Services ("the County") Re: In Opposition to Pltffs' 84 MOTION for Class Certification. (Motion Served: 5/21/04, Motion Filed: 7/27/04).(Coleman, Laurie) (Entered: 08/02/2004)
92 REPLY MEMORANDUM OF LAW by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In further Support of Pltffs' 84 MOTION for Class Certification. (Motion Served: 5/21/04, Motion Filed: 7/27/04). (Coleman, Laurie) (Entered: 08/02/2004)
93 SUPPLEMENTAL DECLARATION of Jeffrey A. Simes on behalf of C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In Support of Pltffs' 84 MOTION for Class Certification. (Coleman, Laurie) (Entered: 08/02/2004)
57 LETTER/FAX MOTION dated 5/24/04 from Gary Steffanetta to Judge Spatt Re: This office has served as counsel to Hampton Bays School District, Middle Country School District, South Country School District, North Babylon, and Amityville School Districts. We make this application pursuant to Local Rule 1.4 for permission to withdraw from our representation of these five dft school districts, based upon the potential for a serious conflict of interest. (Coleman, Laurie) (Entered: 06/16/2004)
ENDORSED ORDER granting 57 letter application requesting permission for Guercio & Guercio to withdraw from representing Hampton Bays School District, Middle Country School District, South Country School District, North Babylon, and Amityville School District. Request to withdraw from representation and permitting Ingerman Smith, LLP to be substituted as counsel for record GRANTED. (Signed by Judge Arthur D. Spatt on 5/24/04). EOD #57. C/M(Coleman, Laurie) (Entered: 06/16/2004)

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05/26/2004
05/26/2004 05/27/2004 06/01/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/07/2004 06/07/2004 06/10/2004

56 MINUTE ENTRY before Judge Arlene R. Lindsay on 5/26/04 @ 11:00 a.m., for Civil Cause for Telephone Conference. 1) County dft to submit proposed subpoena consistent with discussion at conference 2) Review of social services filed to be conducted pursuant to confidentiality agreement entered by all parties for counsel's eyes only. Review of social services files to commence with review of a single file as agreed to by parties. Parties to identify relevant component parts of said file. Subsequent review of files to be limited to relevant component parts so identified 3) Parties report scheduling order to be submitted shortly. So Ordered. C/F (Coleman, Laurie) (Entered: 06/15/2004)
67 Letter from Gary L. Stefanetta dtd. 5/26/04 to All counsel serving endorsed order dtd. 5/24/04 of Judge Spatt for withdrawal of representation of Hampton Bays UFSC, Middle Country Central, South County Central, No. Babylon UFSC, Amityville UFSC. (Montero, Edher) (Entered: 06/23/2004)
69 Letter from Christopher J. Garvey on behalf of plaintiffs dtd. 5/27/04 to Judge Lindsay enclosing a faxed stip & order concerning Discovery Plan executed by all counsel. Orginal to follow. (Montero, Edher) (Entered: 06/28/2004)
117 STIPULATION AND ORDER Concerning Discovery Plan. So Ordered. Signed by Judge Arlene R. Lindsay on 6/1/04. (See attached Stipulation and Order for details.)(Dachille, Patti) (Entered: 09/28/2004)
99 MOTION for Leave to Appear Pro Hac Vice − For an Order allowing the admission of Jessica S. Blatt, Cheryl R. Brunetti, Courtney A. Clark, Christopher Nee, Sozi T. Sozinho, and Jeffrey R. Yousey as counsel for the pltffs. (Fee Paid: $25.00, Receipt: 013124). Filed by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K.. (Coleman, Laurie) (Entered: 08/11/2004)
100 AFFIDAVIT of Christopher A. Garvey on behalf of C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In Support of the 99 MOTION for an Order allowing the admission of Jessica S. Blatt, Cheryl R. Brunetti, Courtney A. Clark, Christopher Nee, Sozi T. Sozinho, and Jeffrey R. Yousey pro hac vice as counsel for the pltffs. (Fee Paid: $25.00, Receipt: 013124).(Coleman, Laurie) (Entered: 08/11/2004)
101 ORDER granting 99 Motion for Leave to Appear Pro Hac Vice − The admitted attorneys, Jessica S. Blatt, Cheryl R. Brunetti, Courtney A. Clark, Christopher Nee, Sozi T. Sozinho, and Jeffrey R. Yousey are permitted to argue or try this particular case in whole or in part as counsel or advocates representing the pltffs in this action. (Fee Paid: $25.00, Receipt: 013124). (Signed by Judge Arthur D. Spatt on 6/4/04). C/M (Coleman, Laurie) (Entered: 08/11/2004)
102 NOTICE OF APPEARANCE by Karen E. Weinberger on behalf of C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. (Coleman, Laurie) (Entered: 08/11/2004)
103 MOTION for Leave to Appear Pro Hac Vice − For an Order alllowing the admission of Georgia E. Yanchar, as attorney, pro hac vice to argue or try this case in whole or part as counsel for the pltffs. (Fee Paid: $25.00, Receipt: 013144). Filed by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K.. (Coleman, Laurie) (Entered: 08/11/2004)
104 AFFIDAVIT of Jeffrey A. Simes on behalf of C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In Support the 103 MOTION for an Order allowing the admission of Georgia E. Yanchar, as attorney, pro hac vice to argue or try this case in whole or part as counsel for the pltffs. (Fee Paid: $25.00, Receipt: 013144). (Coleman, Laurie) (Entered: 08/11/2004)
106 ORDER − Before the Court is the dft William Floyd's letter application seeking 1) to limit the number of school district depositions and 2) to compel the pltffs to produce Ms. Julianelle, who has been designated as the pltffs' 30(6)(b) witness, for a deposition in this district or to designate an alternative witness. Also before the court is the pltffs' letter application, seeking on behalf of the parties in the action, guidance in scheduling the depositions. The thirty−four deposition notices served upon the dfts without leave of the court are stricken. In light of the nature of this case and given the expedited discovery schedule each side may conduct up to 25 depositions. Pltffs may conduct depositions consistent with this order. As to the merits of the dft's motion to compel

Case: 2:04-cv-705 As of: 09/23/2017 07:40 PM EDT 20 of 26

06/14/2004 06/14/2004 06/14/2004 06/16/2004 06/16/2004 06/16/2004
06/18/2004 06/18/2004

Ms. Julianelle to appear in person for her deposition, it is clear that the court may, upon motion, order that a deposition be taken by telephone. The dfts may either collectively contribute to the reasonable cost of producing Ms. Julianelle in this district or she may appear by telephone. The pltffs are reminded that if Ms. Julianelle appears by telephone, such depositions must also comply with Rule 28(b). Given the court's ruling with respect to the thirty−four notices of depositions, the pltffs' letter application seeking guidance in scheduling the depositions is moot. (See Order for further details). (Signed by Judge Arlene R. Lindsay, on 6/10/04). C/F(Coleman, Laurie) Modified on 8/12/2004 (Coleman, Laurie). (Entered: 08/11/2004)
68 Letter dated 6/7/04 from Neil M. Block to Hon. Arthur D. Spatt re: This firm is counsel to thirteen (13) of the named school district defendants in the above−captioned litigation, including Central Islip Union Free School District. I make this application pursuant to Local Rule 1.4 for permission to withdraw from our representation of Central Islip based on a conflict of interest. (Dachille, Patti) (Entered: 06/26/2004)
Endorsed ORDER re granting 68 Letter Application to withdraw from representation of Central Islip Union Free School District: Request to withdraw as counsel for defendant Central Islip Union Free School district is granted only when the defendant's new counsel has filed a notice of appearance. So Ordered. Signed by Judge Arthur D. Spatt on 6/14/04. d/f. EOD#68.(Dachille, Patti) (Entered: 06/26/2004)
105 ORDER granting 103 Motion for Leave to Appear Pro Hac Vice − The admitted attorney Georgia E. Yanchar is permitted to argue or try this particular case in whole or in part as counsel for pltffs. (Fee Paid: $25.00, Receipt #013144). (Signed by Judge Arthur D. Spatt on 6/14/04). C/M (Coleman, Laurie) (Entered: 08/11/2004)
58 AFFIDAVIT OF SERVICE filed by Amityville School District, Hampton Bays School District, Middle Country School District, North Babylon School District, South Country School District − On 5/26/04 a copy of the Order of Judge Spatt, dated 5/24/04, was served by facsimile transmission and by U.S. Postal Service to Jeffrey A. Simes, Esq., Office of the Attorney General, Laurie Pack, Esq., Neil M. Block, Esq., Sanjay Malhotra, Esq. (Coleman, Laurie) (Entered: 06/16/2004)
65 CERTIFICATE OF SERVICE by M.K., M.W., National Law Center on Homelessness and Poverty, R.I., T.K. − On 3/30/04 a copy of the Motion to file Affidavit Under Seal, Order to Show Cause, a proposed Order, and the Affidavit of R.C. was served upon all counsel listed herein. (Documents did not contain a file stamp date and therefore were stamped as of date of receipt in docketed, 6/16/04).(Coleman, Laurie) (Entered: 06/18/2004)
66 AMENDED COMPLAINT /(First Amended Class Action Complaint for Declatory and Injunctive Relief) against Amityville School District, Bay Shore Union Free School District, Brentwood School District, Central Islip School District, Copiague Union Free School District, Janet Demarzo, Robert Doar, John Doe, Sheila Evans−Tranumn, Hampton Bays School District, Dan Hickey, Longwood Central School District, Patricia McGuirk, Medford School District, Middle Country School District, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, North Babylon School District, Riverhead School District, South Country School District, South Huntington School District, State of New York, Suffolk County Department of Social Services, William Floyd School District, filed by R.C., C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., T.K..(Coleman, Laurie) (Entered: 06/18/2004)
74 MOTION to Dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the FRCP. (Motion Filed: 7/19/04, Motion Served: 6/18/04). Filed by Robert Doar, Sheila Evans−Tranumn, Patricia McGuirk, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, State of New York. (Coleman, Laurie) (Entered: 07/20/2004)
75 AFFIRMATION of Susan M. Connolly on behalf of the "State Dfts" Re: In Support of their 74 MOTION to Dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the FRCP. (Motion Filed: 7/19/04, Motion Served: 6/18/04). Filed by Robert Doar, Sheila Evans−Tranumn, Patricia McGuirk, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, State of New York. (Coleman, Laurie) (Entered: 07/20/2004)

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06/18/2004 06/18/2004 06/18/2004 06/18/2004 06/18/2004 06/25/2004
06/25/2004 06/30/2004
06/30/2004 07/02/2004

76 MEMORANDUM OF LAW in Support by Robert Doar, Sheila Evans−Tranumn, Patricia McGuirk, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, State of New York Re: In Support of the "State Dfts' 74 MOTION to Dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the FRCP. (Motion Filed: 7/19/04, Motion Served: 6/18/04). (Coleman, Laurie) (Entered: 07/20/2004)
77 MEMORANDUM OF LAW by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In Opposition to the "State Dfts" 74 MOTION to Dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the FRCP. (Motion Filed: 7/19/04, Motion Served: 6/18/04). (Coleman, Laurie) (Entered: 07/20/2004)
78 DECLARATION of Jeffrey A. Simes on behalf of C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In Opposition to the State Dfts' 74 MOTION to Dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the FRCP. (Motion Filed: 7/19/04, Motion Served: 6/18/04). (Coleman, Laurie) (Entered: 07/20/2004)
79 REPLY MEMORANDUM OF LAW by Robert Doar, Sheila Evans−Tranumn, Patricia McGuirk, Richard P. Mills, New York State Education Department, New York State Office of Temporary and Disability Assistance, State of New York Re: In Further Support of the State Dfts' 74 MOTION to Dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the FRCP. (Motion Filed: 7/19/04, Motion Served: 6/18/04). (Coleman, Laurie) (Entered: 07/20/2004)
125 Copy of a Subpoena in a civil case sent to Suffolk County Child Protective and Preventive Services. (Signed by Magistrate Judge Lindsay) (Mierzejewski, Elizabeth) (Entered: 10/20/2004)
70 LETTER MOTION dated 6/24/04 from Neil Block to Judge Spatt Re: The undersigned represent the Pltffs and eleven of the thirteen School District Dfts. We write to inform the Court that Pltffs and eleven School District Dfts represented by Mr. Block (the "Settling Dfts") have reached an agreement in principle to settle the lawsuit as to the Settling Dfts. The settling Dfts include all of the School District Dfts with the exception of William Floyd and Central Islip. We jointly request that the Court suspend all deadlines in this case as they relate to the School District Defendants, and permit the parties to submit a revised Discovery Plan should the need arise, in order to facilitate settlement. (Coleman, Laurie) (Entered: 06/30/2004)
ENDORSED ORDER on 70 Letter Application − Request to suspend all deadlines GRANTED. Deadlines shall be suspended until 8/20/04. (Signed by Judge Arthur D. Spatt on 6/25/04). EOD #70. C/M(Coleman, Laurie) (Entered: 06/30/2004)
71 LETTER MOTION dated 6/24/04 from Jeffrey Simes to Judge Lindsay Re: Pltffs requests that the SCDSS dfts be ordered to 1) immediately and completely respond to pltffs' interrogatories, with all objections being deemed waived as untimely; 2) produce all responsive documents immediately; 3) correct and supplement their erroneous and misleading responses to pltffs' documents requests; and 4) pay pltffs' costs and fees on this motion and on any continuations of depositions necessitated by the SCDSS dfts' evasive approach to discovery, and that the Court grant such other relief as it deems appropriate. (Coleman, Laurie) (Entered: 07/07/2004)
ENDORSED ORDER on 71 Letter Application − 1) Consistent with discussions held with this Court the SCDSS is directed to respond to outstanding interrogatory and document requests forthwith; 2) Motion to preclude objections is denied; 3) Motion for costs is denied. (Signed by Judge Arlene R. Lindsay on 6/30/04). EOD #71. C/F.(Coleman, Laurie) (Entered: 07/07/2004)
72 LETTER dated 7/2/04 from Assistant Attorney General, State of NY to Judges Spatt/Lindsay Re: To request a three−week extension of the discovery schedule imposed by the Court in this case. The parties submit the following schedule: 7/8/04 − Service of opposition to mostion to dismiss; 7/15/04 − Service of reply regarding motion to dismiss; 7/19/04 − Identification of experts with CVs; 8/9/04 − Conclusion of fact discovery; 8/13/04 − Service of expert reports; 8/31/04 − conclusion of expert discovery. (Coleman, Laurie) (Entered: 07/08/2004)

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07/02/2004
07/12/2004
07/13/2004 07/13/2004 07/22/2004 07/22/2004 07/22/2004 07/22/2004 07/26/2004 07/29/2004 08/02/2004
08/02/2004

ENDORSED ORDER on 72 Letter Application − Request for extension of the discovery schedule as set forth in this letter GRANTED. No further extensions. Discovery Schedule: 7/8/04 − Service of opposition to mostion to dismiss; 7/15/04 − Service of reply regarding motion to dismiss; 7/19/04 − Identification of experts with CVs; 8/9/04 − Conclusion of fact discovery; 8/13/04 − Service of expert reports; 8/31/04 − conclusion of expert discovery.(Signed by Judge Arthur D. Spatt on 7/2/04). EOD #72. C/M.(Coleman, Laurie) (Entered: 07/08/2004)
73 CONSENT TO CHANGE ATTORNEY − It is hereby consented by and between the undersigned that Lewis Johs Avallone Aviles & Kaufman, 425 Broad Hollow Road, Melville, NY 11747, be substituted as attorney of record for dft Central Islip School District in place and stead of Ingerman Smith, LLP. Withdrawing Attorneys: Neil, M. Block, Esq., of Ingerman Smith, LLP; Substituting Attorneys: Robert Cimino, Esq., of Lewis Johs Avallone Aviles & Kaufman. Mr. Cimino is directed to serve a copy of this order on all parties upon receipt. (Signed by Judge Arthur D. Spatt on 7/12/04). C/M(Coleman, Laurie) (Entered: 07/16/2004)
80 LETTER/FAX dated 7/13/04 from Jeffrey Simes to Judge Lindsay Re: We request a ruling from Your Honor compelling the SCDSS dfts to produce the computer printouts from the Placement Unit, redacted so as not to reveal the names of the individual clients or families, immediately.(Coleman, Laurie) (Entered: 07/23/2004)
110 ANSWER to 66 Amended Complaint by William Floyd School District.(Coleman, Laurie) (Entered: 08/12/2004)
81 LETTER MOTION dated 7/13/04 from Jennifer McNamara to Judge Lindsay Re: I write in response to Mr. Simes letter of 7/13/04, regarding a discovery dispute. We request that Your Honor deny counsel's request as unduly burdensome and irrelevent. (Coleman, Laurie) (Entered: 07/23/2004)
82 ENDORSED ORDER on 81 Letter Application − For the reasons identified in the County's response, pltff's application for computer runs of all SCDSS clients is DENIED. Discovery at this junctive is to be limited to named claimants. (Signed by Judge Arlene R. Lindsay on 7/22/04). EOD #81. C/F(Coleman, Laurie) (Entered: 07/23/2004)
83 LETTER MOTION dated 7/15/04 from Jeffrey Simes to Judge Lindsay Re: We ask that the State be ordered to immediately provide dates for each of its witnesses whose depositions have been noticed. (Coleman, Laurie) (Entered: 07/23/2004)
ENDORSED ORDER granting 83 Letter Application requesting that the State be ordered to immediately provide dates for each of its witnesses whose depositions have been noticed. (Signed by Judge Arthur D. Spatt on 7/22/04). EOD #83. C/F(Coleman, Laurie) (Entered: 07/23/2004)
109 NOTICE OF OBJECTIONS TO ORDERS AND FINDINGS OF MAGISTRATE JUDGE by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K. Re: In objection to the 7/22/04 Order of Magistrate Judge Arlene R. Lindsay. (Coleman, Laurie) (Entered: 08/12/2004)
96 LETTER MOTION dated 7/29/04 from Howard Miller to Judge Spatt Re: To request that the Court extend all the deadlines as to Dft William Floyd School District until 8/30/04, to permit that District to execute the settlement agreement arrived at between the parites.(Coleman, Laurie) (Entered: 08/06/2004)
114 LETTER/FAX dated 8/2/04 from Jeffrey Simes to Judge Spatt Re: Conercing the opposition submitted by Jennifer McNamara, counsel for Suffolk County Department of Social Services, to Pltff's Objections to Orders and Findings of Judge Lindsay. We write because several of SCDSS's arguments are misleading in the extreme. Pltffs reiterate their request that the requested documents be produced immediately, or in the alternative, that the class be certified as soon as possible. (Coleman, Laurie) (Entered: 08/19/2004)
115 LETTER dated 8/2/04 from Jennifer McNamara to Judge Spatt Re: In response to Pltffs' Objection to Orders and Findings of Magistrate Judge Lindsay, dated 7/27/04. It is requested that Judge Lindsay's Order of 7/22/04 be affirmed. (Coleman, Laurie) (Entered: 08/19/2004)

Case: 2:04-cv-705 As of: 09/23/2017 07:40 PM EDT 23 of 26

08/03/2004 08/03/2004 08/03/2004 08/03/2004
08/09/2004 08/10/2004 08/11/2004 08/16/2004 08/16/2004 08/18/2004
10/05/2004 10/07/2004
10/07/2004 10/08/2004 10/08/2004 10/11/2004

94 Letter from Jennifer McNamara to Judge Arthur D. Spatt Regarding Discovery dispute. (Holst, William) (Entered: 08/03/2004)
95 Letter from Jennifer K. McNamara to Jeffrey Simes w/ cc toJudge Arthur D. Spatt Regarding Attorney conduct. (Holst, William) Additional attachment(s) added on 9/1/2004 (Coleman, Laurie). (Entered: 08/03/2004)
ENDORSED ORDER granting Dft William Floyd's 96 Letter Application requesting an extension of all deadlines, until 8/30/04, to permit that District to execute the settlement agreement arrived at between the parties. (Signed by Judge Arthur D. Spatt on 8/3/04). EOD #96. C/M.(Coleman, Laurie) (Entered: 08/06/2004)
116 LETTER dated 8/2/04 from Jennifer McNamara to Jeffrey Simes Re: Ms. Juliannelle currently works for the Pltff, National Law Center on Homelessness and Poverty, as an attorney and is Pltff's expert witness. It appears to be a breach of ethics for Ms. Juliannelle, as an attorney and as an expert witness in on−going litigation, to communicate directly with me, and more disturbingly, my client. (Coleman, Laurie) (Entered: 09/24/2004)
97 Letter from Susan M. Connolly to Judge Lindsay Regarding Discovery issues. (Pack, Lori) (Entered: 08/09/2004)
98 Letter from Jennifer K. McNamara, Esq. to Jeffrey Simes, Esq. Regarding Discovery dispute. (Holst, William) (Entered: 08/10/2004)
107 Letter from Christopher J. Garvey to Judge Lindsay Regarding response to Susan Connolly's August 5, 2004 letter to Judge Lindsay. (Garvey, Christopher) (Entered: 08/11/2004)
111 Minute Entry for proceedings held before Arlene R. Lindsay: Telephone Conference held on 8/16/2004. (c/ecf) (Goodstein, Alyce) (Entered: 08/16/2004)
112 ORDER re 97 & 107 : The August 5, 2004 letter application by the state defendants is hereby withdrawn without prejudice. So Ordered. Signed by Judge Arlene R. Lindsay on 8/16/04. (c/ecf)(Goodstein, Alyce) (Entered: 08/16/2004)
113 ORDER − Although the Court recognizes the validity of the pltffs' concerns, it concludes that Judge Lindsay's order was neither clearly erroneous nor contrary to law. Accordingly, the pltffs' motion to set aside her 7/22/04 Order is DENIED. However, after the pending motion for class certification is decided by this Court, if necessary, the pltffs may request to re−open discovery. The motion for class certification will be decided in due course. (Signed by Judge Arthur D. Spatt on 8/18/04). C/M.(Coleman, Laurie) (Entered: 08/18/2004)
134 LETTER dtd 10/4/04 from counsel for plaintiffs to Judge Spatt re: Enclosed stipulation of settlement. The State and County Defendants have declined to settle the matter. Plaintiffs anticipate initiating a motion for summary judgment. (Mierzejewski, Elizabeth) (Entered: 11/09/2004)
132 SETTLEMENT AGREEMENT AND CONSENT ORDER (Returned UNSIGNED by Judge Arthur D. Spatt). AMENDED CAPTION annexed − The Clerk of the Court is directed to amend the caption pursuant to herein. (Signed by Judge Arthur D. Spatt on 10/7/04). (Attachments: # 1 AMENDED CAPTION (Approved by ADS 10−07−04))(Coleman, Laurie) (Entered: 11/03/2004)
133 SETTLEMENT AGREEMENT AND CONSENT ORDER (Signed by Judge Arthur D. Spatt on 10/7/04). C/M.(Coleman, Laurie) (Entered: 11/03/2004)
118 Letter from State defendants to Arthur D. Spatt, U.S.D.J Regarding Plaintiffs' 56.1 Statement. (Connolly, Susan) (Entered: 10/08/2004)
119 Letter from Susan A. Flynn to Hon. Arthur D. Spatt, U.S.D.J. Regarding motions for summary judgment await decision on class certification motion.. (Flynn, Susan) (Entered: 10/08/2004)
136 ORDER granting the 118 Letter Application. Defendants' counterstatement shall be served by 11/12/04. Signed by Judge Arthur D. Spatt on 10/11/04. (Mahon, Cinthia) (Entered: 12/07/2004)

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10/13/2004 10/15/2004 10/15/2004
10/18/2004 10/18/2004 10/19/2004 10/19/2004
10/21/2004 10/21/2004 10/23/2004
10/23/2004 10/25/2004
10/25/2004 10/25/2004

120 Letter from Jeffrey A. Simes and Christopher J. Garvey to Judge Spatt Regarding response to the "non−settling Defendants'" October 8, 2004 letters. (Garvey, Christopher) (Entered: 10/13/2004)
121 Letter from State defendants to Hon. Arthur D. Spatt Regarding Request for jury trial. (Connolly, Susan) (Entered: 10/15/2004)
135 MINUTE ENTRY before Judge Arthur D. Spatt on 10/15/04 at 9:40 a.m., for Civil Cause for Telephone Conference. Counsel for all sides present. Court Reporter: Perry Auerbach. Case called. Conference held. OTHER: Letter from Mr. Garvey and Mr. Simes, dated 10/13/04. Court grants Motion for Class Certification. Court denies Motion to Dismiss. Court to issue written decision. 5:00 p.m. today, State dfts to notify this Court if it will ask for a Jury Trial. Jury Selection 10/25/04 at 9:00 a.m. or case will placed on 24 hour Non−Jury Reserve Calendar. (Coleman, Laurie) (Entered: 11/10/2004)
122 Letter from Jeffrey A. Simes and Christopher J. Garvey to Judge Spatt Regarding clarification of the parties' position concerning the manner in which this case will be tried. (Garvey, Christopher) (Entered: 10/18/2004)
123 PRETRIAL MEMORANDUM by National Law Center on Homelessness and Poverty, R.I.. (Garvey, Christopher) (Entered: 10/18/2004)
124 REPLY in Opposition re 122 Letter from Jeffrey Simes by Suffolk County Department of Social Services. (Siegel, Jennifer) (Entered: 10/19/2004)
131 MINUTE ENTRY for proceedings held before Arthur D. Spatt : For Plaintiff: Christopher J. Garvey, Jeffrey A. Simes and Deborah R. Berger. For Defendant: Denis McEligott, Susan Connelly and Susan Flynn.Telephone Conference held on 10/19/2004. Bench Trial scheduled for 10/28/04 @9:00. Jury selection for 10/25/04 is cancelled. (Court Reporter Harry Rapaport.) (Mierzejewski, Elizabeth) (Entered: 11/02/2004)
127 Letter MOTION to Continue − To request that the 10/22/04 conference be adjourned to 10/26/04. Filed by C.T., D.M., M.K., M.W., National Law Center on Homelessness and Poverty, R.I., R.C., T.K.. (Coleman, Laurie) (Entered: 10/25/2004)
ENDORSED ORDER Re: Pltff's 127 Motion to Adjourn the 10/22/04 Conference − Adjourned to 10/26/04 at 1:30 p.m. (Signed by Judge Arthur D. Spatt on 10/21/04). EOD #127. (Coleman, Laurie) (Entered: 10/25/2004)
126 MEMORANDUM OF DECISION AND ORDER − Ordered, that the 74 motion by the Dfts to dismiss this action pursuant to FRCP 12(b)(6) is DENIED. Ordered, that the Pltff's 84 motion for class certification pursuant to FRCP 23 is GRANTED. Ordered, that the parties are directed to proceed with the bench trial commencing on 10/27/04 at 9:00 a.m. (Signed by JudgeArthur D. Spatt on 10/23/04). C/M. (Coleman, Laurie) (Entered: 10/25/2004)
Set/Reset Hearings: Bench Trial set for 10/27/2004 09:00 AM before Judge Arthur D. Spatt. (Coleman, Laurie) (Entered: 10/25/2004)
128 ORDER − Ordered, that the portion of the Court's 126 decision which directed that the parties proceed with a bench trial commencing on 10/27/04 at 9:00 a.m. is hereby VACATED. Ordered, that the parties are directed to proceed with the bench trial commencing on 10/28/04 at 9:00 a.m. (Signed by Judge Arthur D. Spatt on 10/25/04). C/M.(Coleman, Laurie) (Entered: 10/25/2004)
Set/Reset Hearings: Bench Trial set for 10/28/2004 09:00 AM before Judge Arthur D. Spatt. (Coleman, Laurie) (Entered: 10/25/2004)
129 Ex Parte MOTION to Quash Subpoena by Richard P. Mills. (Attachments: # 1 Affidavit Affirmation of Susan M. Connolly# 2 Affidavit Richard P. Mills# 3 Affidavit Robert Doar# 4 Exhibit Mills Subpoena# 5 Exhibit Doar Subpoena# 6 Exhibit Mills July Affidavit)(Connolly, Susan) *** NOTE: The NYS Attorney General's Office inadvertently filed the above entry without attaching the Proposed Motion/Order to Show Cause to Quash. Susan Connelly of the NYS Attorney's General's Office has e−mailed a copy of the document to docketing and the Proposed Motion/OTSC has been attached to the above document). *** (Coleman, Laurie).

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10/25/2004 12/22/2004 06/14/2005
08/11/2005 08/19/2005 09/02/2005 09/06/2005
10/19/2005 10/31/2005
10/31/2005
11/02/2005 11/04/2005
11/04/2005 11/08/2005
01/03/2006

Additional attachment(s) added on 10/26/2004 (Coleman, Laurie). Modified on 10/26/2004 (Coleman, Laurie). (Entered: 10/25/2004)
130 PRETRIAL MEMORANDUM by Richard P. Mills. (Connolly, Susan) (Entered: 10/25/2004)
137 Letter from Susan M. Connolly to Hon. Arthur D. Spatt Regarding Status of Draft Stipulation of Settlement. (Connolly, Susan) (Entered: 12/22/2004)
139 LETTER dated 6/13/05 from Jeffrey A. Simes to Judge Spatt Re: To provide you with an update concerning the considerable progress the parties have made in the months since we last appeared before the Court, and also to request a status conference to expedite the tasks remaining to finalize the parties' consent order.(Coleman, Laurie) (Entered: 08/19/2005)
138 Letter from Jeffrey A. Simes to Denis McElligott, Christopher Termini, Neil M. Block, Howard Miller Regarding Notice to counsel of the conference before Judge Spatt on Tuesday, September 6 at 10:00 a.m. (Simes, Jeffrey) (Entered: 08/11/2005)
140 ORDER Re: 129 Motion to Quash − It is hereby Ordered, that due to the pending settlement of this case, the defendants' motion is DENIED without prejudice. (Signed by Judge Arthur D. Spatt, undated). C/ECF. (Coleman, Laurie) (Entered: 08/19/2005)
141 Letter from Susan M. Connolly to Honorable Arthur D. Spatt Regarding Request for Adjournment. (Connolly, Susan) (Entered: 09/02/2005)
142 MINUTE ENTRY before Judge Arthur D. Spatt on 9/6/05 at 10:10 a.m., for Civil Cause for Status Conference. Counsel for all sides present. Case called. Conference held. OTHER: Re: Letter from Mr. Simes. Settlement within two weeks. (Coleman, Laurie) (Entered: 10/05/2005)
143 Letter from Jeffrey A. Simes to The Honorable Arthur D. Spatt Regarding request for the scheduling of a conference. (Simes, Jeffrey) (Entered: 10/19/2005)
145 MINUTE ENTRY before Judge Arthur D. Spatt on 10/31/05 @ 12:15 p.m., for Civil Cause for Conference. Counsel for all sides present. Case called. Conference held. OTHER: Re Letter from Simes and Garvey. Executed Consent Order. (Coleman, Laurie) (Entered: 11/04/2005)
146 AMENDED MINUTE ENTRY before Judge Arthur D. Spatt on 10/31/05 at 12:15 p.m., for Civil Cause for Conference. Counsel for all sides present. Court Reporter: Mary Ann Steiger. Case called. Conference held. Further conference scheduled for 11/3/05 at 9:00 a.m. OTHER: Rulings on the record regarding plaintiff's letter to the Court dated 10/19/05. (Coleman, Laurie) (Entered: 11/08/2005)
144 Letter from Christopher J. Garvey to The Honorable Arthur D. Spatt Regarding confirmation that the November 3, 2005 status conference has been moved to November 4, 2005 at 11:30 a.m. (Garvey, Christopher) (Entered: 11/02/2005)
147 MINUTE ENTRY before Judge Arthur D. Spatt on 11/4/05 from 11:35 a.m. to 11:70 a.m., for Civil Cause for Conference. Counsel for all sides present. Court Reporter: Mary Ann Steiger. Case called. OTHER: Matter adjourned to 11/8/05 at 1:00 p.m. to continue settlement discussions. (Coleman, Laurie) (Entered: 11/16/2005)
Set/Reset Hearings: Status Conference set for 11/8/2005 at 1:00 PM before Senior−Judge Arthur D. Spatt. (Coleman, Laurie) (Entered: 11/16/2005)
148 MINUTE ENTRY before Judge Arthur D. Spatt on 11/8/05 at 1:30 p.m., for Civil Cause for Conference. Counsel for all sides present. Court Reporter: Dominick Tursi. Case called. Conference held. OTHER: Case settled parties to request a Fairness Hearing in Writing. (Coleman, Laurie) (Entered: 11/16/2005)
149 Letter from Jeffrey A. Simes to the Honorable Arthur D. Spatt Presenting the Parties' fully Executed Settlement Agreements and Consent Orders by M.K., T.K., R.C., C.T., D.M., National Law Center on Homelessness and Poverty, R.I., M.W.. (Attachments: # 1 Tab A − Proposed Consent Order as to the State Defendants# 2 Tab B − Proposed Consent Order as to the County Defendants# 3 Tab C − Proposed Consent Orders as to the School District Defendants# 4 Tab D − Notice of Proposed Settlement of Class Action)(Simes, Jeffrey) (Entered: 01/03/2006)

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03/31/2006 03/31/2006 03/31/2006
10/03/2006 10/03/2006 10/03/2006 03/30/2007 04/02/2007 11/08/2007
11/08/2007 12/25/2007
12/27/2007 05/16/2008

150 SETTLEMENT AGREEMENT AND CONSENT ORDER Between Plaintiffs and State Defendants. SEE Settlement Agreement and Consent Order for further details. Executed by Plaintiffs and the OTDA Defendants. (Signed by Judge Arthur D. Spatt, on 3/31/06). Executed by the State Defendants and the NYSED Defendants. (Signed by Judge Arthur D. Spatt, on 3/31/06). (Coleman, Laurie) (Entered: 04/06/2006)
151 SETTLEMENT AGREEMENT AND CONSENT ORDER Between Plaintiffs and County Defendants. Executed by Plaintiffs and SCDSS Defendants. SEE Settlement Agreement and Consent Order for further details. (Signed by Judge Arthur D. Spatt on 3/31/06).(Coleman, Laurie) (Entered: 04/06/2006)
152 MINUTE ENTRY before Judge Arthur D. Spatt on 3/31/06 from 1:40 p.m. to 2:00 p.m., for Civil Cause for Fairness Hearing. Counsel for all sides present. Court Reporter: Owen Wicker. Court Deputy: Mary Ellen Schaffner. Case called. Fairness Hearing held. OTHER: No objections to Settlement Agreement and William Floyd School District − Separate Agreement. Attorneys Fees − No objections. Court approves Settlement and Signs Settlement Agreement and Consent Order. Case Closed. (Coleman, Laurie) (Entered: 04/26/2006)
153 STATUS REPORT on behalf of NYSED by Sheila Evans−Tranumn. (Connolly, Susan) (Entered: 10/03/2006)
154 Letter on behalf of NYSED by Sheila Evans−Tranumn. (Connolly, Susan) (Entered: 10/03/2006)
155 STATUS REPORT on behalf of OTDA by Robert Doar. (Connolly, Susan) (Entered: 10/03/2006)
156 Letter with compliance report by Sheila Evans−Tranumn (Attachments: # 1 Supplement Compliance report) (Connolly, Susan) (Entered: 03/30/2007)
157 STATUS REPORT on behalf of OTDA by Robert Doar (Connolly, Susan) (Entered: 04/02/2007)
158 STIPULATION AND ORDER − Plaintiffs and the "School District Defendants" hereby stipulate and move the Court for entry of this Stipulation and Order as follows: Whereas, the parties entered into a Consent Order, ordered by this Court, which is set to expire on 11/8/07 and whereas the parties are concluding compliance and reporting activities under that Consent Order. Now Therefore, Plaintiffs and the School District Defendants hereby stipulate that the Consent Order among them (and the Court's jurisdiction thereunder) shall be extended to and including 12/22/07. So Ordered. (Signed by Senior−Judge Arthur D. Spatt on 11/8/07). C/F. (Coleman, Laurie) (Entered: 11/16/2007)
159 LETTER dated 11/7/07 from Jeffrey Alan Simes to Judge Spatt Re: Extending the Consent Order for a brief period to permit those School District Defendants to complete their reporting requirements under the Consent Order. (Coleman, Laurie) (Entered: 11/16/2007)
160 LETTER dtd 12/21/07 from Thomas M. Volz to Judge Spatt re: I am assisting in the Middle Country Central School District in connection with their submission of compliance reports in connection with this matter. Today I am forwarding to Plaintiff's counsel, Jeffrey Simes, Compliance Reports from my client for submission before January. Mr. Simes has agreed to allow me to submit that final report by January 4, 2008. I respectfully request that you accept the commitment I made to Mr. Simes to provide that information by the first week in January. (Mierzejewski, Elizabeth) (Entered: 01/07/2008)
161 ORDER GRANTING the 160 Letter Application.. Ordered by Senior Judge Arthur D. Spatt on 12/27/07. (Mierzejewski, Elizabeth) (Entered: 01/07/2008)
162 STATUS REPORT Compliance Report on behalf of State defendants by Robert Doar (Connolly, Susan) (Entered: 05/16/2008)

 
 •

Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 1 of 51FPIaLgEeIDD#: 1 DN~

IN CLERK'S OFFICE

U.S. OJSTRJC'rCOURTE.O.N.Y

•

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

* FEB 2o2004

*

LONG ISLAND OFFICE

NATIONAL LAW CENTER ON HOMELESSNESS AND

•

POVERTY, R.I., individually, and as parent and natural guardian of A.B., a minor child, M.W., individually, and as Civil Action No. 04-CV ( )

•

parent and natural guardian ofDa.W., Di.W., Dq.W., T.H. ana

c· ·o·. 4 1 T S.J., minor children, M.K., individually, and as parent and
.·1/ natural guardian ofS.P., a minor child, and T.K., individually,

·

and as parent and natural guardian ofK.K., on behalf of

· ·

.

5) themselves and all those similarly situated,

CLASS ACTION

c's /\ . Plaintiffs,

COMPLAINT

07 0 5 . ..

. J<

FOR DECLARATORY AND

v.

INJUNCTIVE RELIEF

•

STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT, RICHARD P. MILLS (as

Commissioner of Education of the State of New York);

SHEILA EVANS-TRANUMN (as Associate Commissioner of

Education of the State ofNew York); PATRICIA MCGUIRK

•

(as Program Manager for the Homeless of the New York State Education Department); NEW YORK STATE OFFICE OF

TEMPORARY AND DISABILITY ASSISTANCE, ROBERT

DOAR (as Acting Commissioner of the New York State

Office of Temporary and Disability Assistance), SUFFOLK

•

COUNTY DEPARTMENT OF SOCIAL SERVICES, JANET DEMARZO (As Commissioner Of The Suffolk County

Department Of Social Services), DAN HICKEY (As Associate

Commissioner Of The Suffolk County Department Of Social

Services), LONGWOOD CENTRAL SCHOOL DISTRICT,

•

HAMPTON BAYS SCHOOL DISTRICT, MIDDLE COUNTRY SCHOOL DISTRICT, COPIAGUE UNION

FREE SCHOOL DISTRICT, SOUTH HUNTINGTON

SCHOOL DISTRICT, MEDFORD SCHOOL DISTRICT,

WILLIAM FLOYD SCHOOL DISTRICT, CENTRAL ISLIP

•

SCHOOL DISTRICT, BAY SHORE UNION FREE SCHOOL DISTRICT, SOUTH COUNTRY SCHOOL DISTRICT, BRENTWOOD SCHOOL DISTRICT, NORTH BABYLON

SCHOOL DISTRICT, AMITYVILLE SCHOOL DISTRICT,

RIVERHEAD SCHOOL DISTRICT and JOHN DOE

SCHOOL DISTRICTS 1-10,

•

Defendants .

sP.AlJ,J.
UNDSAY, M.

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Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 2 of 51 PageID #: 2

INTRODUCTION

•

1. This lawsuit seeks to remedy the systemic failure of the education and social

services systems in New York State and Suffolk County to provide homeless children within the

•

county with access to a free, public education. 2. Few circumstances are more tragic than those faced every day by homeless

children. Denying such children the same access to public school education enjoyed by other

•

children makes it all the more difficult for such children to integrate into society and realize their

potential as human beings. The Defendants-the persons and entities responsible for educating

and providing social services to homeless children in Suffolk County, New York-have, by their

•

neglect or in some instances malfeasance, added to the tragedy of homeless children by denying

them appropriate access to a basic public school education.

•

3. The Plaintiffs in this case are homeless children and their parents living in Suffolk

County who have been denied or are being denied or deprived of access to a free and appropriate

public school education because of the Defendants' violations of the requirements of federal and

•

state laws and regulations. 1 The consequence of the Defendants' conduct is that homeless

children in Suffolk County are often turned away at the schoolhouse door, experience significant

•

delays in enrolling in public school, or are denied access to transportation or other basic services that form the basic prerequisite for them to receive a public school education. This lawsuit seeks

to break the Defendants' pattern of neglect, indifference and intransigence towards the homeless

•

1 Plaintiffs are identifying themselves in this pleading and all other public documents filed in this case through

initials only. Plaintiffs are minor children or parents of minor children, some of whom have been classified as

having special educational needs. Accordingly, the named plaintiffs have requested identification by initials only in

order to protect their privacy rights and the privacy rights of their minor children pursuant to the Family Education

•

Rights and Privacy Act ("FERPA''), 20 U.S.C. § 1232g(b), 34 C.F.R. § 99.30 (1988), and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., 20 U.S.C. § 1417(c) (1988), 34 C.F.R. §§ 300.571, .572, .573. See also Webster Groves School Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1374-75 (8th Cir. 1990).

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Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 3 of 51 PageID #: 3

children of Suffolk County.

•

4. Plaintiffs bring this action on behalf of themselves and all others similarly

situated, challenging the failure of the Defendants to comply with the Stewart B. McKinney-

•

Vento Homeless Assistance Act, 42 U.S.C. §§ 11431-11435 (the "McKinney-Vento Act"), New

York State Education Law § 3209 and the regulations promulgated thereunder and challenging

Defendants' repeated violations of Plaintiffs' rights under the United States and New York

•

Constitutions .

5.

Upon information and belief there are numerous children in Suffolk County

who are denied or deprived of access to the public school they are entitled to attend simply

•

because they are homeless and because the Defendants, collectively and/or individually, have

been responsible for a systemic failure to provide access to an education for homeless children in

•

Suffolk County New York. The root cause of this situation is the Defendants' pursuit of

practices and customs that, among other things, have resulted in a failure to:

a. locate and ensure enrollment and the opportunity for educational success of

•

homeless children in New York State and Suffolk County, New York;

b. provide adequate, uninterrupted transportation assistance sufficient to enable such

children to attend school;

•

c. provide an opportunity for each homeless child to be immediately enrolled in the
school that is in his or her best interest to attend while homeless-either the school of origin or the school nearest to where he or she is actually living, without

regard to standard documentation requirements;

d. provide parents of homeless children an opportunity to participate in determining

•

the best interest of their children;

e. comply with the wishes of homeless parents as to choice of school to the extent

feasible;

•

f.

implement a meaningful plan to remove systemic barriers to homeless children's

participation in public education;

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g. provide appropriate notice to parents or children in Suffolk County, of a child's

•

legal right to remain in the school that the child attended when permanently housed or the school in which the child was last enrolled (the "school of origin")

after becoming homeless;

h. afford homeless children and parents in Suffolk County appropriate notice of the availability of an ombudsperson and of their right to dispute school placement and transportation decisions.

i. grant ombudspersons the authority to enforce their decisions and requests for school districts to admit homeless children to school and/or provide homeless children with prompt, adequate and uninterrupted transportation or other necessary services;

j. provide for prompt, timely and effective dispute resolution procedures as ts required by the McKinney-Vento Act;

•

k. coordinate emergency housing procedures and other social services requirements for homeless families with the procedures and requirements for attending public

schools;

I. provide comparable services, including transportation services, to homeless

children that are available to children who are not homeless;

•

m. review and revise policies, including transportation policies, that act as a barrier to

the enrollment of homeless children in school; and

n. assess the special needs of homeless children and youth.

•

6. As set forth more fully herein, Plaintiffs allege that these policies, practices and

customs violate state and federal laws. Plaintiffs therefore seek declaratory and injunctive relief

and ask this Court to enter an order (a) declaring that Defendants are in violation of the

McKinney-Vento Act (42 U.S.C. §§ 11431-11435), New York State Education Law § 3209,

other applicable laws, and the regulations promulgated thereunder, and (b) requiring Defendants

•

to comply promptly with all such laws and regulations and to do so on an ongoing basis.

JURISDICTION AND VENUE

7. This Court has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3), on the ground that

•

this action arises under the laws of the United States. This Court also has jurisdiction pursuant to

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the Individual with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487 and the

•

Rehabilitation Act, 29 U.S. C. § 794.

8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), on the ground

•

that the violations of law described herein occurred in Suffolk County, New York, where the

Plaintiffs reside.

9. Plaintiffs have been deprived of their federal statutory rights, and thus bring this

•

action pursuant to 42 U.S.C. § 1983.

10. This Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over

Plaintiffs' claims of violations of New York State Education Law and the New York

Constitution, Article XI, § 1.

11. There is an actual controversy between the Plaintiffs and the Defendants within

the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201 and Fed. R. Civ. P. Rule 57.

PARTIES

•

M.K. and S.P.

12. M.K. is the mother and legal guardian ofS.P., a fifteen year old girl who, prior to

becoming homeless, attended Longwood High School. M.K. and S.P. are both citizens of the

•

United States and at all times mentioned herein were and are living in Suffolk County.

13. At all relevant times, M.K. and S.P. have been homeless and have lacked a fixed,

•

adequate and regular nighttime residence. M.K. and S.P. have no permanent address and often spend each night of the week in a different location, or move from place to place seeking

temporary shelter. M.K. and S.P. have been homeless since approximately December 5, 2003,

•

when they were evicted from their permanent residence in Ridge, New York, within the

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Longwood School District. Following the eviction, M.K. and S.P. have lived in temporary

•

housing and are presently dwelling on a temporary basis in a motel in Holbrook, New York.

14. At all times mentioned herein, Plaintiff S.P. was enrolled in, or sought to be

•

enrolled, in the Longwood School District.

15. On or about December 3, 2003, when M.K. and S.P. realized that they were about

to become homeless, M.K. called the attendance office at Longwood High School to arrange for

•

transportation for S.P. to and from their new temporary address. The school officials refused to

help and informed M.K. that transportation was her problem, not that of the school or school

district .

•

16. At the time M.K. and S.P. became homeless, S.P. was enrolled as a tenth grader in

Longwood High School. Because S.P. was diagnosed as having special needs, S.P. was placed

•

in a special education program.

17. M.K. does not own a car and is not able to drive. Thus, following their eviction,

M.K. was not able to transport S.P. to school. M.K. made numerous telephone calls to various

•

school officials over the next several weeks to arrange for transportation for S.P. M.K.'s calls to

the school officials over the next several weeks went unanswered and the school district refused

•

to provide any assistance to M.K. or S.P . 18. In later December, M.K. contacted New York State Technical and Educational

Assistance Center for Homeless Students ("NYS TEACHS"). She was told, for the first time,

•

that transportation for S.P. was the responsibility of the school system. NYS TEACHS directed

M.K. to the "homeless liaison" at the Longwood School District.

19. M.K. called the homeless liaison on several occasions but received no return call.

•

Finally, M.K. spoke to a secretary for the homeless liaison who informed M.K. that only the

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Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 7 of 51 PageID #: 7

Department of Social Services could help. M.K. explained that DSS did not place M.K. and S.P.

•

in their temporary housing and thus would not provide transportation for them. The secretary

indicated that the homeless liaison would contact them soon. The homeless liaison never called

•

them, even though M.K. called her office several times thereafter.

20. M.K. 's repeated inquiries about transportation were never answered. The only

time the school district contacted M.K. was to threaten "consequences" if S.P. did not resume her

•

attendance at school. M.K. understood this threat to mean that they would attempt to remove

S.P. from M.K.'s custody if M.K. was unable, on her own, to secure transportation for S.P. to

school.

•

21. As a result of these events, S.P. has been out of school continuously since

approximately November 26, 2003 and has received no educational or special education services

•

of any kind since that time.

22. M.K. brings this action on her own behalf, as next friend and legal guardian of

S.P., and on behalf of a class of homeless parents and children located in Suffolk County, New

•

York.

R.I. and A.B.

•

23. R.I. is the mother and legal guardian of A.B., a sixteen year old girl who is

presently enrolled in Eastern Suffolk Board of Cooperative Education Services ("BOCES"). R.I.

and A.B. are citizens of the United States and at all times mentioned herein were and are living

in Suffolk County.

24. At all relevant times, R.I. and A.B. have been homeless and have lacked a fixed,

adequate and regular nighttime residence. R.I. and A.B. have no permanent address and often

•

spend each night of the week in a different location, or move from place to place seeking

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temporary shelter. R.I. and A.B. became homeless in August 2002 after fleeing from a domestic

•

violence situation.

25. Immediately after becoming homeless, R.I. and A.B. enrolled A.B. in the Middle

•

Country School District. R.I. and A.B. were re-housed by Suffolk County Department of Social

Services ("SCDSS") every night for a considerable period of time. They were finally placed in a

stable motel placement, the Rainbow Motel in Copiague, New York, only after an administrative

•

Fair Hearing was requested. R.I. and A.B. lived in the Rainbow Motel in Copiague from

approximately October 2002 until March 2003.

26. Eventually, the Middle Country School District learned that A.B. was living in a

motel in the Copiague Union Free School District and advised R.I and A.B. that A.B. could not

attend school in Middle Country, but would have to attend school in the Copiague district.

•

27. The Copiague School District, however, refused to enroll A.B. without receiving

records from her prior schools. No one at the school district or the SCDSS ever informed R.I. or

A.B. that they had the right to have A.B. enrolled at and attending school regardless of whether

•

R.I. and A.B. were able to provide certain paperwork, such as immunization records, guardian

papers, utility bills, and the like.

•

28. When A.B. was finally enrolled in the Copiague School District, she was referred to their Committee on Special Education ("CSE") and found to have a disability. There was a

waiting list, however, for the recommended BOCES placement, and A.B. was placed on home

•

tutoring at the Copiague Public Library. The tutoring was not provided on a consistent basis.

The tutor frequently did not show up, and when she did show up, would spend at most ninety

minutes with A.B. rather than a full school day.

•

29. In March 2003, A.B. was scheduled to be screened at a 30-day program at

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Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 9 of 51 PageID #: 9

Sagamore Children's Center ("Sagamore") for acceptance into the BOCES placement. At this

•

point, however, the emergency housing placement for R.I. and A.B. was moved to a shelter in

Center Moriches, New York, and outside of the Copiague School District. When the Copiague

•

School District was informed of the new address, the district informed R.I. that because they no

longer resided in the Copiague School District, they would not provide busing for A.B. to attend

her March 2003 appointments at Sagamore. In addition, representatives of the shelter in which

•

R.I. and A.B. were housed called SCDSS to request that they send transportation to take A.B. to

her appointment at Sagamore. The SCDSS had consistently refused to provide busing for A.B.

to attend Sagamore, and again refused on this occasion. Because R.I. did not have the money to

•

transport A.B. to her appointments at Sagamore, A.B. was not able to attend.

30. In the subsequent weeks and months, SCDSS moved R.I.'s and A.B.'s temporary

•

housing several times, as a result of which the school district frequently stopped supplying any

tutoring services and transportation to A.B. Moreover, A.B. has missed approximately six

months of school in the aggregate waiting for transportation arrangements to catch up to her

•

various new temporary housing placements. Nonetheless, A.B. has received no compensatory

services or special education to address the period of time she was denied such services.

•

31. R.I. and A.B. have recently been informed that they may not be allowed to remain in their current housing past April or May 2004. In such event, they will probably be placed

back into emergency housing shelters, motels, etc., and thus they fear that further disruption to

•

A.B.'s schooling and special education services, as outlined above, is imminent.

32. R.I. brings this action on her own behalf, as next friend and legal guardian of

A.B., and on behalf of a class of homeless parents and children located in Suffolk County, New

•

York.

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TheW. Family

•

33. M.W. is the mother and legal guardian of 5 children, Da.W. aged 11, Di.W. aged

10, Dq.W. aged 9, T.H. aged 6 and S.J. aged 4. All of the members of theW. family are citizens

•

of the United States and at all times mentioned herein were and are living in Suffolk County.

34. At all relevant times, the W. family has been homeless and has lacked a fixed,

adequate and regular nighttime residence. The W. family has no permanent address and often

•

spends each night of the week in a different location, or moves from place to place seeking

temporary shelter. The W. family became homeless in March of 2003.

35. Prior to the time that theW. family became homeless, Da.W., Di.W, Da.W. and

•

T.H. attended public school in the Wyandanch School District. These children are currently

enrolled in public school in the South Huntington School District and have attended the schools

•

of Suffolk County all of their lives.

36. After becoming homeless in March 2003, SCDSS placed theW. family in a series

of emergency hotel placements for approximately one month at a time. Because the school-aged

•

children of M.W. were required by SCDSS to be physically present with M.W. while the W.

family awaited an emergency housing placement at SCDSS offices every day during this period,

•

the children of the W. family were denied educational services, even though they were still enrolled in the Wyandanch School District. This requirement, which on information and belief is

a normal practice of SCDSS, forces school aged homeless children to miss school.

•

37. M.W.'s children have also been denied transportation to and from school,

including the South Huntington schools. For example, M.W. has been trying to enroll her

daughter S.J. in the Head Start program. However, she was repeatedly told by representatives of

•

both the South Huntington school district and SCDSS that S.J. cannot attend Head Start because

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Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 11 of 51 PageID #: 11

bus transportation has not been and will not be provided.

•

38. Since becoming homeless, theW. family has on several occasions been unable to

procure transportation to school for the children of the W. family. The W. family were placed in

•

emergency shelter housing by SCDSS in April2003. After this move, no transportation was sent

for her children for five days. In late April or early May 2003, M.W. and her children were

moved to a different shelter, located in Southampton, New York. Transportation to school was

•

not provided for 7-8 days. In the beginning to middle of May 2003, theW. family was moved to

yet another shelter and again lost transportation to and from school for approximately I Yz weeks.

39. In July 2003, M.W. and her children were eventually moved to emergency

•

housing in Huntington, New York. At that time, M.W. elected to place her children in school in

the South Huntington School District. Dq.W. missed the first week of school because the

schools insisted on enrollment paperwork. No one at the South Huntington School District or the

SCDSS informed M.W. that she had the right to have Dq.W. registered at school regardless of

whether she was able to provide certain paperwork relating to, among other things,

•

immunizations, physicals, guardianship and utility bills.

40. Subsequently, the pattern of relocation and missed transportation continued. On

•

January 15, 2004, M.W. and her children were moved to temporary housing in Smithtown, New York. After this move, the school bus did not begin picking up M.W.'s children for

approximately I week. On February 4, 2004, M.W. and her children were moved again, this

•

time to Bay Shore, New York. M.W. and her children currently reside at this location. Once

again, the W. family experienced a delay in bus transportation, which has not yet been provided

to any of the W. children. As of the date of this complaint, the W. children have each missed

•

more than one week of school. M.W.'s children are currently out of school on mid-winter

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vacation and M.W. has been informed that bus transportation will be provided on February 23,

•

2004, after the mid-winter break ends.

41. M.W. brings this action on her own behalf, as next friend of Da.W., Di.W.,

•

Dq.W., T.H. and S.J. and on behalf of a class of homeless parents and children located in Suffolk County, New York.

The K. Family

•

42. T.K. is the father and legal guardian ofK.K., aged 10. All of the members of the

K. family are citizens of the United States and at all times mentioned herein were and are living

in Suffolk County.

•

43. At all relevant times, the K. family has been homeless and has lacked a fixed,

adequate and regular nighttime residence. The K. family has no permanent address and often

•

spends each night of the week in a different location, or moves from place to place seeking

temporary shelter.

44. K.K. is presently in the 5'h grade in the Longwood Central School District.

•

45. While living in temporary housing in both Smithtown and Medford, officials from

the Longwood school district informed T.K. that they would not provide transportation to school

for K.K. on days of delayed openings, such as during inclement weather. The school district also

•

refused to provide transportation for K.K. after soccer and band programs offered by the

Longwood Central School District at K.K.' s school and, as a result, K.K. was not able to

•

participate in those programs.

46. When T.K. inquired about this, he was informed by school officials that the

district was not sending transportation because it did not want to pay for it.

•

47. As a result of Longwood's position, K.K. has missed approximately 15 to 18 days

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of school since September, 2003, and has not been able to participate in afterschool programs

•

made available to other children.

48. T.K. brings this action on his own behalf, as next friend ofK.K. and on behalf of

•

a class of homeless parents and children located in Suffolk County, New York.

The State Defendants

49. Defendant New York State Education Department ("NYSED") is a governmental

•

agency of Defendant State of New York with control over educational matters affecting Suffolk

County and responsible for the general supervision and management of the Suffolk County

Public Schools. As such, it is responsible for ensuring compliance with federal, state and lo'cal

•

laws governing this system.

50. NYSED is a recipient of federal funds under the McKinney-Vento Act. Upon

•

information and belief, for the fiscal year 2001, NYSED received McKinney-Vento Funds in the

amount of $3,420,665.00. Upon information and belief, NYSED received in excess of $5

million ofMcKinney-Vento funds in each of2002 and 2003 .

•

51. By accepting those funds, the NYSED is required under the McKinney-Vento Act

to ensure, among other things, that

•

a. each child of a homeless individual and each homeless youth has equal access to
the same free, appropriate public education, including a public preschool
education as provided to other children and youth;

b. New York State take steps to revise and remove residency requirements and other

laws, regulations, practices, or policies that may act as barrier to the enrollment,

•

attendance, or success in school of homeless children;

c. homelessness alone should not be sufficient reason to separate students from the

mainstream school environment;

•

d. the defendant NYSED is to ensure that homeless children and youth should have
access to the education and other services that such children and youth need to

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ensure that such children and youth have an opportunity to meet the same

•

challenging state student performance standards to which all students are held;

e. the local educational agencies (i.e., the local school districts) comply with the

McKinney-Vento Act;

f. homeless children and youth are identified and their special needs are assessed

•

(See 42 U.S.C. § 11432(g)(l)(B));

g. procedures are available for prompt resolution of disputes (See 42 U.S.C.

§ 11432(g)(l)(c));

•

h. homeless children have access to public preschool programs (See 42 U.S.C. § 11432(g)(l)(F)(i));

1. NYSED and local educational agencies develop, review and revise policies to

removed barriers to school emollment and retention for homeless children and

•

youth (42 U.S.C. §11432(g)(l)(I)); and f. the State and its local educational agencies adopt policies and practices to ensure

that transportation is provided to and from the school of origin (See 42 U.S.C.

§ 11432(g)(l)(J)(iii)).

•

52. NYSED was at all relevant times acting or purporting to act under color of state

law.

53. NYSED is also a recipient offederal funds under IDEA and is mandated by IDEA

•

to ensure the delivery of appropriate special educational services to all children with disabilities

up to the age of twenty-one who reside in New York State, including the disbursement of IDEA

•

funds to Local Educational Agencies or LEAs. 54. Defendant Richard P. Mills is the Commissioner of Education of the State of New

York. Having been appointed by the Board of Regents of the University of the State of New

•

York, he is the chief administrative officer of the Defendant NYSED and, in that capacity, is

responsible for the general management and supervision of the state public education system,

including education of homeless children. He is also responsible for securing the lawful exercise

•

of all authority delegated to NYSED and insuring compliance by the LEAs with the requirements

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of the McKinney-Vento Act, the IDEA, New York State Education Law section 3209, and New

•

York State Education Law, Article 89, and the implementing regulations.

55. Commissioner Mills was at all relevant times acting or purporting to act under

•

color of state law under New York Education Law Article 7, §§ 301-316. 56. Defendant Sheila Evans-Tranumn is an Associate Commissioner of Education of

the State of New York. Upon information and belief, Ms. Evans-Tranumn has been appointed

•

New York's "Coordinator of Education of Homeless Children" as specified under 42 U.S.C.

§ 11432(±) and thus is the person in the Department of Education with direct responsibility for

coordinating NYSED's activities vis-a-vis homeless children and overseeing the use of the

•

money granted to New York State under the McKinney-Vento Act. Upon information and

belief, Ms. Evans-Tranumn is responsible for establishing a system to monitor compliance by the

•

school districts of New York State with the requirements of the McKinney-Vento Act and

ensuring such compliance.

57. Associate Commissioner Evans-Tranumn was at all relevant times acting or

•

purporting to act under color of state law under New York Education Law Article 7, §§ 301-316.

58. Defendant Patricia McGuirk has been appointed the Program Manager for the

Homeless of the New York State Education Department by Defendant Sheila Evans-Tranumn.

•

Upon information and belief, Ms. McGuirk shares with Ms. Evans-Tranumn the responsibility

for establishing a system to monitor compliance by the school districts of New York State with

•

the requirements of the McKinney-Vento Act and ensuring such compliance.

59. Defendant McGuirk was at all relevant times acting or purporting to act under

color of state law under New York Education Law Article 7, §§ 301-316.

•

60. Defendants State of New York, The New York State Education Department,

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Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 16 of 51 PageID #: 16

Richard P. Mills (as Commissioner of Education of The New York State Education Department),

•

Sheila Evans-Tranumn (as Associate Commissioner of Education of The New York State

Education Department) and Patricia McGuirk (as Program Manager for the Homeless of the New

•

York State Education Department) will be referred to collectively herein as the "State

Defendants."

The Social Services Defendants

•

61. Defendant New York State Office of Temporary and Disability Assistance

("OTADA") is a govermnental agency of Defendant State of New York with control over social

services affecting New York State and is responsible for the general supervision and

•

management of the administration of social serviCes m Suffolk County. As such, it 1s

responsible for ensuring compliance with federal, state and local laws governing this system.

•

62. Defendant Robert Doar is the Acting Commissioner of the New York State Office

of Temporary and Disability Assistance. Having been so, he is the chief administrative officer of

the Defendant OTADA and, in that capacity, is responsible for the general management and

•

supervision of the state social services system, including services provided to homeless children.

Acting Commissioner Doar was at all relevant times acting or purporting to act under color of

state law.

•

63. The Suffolk County Department of Social Services ("SCDSS") is the local

Department of Social Services in Suffolk County, New York and is responsible for the general

•

supervision and management of social services provided to homeless people in Suffolk County,

New York. As such, SCDSS, like OTADA, is responsible for ensuring compliance with federal,

state and local laws governing this system.

•

64. OTADA and SCDSS are mandated by state law (New York State Education Law

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§ 3209 and its regulations) to, among other things, assist homeless families in completing the

•

required forms for enrollment in a designated school district and to provide for transportation to

and from the designated school district of each homeless child who is eligible for benefits

•

pursuant to section 350-j of the Social Services Law. All allegations herein against OTADA and

SCDSS relate to conduct affecting homeless children who are eligible for OTADA and SCDSS

benefits in Suffolk County, New York.

•

65 . OTADA and SCDSS were at all relevant times acting or purporting to act under

color of state law.

66. Defendants Janet DeMarzo and Dan Hickey are, respectively, the Commissioner

•

and Associate Commissioner of the Suffolk County Department of Social Services. Having been

duly appointed by Suffolk County, they are the chief administrative officers of the SCDSS, and,

•

in that capacity are responsible for the general management and supervision of the SCDSS in

Suffolk County. They are also responsible for securing the lawful exercise of all authority

delegated to SCDSS and to ensure compliance with the laws governing SCDSS including but not

•

limited to New York State Education Law § 3209 and its implementing regulations.

67. Commissioner DeMarzo and Associate Commissioner Hickey were at all relevant

•

times acting or purporting to act under color of state law. 68. Defendants New York State Office of Temporary and Disability Assistance,

Suffolk County Department of Social Services, Robert Doar, Janet DeMarzo and Dan Hickey

•

will be referred to collectively herein as the "Social Services Defendants."

The School District Defendants

69. Upon information and belief Defendant Longwood Central School District is a

•

municipal corporation duly organized and existing under New York State Education Law and is

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a Local Educational Agency ("LEA") under the IDEA and the McKinney-Vento Act.

•

70. Upon information and belief Hampton Bays School District is a municipal

corporation duly organized and existing under New York State Law and is an LEA.

•

71. Upon information and belief Defendant Middle Country School District is a

municipal corporation duly organized and existing under New York State Law and is an LE

72. Upon information and belief Copiague Union Free School District is a municipal

•

corporation duly organized and existing under New York State Law and is an LEA.

73. Upon information and belief South Huntington School District is a municipal

corporation duly organized and existing under New York State Law and is an LEA.

•

74. Upon information and belief Medford School District is a municipal corporation

duly organized and existing under New York State Law and is an LEA.

•

75 . Upon information and belief Central Islip School District is a municipal

corporation duly organized and existing under New York State Law and is an LEA.

76. Upon information and belief William Floyd School District is a municipal

•

corporation duly organized and existing under New York State Law and is an LEA.

77. Upon information and belief Bay Shore Union Free School District is a municipal

corporation duly organized and existing under New York State Law and is an LEA.

•

78. Upon information and belief South Country School District is a municipal

corporation duly organized and existing under New York State Law and is an LEA.

•

79. Upon information and belief Brentwood School District is a municipal

corporation duly organized and existing under New York State Law and is an LEA.

80. Upon information and belief North Babylon School District is a municipal

•

corporation duly organized and existing under New York State Law and is an LEA.

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81. Upon information and belief Amityville School District is a municipal corporation

•

duly organized and existing under New York State Law and is an LEA.

82. Upon information and belief Riverhead School District is a municipal corporation

•

duly organized and existing under New York State Law and is an LEA. 83. Upon information and belief, other school districts in Suffolk County should be

defendants in this action but the Plaintiffs, in the exercise of due diligence, have not been able to

•

determine the names and addresses of all school districts involved. Plaintiffs therefore also name

John Doe School Districts I through I 0, inclusive, who are believed to be municipal corporations

duly organized and existing under New York State Law and LEAs for purposes of the

•

McKinney-Vento Act.

84. Defendants Longwood Central School District, Hampton Bays School District,

•

Middle Country School District, Copiague Union Free School District, South Huntington School

District, Medford School District, William Floyd School District, Central Islip School District,

Bay Shore Union Free School District, South Country School District, Brentwood School

•

District, North Babylon School District, Amityville School District, Riverhead School District,

and John Doe School Districts 1-10 will be referred to collectively herein as the "School District

Defendants."

•

85. The School District Defendants are municipal entities that are regulated by and

report to the educational authorities of the State of New York, including the State Defendants.

•

86. The School District Defendants establish local rules and practices concerning the

enrollment, transportation and education of children within their districts, including homeless

children .

•

87. The School District Defendants are recipients of funds from the State Defendants

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for the education of children. Included in these funds are funds designated for the enrollment,

•

education and transportation of homeless children, under the McKiuney-Vento Act and New

York State Education Law§ 3209.

•

Class Action Allegations

88. The named Plaintiffs bring this action on behalf of two Plaintiff classes ("Class

A," the "children class;" and "Class B," the "parent class"), pursuant to Fed. R. Civ. P. 23. The

•

classes are defined as follows:

a. Class A: All school aged children (as defined by New York State Education Law)

who, on or after September 1, 2001: (1) have lived, are living or will live in

Suffolk County, New York; and (2) during such period have been, are, or will be

•

"homeless" as defined in the McKiuney-Vento Act, 42 U.S.C. § 11434A.

b. Class B: All parents, guardians or persons in a parental relationship for children in

Class A, who, on or after September I, 2001: (I) have lived, are living or will

live in Suffolk County, New York; and (2) during such period have been, are or

•

wilJ be "homeless" as defined in the McKiuney-Vento Act, 42 U.S.C. § 11434A.

89. According to estimates by the Suffolk County Joint Task Force on Homelessness,

class members currently number in the hundreds. It is estimated, for example, that some 2,300

•

residents of Suffolk County are homeless and live in emergency housing, of which I ,400 are

children.

90. On information and belief, many of these children, if they are permitted by the

•

Defendants to continue to attend school at all, are forced to transfer multiple times to different

placements in different school districts during the course of a school year, causing them to miss

•

numerous days of school. Such frequent changes occur because of the inherently transient nature

of homelessness and because the Defendants have failed to comply with certain requirements of

the McKinney-Vento Act. Defendants have not taken steps to ensure that these children remain

•

in their schools of origin if at all possible, despite their homelessness, nor do they assist homeless

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families in a way that ensures that the children receive consistent, uninterrupted transportation to

•

enable them to attend the schools designated for them by their parents. Because many class

members lack any fixed and regular residence and are forced to move from place to place and

•

because the class is so numerous, joinder is impracticable. 91. There are questions of law and fact common to the class, which common

questions predominate over any questions affecting only individual class members. The

•

Defendants have engaged in a persistent and repeated pattern of refusing to remove barriers to

education of homeless children, despite their statutory and regulatory obligations to do so, and as

a result have in essence denied homeless children a free and appropriate public school education.

•

The Defendants have acted or refused to act on grounds that are generally applicable to the

classes, thereby making appropriate injunctive relief and declaratory relief with respect to the

•

classes as a whole .

92. The claims of the named Plaintiffs are typical of the claims of the two classes.

Homeless children in Suffolk face comparable, if not identical, barriers to entering and

•

remaining in public school in Suffolk County, New York. Without access to an adequate and

continuous public education, all of these children face serious setbacks in their developmental

path to becoming productive, self-sufficient adults.

•

93. The named Plaintiffs will fairly and adequately protect the interests of the class.

They are ready and able to pursue this case in the interests of the classes and have no interests

•

adverse to those of the class members they represent. They have retained counsel with sufficient

expertise in class action and civil rights litigation to prosecute the case.

94. Certifying a class here is an appropriate method for the fair and efficient

•

adjudication of the controversy. Absent class certification, it is unlikely that the unlawful

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behavior by the Defendants described herein could be remedied, particularly given the numerous

•

obstacles to bringing and maintaining a lawsuit faced by homeless families. Indeed, absent class

certification, it is almost certain that homeless children's voices will not be heard, and the

•

systemic failure to educate homeless children in Suffolk County will continue unabated.

FACTUAL ALLEGATIONS

•

The Plight of Homeless Children in Suffolk Countv, New York 95. Upon information and belief, there are currently some 550-600 homeless families

in Suffolk County, comprising approximately 2,300 people.

•

96. Upon information and belief, the homeless population of Suffolk County has

doubled in the last three years and continues to climb. The precise number of homeless families

and children is difficult to calculate due to the mobility and lack of permanent residence of the

•

homeless and the societal stigma associated with homelessness.

97. Of the approximately 2,300 homeless people living in Suffolk County New York,

•

it is estimated that approximately 1,400-more than 60%-are children.

98. As of the end of 2002, approximately 550 homeless families were living in

emergency housing provided by the Social Services Defendants. Due to the lack of shelter

•

space, however, the Social Services Defendants have placed over 176 families in motels.

99. SCDSS requires that all members of a homeless family, including employed

adults who are missing work and school-age children who are missing school, appear at one of

•

five local county centers to be screened, have their eligibility determined and, sometimes, be

placed in emergency housing. Depending on the size of the family, the difficulty in finding a

•

vacant placement, and the number of families already being served by the county's emergency

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housing system, the SCDSS housing unit ("Central Housing") is often unable to find placements

•

for a particular evening.

100. A family which has not been placed by Central Housing by the end of the day,

•

even if they have been sitting in a local center all day, must contact the Emergency Services (ES)

unit of SCDSS by calling the emergency after-hours number themselves, later that night, after

the center is closed. Placements made byES are drawn from a pool (mostly of hotels and motels)

•

separate and apart from the more stable placements handled by Central Housing.

101. A family placed by ES is required to return to the local center the next day (or the

next business day) with all members of the family (including school-aged children) and all of

•

their belongings, to await placement again for that evening. During the present ongoing crisis of

homelessness in the county, the family may be required to wait all day in the local center and

•

then again be told that there are no stable placements available and so the frnaily must call ES

again. They may be placed that night in a different hotel or motel, or in the same motel, even in

the same room as the night before. The next day they are required to again return to the local

•

center, with all members of the family and all of their belongings, to repeat the same process

until they receive a more stable placement.

•

102. Even when a homeless family is finally placed in a more stable emergency housing, it takes five days, sometimes longer, to set up bus transportation to get school-age

children back to school. Because of the ongoing crisis in the county homeless families in

•

Suffolk are virtually never placed within their school district of origin. If at any time the family

is transferred to a different emergency housing placement, it again takes five days, sometimes

longer, to re-establish school transportation.

•

103. In fact, when SCDSS deauthorizes or discontinues a family from one emergency

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housing placement in order to transfer them to another, it also discontinues the supportive service

•

of school bus transportation. No attempt is made to ensure that the already established bus

transportation continues uninterrupted despite the transfer of the homeless family from one

•

shelter to another. 104. Upon information and belief, SCDSS has no system in place to provide school

transportation for the school-age children of families placed in non-stable emergency housing by

•

ES .

Obstacles Facing Homeless Children in the Public Schools

105. Homeless children face unique obstacles to enrolling in and remaining in public

•

school. Public schools traditionally required proof of a "permanent address" as a prerequisite to

enrollment. Homeless families, by their very nature, lack such a permanent address and thus

•

were often turned away at the schoolhouse door. 106. ln addition, public school districts including the School District Defendants

typically demanded a host of records and documentation that cannot reasonably be demanded of

•

homeless children and their families. Homeless children for example, are hard pressed to

document their residency or retain immunization records. Nonetheless, without such

documentation, school districts routinely turned away homeless children and refused to enroll

•

them.

107. The parents of homeless children often face a further obstacle in ensuring that

•

their children receive the education they are entitled to- namely, the absence of transportation to

enable their children to attend school. Because school districts found it administratively difficult

to cope with the ever-changing addresses of homeless families, they often declined to transport

•

them at all. Homeless children thus often found themselves with no reliable means to get to and

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from school.

•

108. Changes in the school enviromnent can impede the opportunities for homeless

children to achieve success in education. Research indicates that students who change schools

•

due to unplanned residential mobility, such as that associated with homelessness, score lower on standardized tests and have lower overall academic achievement. They are more likely to drop

out of school and experience emotional and behavioral difficulties. Their educational needs are

•

often unrecognized and umnet.

109. Various other obstacles have historically stood in the way of homeless children

obtaining a public school education. Aside from the stigma and isolation imposed by

•

homelessness, homeless children have often found that the requirements imposed by social

service agencies were at odds with the requirements of school districts. Homeless families were

•

required to make difficult choices not faced by other families, such as whether to apply for

temporary housing or whether to send their children to school.

Education of the Homeless Under Federal and State Law

•

The McKinney-Vento Act

110. Congress acted decisively to remove the obstacles faced by homeless children in

•

enacting the McKinney-Vento Act, Pub. L. No. 100-77, § 102(b)(2), 100 Stat. 482,485 (codified as amended at 42 U.S.C. § 11301 et seq.) in 1987 to provide a broad range of assistance to

homeless individuals and families. Subtitle VII-B of the McKinney-Vento Act relates to the

•

education of homeless children and youth. 42 U.S. C. §§ 11431-11435.

111. In enacting the McKinney-Vento Act, Congress sought to ensure that homeless

children would have "equal access to the same free, appropriate public education, including a

•

public preschool education, as provided to other children and youth."

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112. Thus, Congress made available funds for the States to assist in the education of

•

homeless children on the condition that the States receiving such funds remove the "compulsory

school attendance laws or other laws, regulations, practices, or policies that may act as a barrier

•

to the enrollment, attendance, or success in school of homeless children and youth" and that the States "review and undertake steps to revise such laws, regulations, practices, or policies to

ensure that homeless children and youth are afforded the same free, appropriate public education

•

as provided to other children and youth."

113. Under 42 U.S.C. § 11434A, the McKinney-Vento Act defines "homeless children

and youths" to include:

•

(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 waiting 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 103(a)(2)(C);

•

(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 1309 of the Elementary and

Secondary Education Act of 1965) who qualify as homeless for the purposes of

•

this subtitle because the children are living in circumstances described in clauses (i) through (iii).

114. To carry out the purposes of the McKinney-Vento Act as it relates to educational

•

opportunities for homeless children, the U.S. Secretary of Education makes grants directly to

"state educational agencies." 42 U.S.C. § 11432. Under the McKinney-Vento Act, NYSED is a

"state educational agency."

•

115. New York, like every other state, receives federal funds to carry out the purposes

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of the McKinney-Vento Act. Upon information and belief, for the fiscal year 2001, NYSED

•

received McKinney-Vento Fnnds in the amount of$3,420,665.00. Upon information and belief,

for the fiscal year 2002, NYSED received $5,041,904.00 in McKinney-Vento Funds and in 2003

•

it received $5,568,814.00 in such funds-a more than 10% increase over 2002. 116. The McKinney-Vento Act, at 42 U.S.C. § 11432(g), requires the State to provide

for the education of homeless children and youth within the State, and the plan adopted by the

•

State must show how the state will ensure that local educational agencies in the State will

comply with the requirements of the McKinney-Vento Act.

117. Under the McKinney-Vento Act, the local educational agencies are required to

•

develop, review and revise policies to remove barriers to the enrollment and retention of

homeless children and youth in their schools. 42 U.S.C. § 11432(g)(l)(I); 42 U.S.C.

•

§ 11432(g)(7).

118. Under the McKinney-Vento Act, each local educational agency must designate a

liaison, who must ensure that: homeless children and youths are identified; homeless children

•

and youths enroll in, and have a full and equal opportunity to succeed in school; homeless

families, children and youths receive educational services for which they are eligible, including

•

Head Start, Even Start and public preschool programs; parents or guardians of homeless children are informed of the educational and related opportunities available to their children and provided

with meaningful opportunities to participate in their children's education; public notice of

educational rights is disseminated where children and youth receive services, such as schools,

family shelters, and soup kitchens; and parents, guardians and youth are fully informed of

transportation services and assisted in accessing those services. 42 U.S.C. § 11432(g)(6)(A).

•

119. The McKinney-Vento Act further provides that "The Coordinator for Education

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of Homeless Children and Youths established in each State shall ... (2) develop and carry out

•

the state plan ... (4) facilitate coordination between the State educational agency, the State

social services agency, and other agencies . . . (6) provide technical assistance to local

•

educational agencies ... to ensure that local educational agencies comply with the requirements of section 722(e)(3) and paragraphs (3) through (7) of subsection (g)." 42 U.S.C. § 11432(f).

120. A local educational agency that applies to the state educational agency for a grant

•

of McKiuney-Vento Act funds is required to give "an assurance that the applicant complies with,

or will use requested funds to come into compliance with, paragraphs (3) through (9) of

§ 11432(g)." 42 u.s.c. § 11433(b)(3).

•

The Individuals with Disabilities Education Act ("IDEA'?

121. The IDEA, 20 U.S.C. §§ 1400-1487, and the regulations promulgated thereunder,

•

provide children with disabilities a substantive right to a "free appropriate public education" in

the "least restrictive environment" in those states that receive federal assistance provided under

IDEA. 20 U.S.C. § 1412(a); 34 C.R.R. §§ 300.550-300.556.

•

122. The State Education Department and, through NYSED, the boards of education

(LEAs or School Districts such as Bay Shore and Longwood) receive funds appropriated under

IDEA and, therefore are subject to its requirements. See 20 U.S.C. §§ 1412(a), 1413(a). Upon

•

information and belief, the School District Defendants have received funds from NYSED out of

the money the State Defendants received from the federal government under the McKinney-

•

Vento Act.

123. 1n order to receive federal assistance under IDEA, each State must develop a plan

that assures a free appropriate public education to all children with disabilities, aged three

•

through twenty-one. 20 U.S.C. § 1412 (a)(1)(A).

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New York State Education Law

•

124. New York State Education Law § 3202 (1) provides that every person over five

and under twenty one years of age who has not received a high school diploma is entitled to

•

attend the public schools maintained in the district in which such person resides without the payment of tuition.

125. New York State Education Law § 3209 commits the Defendants to provide for the

•

education of homeless children in New York State.

126. Pursuant to statutory authority, the Defendant Commissioner of Education

enacted regulations which provide for the education of homeless children in New York State. 8

•

NYCRR § 100.2 (x).

127. New York State law and regulations, among other things, require that a school

•

district must make available a "designation" form (called "STAC" forms) to any homeless child

or parent or guardian in order for the child to enroll in the school district of current location or

continue in the school district of origin. It is up to the parent or guardian to determine whether

•

the homeless child shall attend the school district of current location or the school district of

origin. These sections also require that homeless children be provided with transportation to

either the district of origin or the district of current location.

•

128. Recent amendments to the New York State law from the Summer of 2003 also

require the LEAs to comply with 42 U.S.C. §§ 11432(g)(3) through (7).

•

129. The Defendant Commissioner of Education is required to periodically monitor

local school districts to ensure their compliance with the provisions of New York State

Education Law § 3209 and the regulations promulgated thereunder.
•

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The Defendants' Duties Under Federal and State Law

•

130. Under the aforementioned Jaws, the State Defendants are obligated, among other

things, to:

•

a. prepare and carry out an adequate state plan for implementing the McKinneyVento Act and ensure the LEA's compliance with the plan;

b. require the LEA's to ensure that all homeless school age children in Suffolk County and New York State have access to a free appropriate public education;

•

c. coordinate with local social service and housing agencies and programs providing services to homeless children and youth including shelters, the Department of

Social Services, residential programs for runaway and homeless youth

(established pursuant to article nineteen-H of the executive law of New York

State);

d. ensure that the local social service agency complies with the provisions of New York State Education law and its regulations in providing education and transportation services to homeless children and youth;

e. review and revise policies that may act as barriers to, and provide services that

•

enable the enrollment, attendance and success in school of each homeless child in Suffolk County and New York State, including policies related to transportation,

records-requirements and residency requirements;

f. provide procedures for the prompt resolution of placement and transportation

•

assistance disputes affecting homeless children in Suffolk County and New York State;

g. identify and address problems affecting the education of homeless children in the Suffolk County and New York State;

•

h. assure that policies and practices are adopted by the state and LEAs to ensure that homeless children in the Suffolk County and New York State are not stigmatized

or isolated;

I. ensure that the LEAs provide written notice to homeless school-age children and

•

the parents or legal guardians of such children of any adverse action affecting their placement in schools, a fair opportunity to challenge such decisions,

including the notice of the availability of an ombudsperson and a process of

resolving the dispute;

•

j. ensure the LEAs compliance with state Jaw and regulations (New York Education
Law section 3209 and 8 NYCRR 100.2 (x);

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k. ensure that the LEAs locate and provide educational services to all eligible

•

children in the County of Suffolk and New York State;

I.

ensure that the state, the state educational agency and the LEAs carry out the

mandates of the IDEA, 20 U.S.C. § 1412, and its regulations and that the LEAs

comply with Article 89 of New York State Education Law and its regulations to

provide a free appropriate public education to students classified as having a

disability pursuant to these statutes and regulations;

m. ensure that homeless children and youth are able to participate in Federal, State or local food programs;

•

n. ensure that homeless children have equal access to the same public preschool programs, administered by the State agency, as provided to other children;

o. ensure that homeless youths and youths separated from the public schools are

identified and accorded equal access to appropriate secondary education and

•

support services; p. identify homeless children and youth and assess their special needs.

131. Under the same laws discussed above, the School District Defendants are

•

obligated to:

a. make available to each homeless child and family the designation form provided by the commissioner ("STAC" form) who seeks to enroll (or continue the child)

in school;

b. review the designation form to assure that it has been completed;

c. where the school district of origin is designated, the child shall be entitled to return to the school building where previously enrolled;

•

d. where the school district is the school district of current location the child shall be admitted to the school, the homeless child shall be treated as a resident for all

purposes, the LEA must make a written request to the school district where the

child's records are located for a copy of such records; and forward the designation

form to the commissioner and the school district of origin if applicable;

•

e. where a homeless child is not entitled to receive transportation pursuant to

Education Law section 3209(4) from the Department of Social Services or from

the Division for Youth, the child shall be transported by the designated school

district;

f.

establish policies and procedures to ensure compliance with the provisions of

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New York State Education Law section 3209 and its regulations and review and

•

revise any local regulations, policies or practices that may act as barriers to the enrollment or attendance of homeless children in school or their receipt of

comparable services as defined in Part B of Title VII of the Federal Stewart B.

McKinney-Vento Act;

•

g. ensure that homeless families, children and youths receive educational services
for which they are eligible, including Head Start, Even Start and public preschool programs;

h. periodically report such information to the commissioner as he or she may require to carry out the purposes of New York State Education Law section 3209.

i.

provide a free appropriate public education in the least restrictive environment to

students who are classified as having a disability pursuant to the IDEA and

Article 89 ofNew York State Education Law.

•

132. At all relevant times, the Social Services Defendants have had the duty to comply

with all applicable provisions bearing upon the education of the named Plaintiffs and Class

members, including the obligations to:

•

a. ensure that each homeless child who is eligible for benefits pursuant to section 350-j of the Social Services Law, receives transportation to and from the

temporary housing location in which the child was placed;

b. make available to each homeless child located in a temporary housing facility

•

operated or approved by SCDSS, a person designated by the social services agency who shall within two business days, assist the child's guardian or other

designator (as defined in New York State Education Law§ 3209) in completing

the designation forms in order that the homeless child may be enrolled in the

designated school district.

•·

c. ensure that each homeless child and his or her family not be subject to any policy,

procedure, rule or requirement that in any way interferes with the ability of the

homeless child to be in attendance at school.

Defendants' Violations of Their Statutory and Other Duties

•

133. In contrast to these duties, the Defendants have repeatedly and persistently failed

to meet their obligations under the relevant laws. Among other things, and as detailed more fully

herein, the Defendants have failed to revise their policies and practices regarding transportation

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which act as a barrier to the enrollment attendance and success of homeless youths and have

•

failed to ensure that LEAs revise their policies and practices regarding transportation of

homeless children. For example, homeless children seeking transportation to or from the school

of their choice are often denied transportation simply because they lack a permanent address. As

a result, members of the Class seeking to enroll in public school have been denied that

opportunity for lack of transportation to the school of their designation.

•

134. Suffolk County Department of Social Services, for example, pursues a policy

granting them a five-day window in which to provide transportation for a homeless child making

such a request, but only after the family has been placed in a "stable" emergency housing

•

placement. The practical effect of this self-declared requirement is that weeks or months can

elapse before children are provided the transportation to school that the Suffolk County

•

Department of Social Services is statutorily required to provide upon request. Indeed, some

Plaintiffs are denied "stable" emergency housing for months or longer, and only receive such

housing after they demand an administrative "fair hearing" before an Administrative Law Judge.

•

On information and belief, this policy is known to and approved by the Social Services

Defendants.

13 5. The Social Services Defendants have been ordered, by the Principal

Administrative Law Judge of OTADA, to review the transportation situation of homeless

families "to ensure that school transportation is provided to children of homeless families." On

information and belief, the Social Services Defendants have ignored this ruling of their own

Principal Administrative Law Judge and have refused to address their failure to provide adequate

transportation for homeless children to and from school.

•

136. The Defendants have also failed to meet their statutory obligations by failing to

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coordinate the activities of the School District Defendants with other service providers such as

the Social Services Defendants. In some instances, detailed more fully below, the policies

imposed by the Social Services Defendants as a precondition to the Plaintiffs receiving

temporary housing or other services are the basis of the School District Defendants refusal to

provide transportation services or other educational services to homeless children. For example,

the Social Services Defendants often require an entire family, children included, to be present at

•

local social services centers all day, sometimes for weeks on end, simply to apply and be

assessed for temporary housing each and every business day. The effect of this requirement is to

force homeless families to choose between temporary housing and the education of their

•

children, a choice that is plainly impermissible under federal and state law.

137. The School District Defendants have violated the law by providing incorrect or

•

false information to homeless families seeking to enroll their child in an appropriate district.

Sometimes the School District Defendants falsely informed homeless families that they could not

enroll in the school district when federal and state law expressly provided that they could. In

•

some instances, the School District Defendants have simply refused, without basis, to process the

STAC forms submitted by parents of homeless children.

138. The Defendants have also failed to establish an effective and timely procedure for

•

the resolution of disputes pertaining to the educational services provided to homeless children in

Suffolk County. In some instances, homeless children and their families have no established

•

means of addressing disputes. Where dispute resolution procedures are available, they are slow,

and virtually impossible to navigate without an attorney, rendering them inappropriate for

resolving the needs of homeless children. As a result, homeless children who have been denied

•

access to the school of their choice or who have been denied other educational rights have had to

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wait an inordinate period of time to have those issues resolved, if they are resolved at all.

•

139. The Defendants have placed other unlawful obstacles in the way of the education

of homeless children. For example, on information and belief, Hampton Bays, Amityville and

•

perhaps other school districts have required records before permitting enrollment. Some school districts refuse to provide free school meals without completed applications.

140. The Defendants have also violated the above-referenced statutes and regulations

•

by failing to ensure that the LEAs such as the School District Defendants identify and address

enrollment delays occasioned by cumbersome, unnecessary and time-consuming record

requirements, enrollment and transfer requirements. Upon information and belief, homeless

•

children are denied enrollment to public school because they lack a permanent address or

because they lack other records or documentation that they do not have because they are

•

homeless. As a result, homeless children seeking to enroll in a school in which they are entitled

to enroll by statute are often denied enrollment or find that enrollment is unreasonably delayed

because of record requirements that are impractical for homeless children. Such requirements

•

constitute an impermissible barrier to enrollment under the McKinney-Vento Act and New York

State Education Law§ 3209.

141. Relatedly, the Defendants have not adopted appropriate policies or procedures to

•

enforce the decisions of ombudspersons and/or the dispute resolution process for LEAs such as

the School District Defendants. Upon information and belief, the School District Defendants

•

routinely and systematically ignore the ombudsperson and/or the dispute resolution process with

respect to the education and/or transportation of homeless children. On occasion, the

ombudsperson has directed the LEA to provide certain services or accommodations for homeless

children, but the LEA has refused. The consequence is that numerous homeless children have

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been forced to forego their right to an education and/or transportation to LEAs such as the

School District Defendants.

142. The State Defendants, while aware of the failure of the School District

Defendants to meet the requirements of federal and state law, have refused to take appropriate

•

corrective action.

143. The Defendants have also violated the statutes and regulations by failing to adopt

•

policies and practices or to ensure that the LEAs adopt, policies and practices that ensure that

homeless children are not isolated or stigmatized. Because homeless children are denied the

opportunity to attend school or participate in afterschool or other programs, they are often at a

•

disadvantage socially vis-a-vis other children who do not face such obstacles.

144. The Defendants have failed to carry out the mandates of the IDEA, 20 U.S.C.

•

1412 and its regulations and ensure that the LEAs comply with Article 89 of New York State

Education Law and its regulations to provide a free appropriate public education to students

classified as having a disability pursuant to these statutes and regulations. Thus, homeless

•

children in Suffolk County with disabilities are not being provided with individualized

educational plans ("IEPs") because they are being denied access to public school. The LEAs

including the School District Defendants are not complying with the IEPs for those homeless

•

children who have been provided with IEPs because of the failure to make appropriate efforts to

ensure the sustained enrollment and attendance of homeless children.

•

145. In addition, the Defendants are violating the IDEA by failing to provide

compensatory educational services to homeless children, particularly those children who have

prolonged absences as a result of the Defendants' failure to meet the requirements of the

•

McKinney-Vento Act or New York Education Law§ 3209.

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146. When the state defendants have been made aware of violations of law bearing

•

upon the education of homeless children and/or homeless children who are also classified as

having a disability pursuant to the IDEA and Article 89 of New York State Education Law, in

•

Suffolk County, they have ignored these violations, have failed to take corrective action, and/or have failed to make the systemic changes necessary to comp Jy with their statutory and regulatory

duties.

•

147. In short, the Defendants have engaged in and are engaging in a pattern and

practice of, among other things, (a) failing to provide or providing an inadequate process for

selecting a school that is in the best interest of the homeless child; (b) failing to provide an

•

opportunity for the parent of a homeless child to state the best interest of the child in school

selection; (c) denying homeless children the opportunity to remain in their schools of origin and

•

forcing them to transfer to the school which serves the attendance area in which they stay while homeless; (d) when homeless children move from one homeless shelter to another within Suffolk

County, Defendants engage in a pattern and practice of denying them the opportunity to remain

•

at the school serving the first shelter and forcing them to transfer to the school serving the second

(or subsequent) shelter.

The Defendants' Awareness of Their Violations of Federal and State Law

•

148. The Defendants are aware that they are not in compliance with federal and state

Jaw. Among other things, Nassau Suffolk Law Services and the Long Island Advocacy Center

•

wrote to Commissioner Mills (with a copy of the letter to former Commissioner Wing of OTADA and Commissioner DeMarzo of Suffolk County Department of Social Services) on or

about August 7, 2003 to detail the ways in which state and local agencies were failing to meet

•

the educational and transportation needs of homeless children. Only Commissioner Mills

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responded, through a subordinate, and then only with a pro forma referral to the inadequate state

•

Education Department dispute resolution process now in place.

149. The August 7, 2003 letter, of course, told Commissioner Mills nothing he did not

•

already know. Upon information and belief, if the State Defendants performed even a cursory review of the programs and policies of the School District Defendants - more than a cursory

review is required by the McKiuney-Vento Act and New York State Jaw- they must have been

•

aware of the almost total failure of the School District Defendants to seriously address the

various obstacles they erected preventing homeless children from enrolling in and staying in

public school. Further, on information and belief, Eastern Suffolk BOCES staff have

•

consistently brought violations to the State Defendants' attention on a regular basis over a period

of years, but the State Defendants have failed to take appropriate action.

•

150. The Social Services Defendants are also we11 aware of their failure to satisfy the

statutory and regulatory requirements vis-a-vis homeless children. Nonetheless, they have either

refused or have failed to take appropriate steps to bring their conduct within the requirements of

•

the Jaw.

151. Among other things, OTADA provides homeless persons and others receiving

benefits from OTADA with an opportunity to request a "fair hearing" before an administrative

•

law judge.

152. On information and belief, OTADA's own Administrative Law Judges have

•

found the Suffolk County Department of Social Services to be in violation of the laws mandating

appropriate transportation for homeless children to public schools. For example, on January 29,

2003, Suffolk County Department of Social Services was ordered by Principal Administrative

•

Law Judge Philip Nostramo to conduct a review of its cases and policies "to ensure that school

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transportation is provided to children of homeless families." (In the Matter of the Appeal of

•

Althea M., FH #3803657H.)

153. Rather than comply with this Order, Suffolk County Department of Social

Services requested "reconsideration" of the Order.

•

154. In a May 9, 2003 response to Suffolk County Department of Social Services'

request for "reconsideration," Principal Administrative Law Judge Philip Nostramo again urged

•

the Suffolk County Department of Social Services to work with State officials to achieve

appropriate transportation arrangements for homeless children.

155. Upon information and belief, the Suffolk County Department of Social Services

•

has not done so, and has failed to take any meaningful action in response to OTADA's finding

that SCDSS was failing to meet its statutory obligations to homeless children living in Suffolk

•

County . 156. In addition, in an October 2002 memorandum to all District Superintendents, and

School District Homeless Liaisons, Associate Commissioner Sheila Evans-Tranumn (a

•

Defendant in this action) conceded that the various obligations of the McKiuney-Vento Act,

among others, were "in effect and binding," and that

•

•

•
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•

"At the request of a parent or guardian, homeless students must be provided with

•

transportation to and from their school of origin."

•

"Parents and guardians, and unaccompanied youth, are [to be] fully informed of

all transportation services, including transportation to the school of origin, and are

assisted in accessing transportation services."

•

•

"A school selected must immediately enroll students in homeless situations, even

if they do not have required documents, such as school records, medical records,

proof of residency, or other documents. The term 'enroll' includes attending

classes and participating fully in school activities."

•

•

"States and LEAs must develop, review and revise their policies to remove

barriers to the enrollment and retention of children and youth in homeless

situations."

•

•

"Local Educational Agencies (LEAs) must, to the extent feasible, keep students in

homeless situations in their school of origin (defined as the school attended when

permanently housed, or the school in which they were last enrolled), unless it is

against the parent's or guardian's wishes."

•

"Liaisons must collaborate and coordinate with state coordinators and community

•

and school personnel responsible for the provision of education and related services to children and youth in homeless situations."

•

"Every LEA must designate an appropriate staff person as a local educational

agency liaison for students in homeless situations."

•

•

"Liaisons must ensure that ... [c]hildren and youth enroll in, and have full and

equal opportunity to succeed in, the schools of the LEA."

•

Injury to the Plaintiffs 157. As set forth above, as a result of Defendant's policies, custom, pattern and

practice, Plaintiffs have suffered and continue to suffer irreparable harm.

•

158. Plaintiffs in Class A routinely are denied an opportunity to continue to attend the

school of origin when they become homeless.

159. Plaintiffs in Class A routinely are forced to transfer to several different schools
•
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during the course of a single academic year as they move from one shelter placement to another

•

or to permanent housing.

160. Plaintiffs in Class A routinely are denied transportation services to enable them to

continue to attend their school of origin, or such services are substantially delayed, resulting in

•

missed schooling and lost educational opportunities.

161. Plaintiffs in Class A routinely are denied transportation services comparable to

•

those afforded other children who attend the same school.

162. Plaintiffs in Class A routinely are denied preschool or afterschool educational

services .

•

163. Plaintiffs m Class A routinely are denied appropriate identification and

assessment.

•

164. As a result of Defendants' conduct, Plaintiffs in Class A suffer educational and

psychological harm and experience developmental and social delays.

165. Plaintiffs in Class B routinely are denied an opportunity to state the best interests

•

of their children in school selection.

166. Plaintiffs in Class B, when they do express a desire to keep their homeless

children in a particular school, routinely have their wishes disregarded even when it is feasible to

•

keep their children at the selected school.

167. Plaintiffs have suffered setbacks in school performance due to missing school

•

because of a lack of transportation.

168. Plaintiffs have suffered setbacks in school performance and emotional difficulties

due to having to transfer in the middle of the school year.

•

169. Plaintiffs' injuries result from Defendants' failure to comply with the McKinney-

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Vento Act.

•

170. Plaintiffs have no adequate remedy at law.

CAUSES OF ACTION

COUNT I

•

VIOLATIONS OF 42 U.S.C. § 1983

171. Plaintiffs hereby repeat and incorporate by reference each of the allegations in the

foregoing paragraphs set forth above.

•

172. By implementing, authorizing, ratifying, tolerating, permitting, promulgating,

continuing to enforce, effectuating and/or acquiescing in the policies, practices and customs

•

pursuant to which homeless children are denied access to public education in Suffolk County,

Defendants have deprived and will continue to deprive each and every Plaintiff and members of

the Plaintiff classes of rights, remedies, privileges and immunities guaranteed to every citizen of

•

the United States, in violation of 42 U.S.C. § 1983, and of rights guaranteed by the Fourteenth

Amendment of the United States Constitution, Article XI, § I of the New York Constitution, the

•

McKinney-Vento Act, 42 U.S.C. §§ 11431 -11435, and New York Education Law§ 3209 and the regulations promulgated thereunder.

173. All Defendants have acted under pretense and color of state law and in their

•

individual and official capacities and within the scope of their employment. The Defendants'

acts described herein were beyond the scope of their jurisdiction, without authority of law, and in

abuse of their powers, and said Defendants acted willfully, knowingly, and with the specific

•

intent to deprive Plaintiffs of their constitutional rights secured by 42 U.S.C. § 1983, and by the

Fourth, Fifth, and Fourteenth amendments to the United States Constitution. Defendants have

•

conspired among themselves to do so (taking numerous overt steps in furtherance thereof), and

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failed to prevent one another from doing so .

•

174. Defendants knowingly violated Plaintiffs' legal and constitutional rights, and have

not acted in good faith.

175. As a direct and proximate result of the misconduct and abuse of authority detailed

•

above, each and every Plaintiff and members of the Plaintiff classes suffered and continue to

suffer injury.

•

176. If Defendants' policies, practices and customs of denying homeless children equal

access to public school education is not enjoined, the named Plaintiffs and the members of the

Plaintiff classes will be subjected to immediate and irreparable injury for which no adequate

•

remedy at law exists in that members of the Plaintiff class will suffer continued violations of

their rights under the Fourteenth Amendment of the United States Constitution, Article XI, § 1 of

•

the New York Constitution, the McKinney-Vento Act, 42 U.S.C. §§ 11431- 11435, and New

York Education Law§ 3209 and the regulations promulgated thereunder.

COUNT II

•

VIOLATIONS OF THE MCKINNEY-VENTO ACT
177. Plaintiffs hereby repeat and incorporate by reference each of the allegations in the

foregoing paragraphs set forth above.

•

178. The McKinney-Vento Act seeks to provide homeless children with "equal access

to the same free, appropriate public education, including a public preschool education, as

provided to other children and youth." 42 U.S.C. § 11431(a).

•

179. Under 42 U.S.C. § 11432(£), the State Defendants are obligated to appoint a

Coordinator of Education of Homeless Children to assess the scope ofhomelessness in the public

•

schools, to develop and implement a plan for educating homeless children, to report to the

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federal government and to facilitate coordination among the agencies that educate and provide

•

social services to homeless children and families, and to ensure local educational agency

compliance with the Act. Upon information and belief, the State Defendants have failed to meet

these obligations by, among other things, failing to make an adequate study of the extent of the

•

problem of homeless students, by failing to implement an appropriate plan for educating

homeless children, and by failing to coordinate among the various entities responsible for

•

providing educational and social services to the homeless.

180. The State Defendants have failed to implement the plan submitted to the United

States Secretary for Education under 42 U.S.C. § 11432(g)(l) for the appropriate education of

•

homeless children.

181. The State Defendants have failed to set forth appropriate procedures for the

•

"prompt resolution of disputed regarding the educational placement of homeless children and youth" as required by 42 U.S.C. § 11432(g)(l)(A), and the School District Defendants have

failed to implement the procedures that have been promulgated.

•

182. The State Defendants have failed to establish programs and procedures to ensure

that "homeless children have equal access to the same public preschool programs, administered

by the State agency, as provided to other children" and that homeless children can participate in

•

before and after school programs as mandated by 42 U.S.C. § 11432(g)(l)(F).

183. The Defendants have failed to address the impediments to enrollment caused by

•

transportation issues and residency and record requirements, in violation of 42 U.S.C.

§ 11432(g)(1)(F), and have failed to develop, "review and revise, policies to remove the barriers

to the enrollment and retention of homeless children and youth" in Suffolk County in violation of

•

42 u.s.c. § 11432 (g)(l)(l).

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184. The Defendants have failed to "adopt policies and practice to ensure that

•

homeless children and youth are not stigmatized or segregated" as required by 42 U.S.C. § 11432

(g)(1 )(J)(i).

185. The School District Defendants have failed to provide homeless children with

•

"comparable services" as defined in 42 U.S.C. § 11432(g)(4).

186. The School District Defendants have failed to "coordinate with local social

•

service agencies and other agencies or programs providing services" to homeless children and

their families, as required under§ 11432(g)(6) and (9).

187. The School District Defendants have failed to "review and revise any policies that

•

may act as barriers to the enrollment of homeless children and youth in schools," as required

under§ 11432(g)(6) and (9).

•

188. Defendants have violated the rights of the Plaintiffs and the Plaintiff classes under the McKinney-Vento Act, 42 U.S.C. §§ 11431- 11435.

COUNT III

VIOLATIONS OF NEW YORK STATE EDUCATION LAW § 3209

•

189. Plaintiffs hereby repeat and incorporate by reference each ofthe allegations in the

foregoing paragraphs set forth above.

•

190. Plaintiffs of Class A constitute "homeless children" as defined in New York

Education Law§ 3209 (1)(a)(1) as they lacked a fixed, regular and adequate nighttime residence

or occupy shelters or placed not ordinarily used as a regular sleeping accommodation for human

•

beings.

191. Plaintiffs have been denied the right to attend a public school in the "school

•

district of origin" or the "school district of current location" as those terms are defined in New

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York Education Law§ 3209 (l)(c) and (d).

•

192. Defendants have failed to honor the right of homeless children and their families

in Suffolk County to designate the school of their choice under New York Education Law§ 3209

(2)(a) through (f) .

•

193. Defendants have failed to provide "for the transportation of each homeless child"

to and from public school pursuant to New York Education Law§ 3209 (4)(a) through (e).

•

194. The Defendants have failed to implement an appropriate or adequate "regional

placement plan," as defined in New York Education Law § 3209 (1)(e) that provides a

comprehensive approach to educational placements for homeless children.

•

195. The Commissioner of Education and NYSED have failed, as required by New

York Education Law § 3209 (5)(a), to develop an appropriate plan to "ensure coordination and

•

access to education for homeless children" and have failed to conduct an appropriate annual

review of such plan.

196. The Commissioner of Education and NYSED have failed to periodically monitor

•

school districts' compliance with New York Education Law § 3209, as required by subsection

(5)(b).

197. The School District Defendants have failed to "review and revise any local

•

regulations, policies or practices that may act as barriers to the enrollment or attendance of

homeless children in school or their receipt of comparable services" as required under subsection

•

5(b) ofNew York Education Law§ 3209.

198. The School District Defendants have failed to comply with §§ 722(g)(3 - (7) of

the McKinney-Vento Act, as required by subsection 2-a of New York Education Law§ 3209.

•

199. The Social Services Defendants have failed to provide homeless children with

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"suitable clothing, shoes, books, food, transportation and other necessaries" to enable them to

•

attend school, as required by subsection 6 ofNew York Education Law§ 3209.

200. Defendants have violated the rights of the Plaintiffs and the Plaintiff classes under

the McKinney-Vento Act, 42 U.S.C. §§ 11431- 11435.
• COUNT IV VIOLATIONS OF THE NEW YORK CONSTITUTION, ARTICLE XI,§ 1

•

201. Plaintiffs hereby repeat and incorporate by reference each of the allegations in the

foregoing paragraphs set forth above.

202. Article XI,§ 1 of the New York State Constitution binds the State ofNew York to

•

"provide for the maintenance and support of a system of free common schools, wherein all the

children of this state may be educated."

•

203. The Defendants have failed to provide a basic and sound education to the homeless children of Suffolk County because they have failed to enroll or sustain the enrollment

of such children in the public schools.

•

204. The Defendants have failed to provide for a system of schools in which all the

children of New York State may be educated. Specifically, the system established by the

Defendants fails to provide a system of free public schools for homeless children, by denying

•

them continual access to public school or refusing to enroll them in or transport them to an

appropriate public school.

•

205. Plaintiffs have been injured as a proximate result of Defendants' violations of

Plaintiffs' rights under Article XI,§ 1 of the New York State Constitution.

•

COUNTY
VIOLATIONS OF THE UNITED STATES CONSTITUTION, 14TH AM.,§ 1

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206. Plaintiffs hereby repeat and incorporate by reference each of the allegations in the

•

foregoing paragraphs set forth above.

207. Under the 141h Amendment to the United States Constitution, § 1, no State shall

•

"deny any person within its jurisdiction the equal protection of the laws."

208. Public education plays a pivotal role in maintaining the fabric of society and

promoting the social, economic and intellectual well-being of the individual. Denial of public

•

education to homeless children forecloses an important means by which such children and their

families can alleviate their plight.

•

209. The Defendants have violated the Plaintiffs' rights to Equal Protection under the

law by systematically refusing and failing to provide the same access to a free public school

education enjoyed by students and families of children who are not homeless.

•

210. Defendants' actions in denying to the Plaintiffs what is made available to all other

residents of Suffolk county were performed without any appropriate basis justification sufficient

to overcome Plaintiffs' substantial interests.

•

211. Plaintiffs have been injured as a proximate result of Defendants' violations of

Plaintiffs' rights under Amendment 14, § 1 of the United States Constitution.

•

COUNT VI

DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. §§ 2201 AND 2202

212. Plaintiffs hereby repeat and incorporate by reference each of the allegations in the

•

foregoing paragraphs set forth above.

213. As set forth above, there is an actual controversy between the Plaintiffs and the

Defendants concerning the Defendants' failure to comply with the requirements of the
•
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McKinney-Vento Act, New York Education Law§ 3209 and the State and Federal Constitutions

•

with respect to the provisions of educational and related services to homeless children and their

families.

214. Pursuant to 28 U.S.C. §§ 2201 and 2202, the Plaintiffs seek: (1) a declaratory

•

judgment stating that the Defendants have violated the McKinney-Vento Act, New York

Education Law § 3209 and the New York and United States Constitutions by erecting,

•

maintaining and failing to remove obstacles to the enrollment and attendance of homeless

children in the public schools of Suffolk County.

•

JURY DEMAND

The Plaintiffs hereby request a trial by jury on all issues so triable.

•

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually and on behalf of all persons similarly situated, pray that

this Court:

•

A. Grant a temporary restraining order and preliminary injunction ordering

Defendants to enroll homeless students in their designated schools and to provide uninterrupted

•

transportation to and from school, beginning immediately and for the duration of their

homelessness and remainder of the current school year, for the Plaintiffs;

B. Certify this case as a class action under Fed. R. Civ. P. 23(b)(2);

•

c. Declare that Defendants' policies, custom, pattern and practice as described

herein violate the McKinney-Vento Act, the United States and New York State Constitutions,

•

New York State Education Law § 3209, and the regulations promulgated under§ 3209 and the

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McKinney-Vento Act;

•

D. Preliminarily and permanently enJOin Defendants from keeping in effect,

maintaining, or encouraging any of the policies, custom, pattern or practice declared to be

violative oflaw;

•

E. Direct the Defendants to submit to the Court a comprehensive remedial plan

designed to cure their violations of law, and bring them into compliance with the law;

•

F. Award Plaintiffs their costs and reasonable attorneys' fees; and

G. Award such other and further relief as the Court may deem appropriate.

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Case 2:04-cv-00705-ADS-ARL Document 1 Filed 02/20/04 Page 51 of 51 PageID #: 51

Dated: February 20, 2004
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Respectfully submitted,
;tt.m,:7080) Christopher J. Garvey (CG-3323) Goodwin Procter LLP 599 Lexington Avenue New York, New York 10022 Tel: (212) 813-8800 Fax: (212) 355-3333

Deborah Berger (DB-1111)

Long Island Advocacy Center, Inc.

•

490 Wheeler Road, Suite 165 C Hauppauge, New York 11788

Tel: (631) 234-0467

Fax: (631) 234-4069

Of counsel:

·~

Maria Foscarinis (MF-3647)

Lewis M. Wasserman (LW-7134)

National law Center on Homelessness

Wasserman Steen LLP

and Poverty

50 Medford Avenue

1411 K Street, N.W., Suite 1400

•

Washington, D.C. 20005 Tel: (202) 638-2535

Patchogue, New York 11772 Tel: (631) 758-3367 Fax: (631) 758-3369

Fax: (202) 628-2737

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Attorneys for Plaintiffs

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 Case 2:04-cv-00705-ADS-ARL Document 126 Filed 10/23/04 Page 1 of 30 PageID #: 227

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------X NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, R.I., individually, and as parent and natural guardian of A.B., a minor child, M.W., individually, and as parent and guardian of Da.W., Di.W., Dq. W., T.H. and S.J., minor children, M.K., individually, and as parent and natural guardian of S.P., a minor child, T.K., and N.K., individually, and as a parent and natural guardian of K.K., on behalf of themselves and all those similarly situated, R.C., individually, and as parent and natural guardian of J.C., and on behalf of themselves and all those similarly situated, C.T., individually and as grand parent and natural guardian of M.W., D.M., individually and as parent and natural guardian of M.M.,

-against-

Plaintiffs,

MEMORANDUM OF DECISION AND ORDER 04 CV 0705 (ADS) (ARL)

STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT, RICHARD P. MILLS, as Commissioner of Education of the State of New York; SHEILA EVANS-TRANUMN, as Associate Commissioner of Education of the State of New York; PATRICIA MCGUIRK, as Program Manager for the Homeless of the New York State Education Department; NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, ROBERT DOAR, as Acting Commissioner of the New York State Office of Temporary and Disability Assistance,

(caption continues on next page)

Case 2:04-cv-00705-ADS-ARL Document 126 Filed 10/23/04 Page 2 of 30 PageID #: 228
SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, JANET DEMARZO, as Commissioner of the Suffolk County Department of Social Services, DAN HICKEY,as Associate Commissioner of the Suffolk County Department of Social Services,and JOHN DOE, School Districts 1-10,
Defendants. ------------------------------------------------------------X APPEARANCES:
GOODWIN PROCTER LLP Co-Counsel for the Plaintiffs 599 Lexington Avenue New York, NY 10022
By: Christopher J. Garvey, Esq. Jeffrey Alan Simes, Esq., Of Counsel
LONG ISLAND ADVOCACY CENTER Co-Counsel for the Plaintiffs 490 Wheeler Road Hauppauge, NY 11788
By: Deborah R. Berger, Esq., Of Counsel
WASSERMAN & STEEN LLP Co-Counsel for the Plaintiffs 50 Medford Avenue Patchogue, NY 11772
By: Lewis M. Wasserman, Esq., Of Counsel
NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY Co-Counsel for the Plaintiffs 1411 K Street, N.W., Suite 1400 Washington, D.C. 20005
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By: Maria Foscarinis, Esq., Of Counsel
NEW YORK OFFICE OF THE ATTORNEY GENERAL Attorneys for the Defendants State of New York, New York State Education Department, Richard P. Mills, Sheila Evans-Tranumn, Patricia McGuirk, New York State Office of Temporary and Disability Assistance, and Robert Doar 300 Motor Parkway, Suite 205 Hauppauge, NY 11788
By: Denis McEligott, Assistant Attorney General Susan M. Connolly, Assistant Attorney General
CHRISTINE MALAFI, SUFFOLK COUNTY ATTORNEY Attorney for the Defendants Suffolk County Department of Social Services, Janet Demarzo, and Dan Hickey H. Lee Dennison Bldg. 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788-0099
By: Lori L. Pack, Assistant County Attorney SPATT, District Judge.
This action, commenced by parents of homeless children that are residing in Suffolk County, New York, seeks enforcement of the McKinney-Vento Act, 42 U.S.C. §§ 11431–35, and the Equal Protection Clause of the United States Constitution. Presently before the Court are two motions: (1) a motion by the defendants to dismiss the action; and (2) a motion by the plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), for class certification.
I. BACKGROUND
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The plaintiffs in this action are homeless children and their parents living in Suffolk County, New York. They seek declaratory and injunctive relief against the State of New York, New York State Education Department, Richard P. Mills, as Commissioner of Education of the State of New York, Sheila Evans-Tranumn, as Associate Commissioner of Education of the State of New York, Patricia Mcguirk, as Program Manager for the Homeless of the New York State Education Department, New York State Office of Temporary and Disability Assistance, Robert Doar, as Acting Commissioner of the New York State Office of Temporary and Disability Assistance, Suffolk County Department of Social Services, Janet Demarzo, as Commissioner of the Suffolk County Department of Social Services, Dan Hickey, as Associate Commissioner of the Suffolk County Department of Social Services and John Doe, School Districts 1-10, (collectively the “Defendants”), for alleged violations of the McKinney-Vento Act (“McKinney Act”) and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs seek to invoke the provisions of 42 U.S.C. § 1983 to enforce the terms of the McKinney Act and the Constitution.
The Plaintiffs allege that the Defendants are responsible for a systematic failure to provide homeless children in Suffolk County, New York, access to education by failing to: (1) locate and ensure enrollment of homeless children; (2) provide uninterrupted
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transportation to enable homeless children to attend school; (3) provide immediate enrollment to homeless children upon becoming homeless; and (4) provide education services that are comparable to the services that nonhomeless children receive. The Plaintiffs allege that homeless children are entitled to these educational services through the provisions of the McKinney Act and the Constitution.
The proposed class representatives are six homeless families with school-age children in Suffolk County who all allege that they have faced obstacles in maintaining enrollment in school. From the allegations in the complaint, a common theme emerges. All of the children at some time became homeless and, as a consequence of their parents’ misfortune, missed weeks and sometimes months of school due to failures in transportation or enrollment. For example, the W. family has four school-age children and one pre-school age child who was denied access to Head Start. After becoming homeless, the family moved from shelter to shelter, and with each move, transportation to and from school stopped, thus causing the children to miss school for weeks at a time. Another plaintiff, S.P., was out of school for more than two months while various agencies tried to determine who should provide transportation for the child. In another example, A.B., was attending school in the Middle Country Central School District until her family was placed in emergency housing in Copaigue. Both school districts refused to admit the child—Middle Country insisted she attend the Copaigue School District while Copaigue declined to admit A.B.
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without the proper paperwork. As a result, A.B. missed months of school. Because a motion to dismiss is potentially dispositive, the Court will discuss that
motion first, followed by the motion for class certification. II. DISCUSSION
A. Motion to Dismiss A court may grant a Rule 12(b)(6) motion to dismiss for failure to state a claim only
when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Phillip v. University of Rochester, 316 F.3d 291, 293 (2d Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)); Kaltman-Glasel v. Dooley, 156 F. Supp. 2d 225, 226 (D. Conn. 2001). The function of the Court is not to weigh the evidence that may be presented at trial but instead the Court must determine if the claims are legally sufficient. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985); see also King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). The Court must construe all reasonable inferences in favor of the plaintiff and accept the allegations contained in the claims as true. See Desiderio v. National Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999).
In deciding a Rule 12(b)(6) motion a court may consider “only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken . . . .” Samuels v. Air Transport Local
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504, 992 F.2d 12, 15 (2d Cir. 1993). Therefore, a court must evaluate whether the allegations in the complaint can sustain a cause of action under applicable law, and should only grant the motion to dismiss if the plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S. Ct. 992, 998, 152 L. Ed. 2d 1 (2002); Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998).
Actions may be brought pursuant to section 1983 against state actors to enforce rights created by federal statutes and the Constitution. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 2502, 65 L. Ed. 2d 555 (1980). In order to seek redress through section 1983, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359, 137 L. Ed. 2d 569 (1997). Here, the Plaintiffs seek to redress the right of homeless children and youths to have access to the same educational services that are available to children who are not homeless. The Plaintiffs allege that this right is found in the McKinney Act and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Therefore, the Court must examine whether that right does exists under the McKinney Act or the Constitution.
1. The McKinney-Vento Act The McKinney-Vento Act was enacted in 1987 “to provide urgently needed assistance to protect and improve the lives and safety of the homeless . . . .” Pub. L. No.
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100-77, 101 Stat. 525 (codified at 42 U.S.C. § 11431(1988)). The Act required states to assure that each child of a homeless individual and each homeless youth had access to a free and appropriate public education. 42 U.S.C. § 11431. Under the Act, Congress authorized the Secretary of Education to grant funds to the States that comply with the provisions of the Act. Id. § 11432.
In 2002, the McKinney Act was reauthorized as part of the No Child Left Behind Act (NCLBA). Pub. L. No. 107-110, 115 Stat. 1989. As part of the reauthorization, the McKinney Act underwent a general revision, but the purpose of the Act remained to “ensure that each child of a homeless individual and each homeless youth has equal access to the same free, appropriate public education, including a public preschool education, as provided to other children and youths.” 42 U.S.C. § 11431 (2004). Congress stated that “[h]omelessness alone is not sufficient reason to separate students from the mainstream school environment.” Id. Thus, “[h]omeless children and youths should have access to the education and other services” that are needed to meet “student academic achievement standards to which all students are held.” Id.
A court’s role in determining whether personal rights exist in the section 1983 context is to initially determine whether Congress intended to confer individual rights upon a class of persons. Gonzaga University v. Doe, 536 U.S. 273, 285, 122 S. Ct. 2268, 2276, 153 L. Ed.2d 309 (2002). “For a statute to create such private rights, its text must be
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‘phrased in terms of the persons benefitted.’ ” Id. at 284, 122 S. Ct. at 2275 (quoting Cannon v. University of Chicago, 441 U.S. 677, 692, n. 13, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979)); accord Rabin v. Wilson-Coker, 362 F.3d 190 (2d Cir. 2004). In addition, a court must “determine if Congress foreclosed a § 1983 remedy either expressly or impliedly through the creation of a comprehensive administrative enforcement scheme.” Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 783 (2d Cir. 2002) (citing Blessing, 520 U.S. at 342).
Legislation enacted pursuant to the spending authority of Congress must clearly manifest an “unambiguous intent” to confer individual rights. Gonzaga, 536 U.S. at 280, 122 S. Ct. at 2273. This standard recognizes that the typical remedy for state noncompliance with federal spending legislation is action by the Federal Government to terminate the funds, rather than a private cause of action for noncompliance. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981). Thus, a significant part of a court’s inquiry is whether the federal agency charged with administering the funds has procedures by which individuals can complain about alleged failures by the state entrusted with those funds. See Gonzaga, 536 U.S. at 280, 122 S. Ct. at 2273.
In Gonzaga, the Supreme Court recently found that a provision in the Family Educational Rights and Privacy Act (FERPA) did not create individual rights because the focus of the statute was “two steps removed from the interests of individual students and
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parents.” Id. at 287, 122 S. Ct at 2277; see 20 U.S.C. § 1232g(b)(1). In other words, “the statute only forbade the government from funding schools that demonstrated a ‘policy or practice’ of disclosing student records.” Rabin v. Wilson-Coker, 362 F.3d 190, 201 (2d Cir. 2004) (quoting Gonzaga, 536 U.S. at 287, 122 S. Ct. at 2277).
The Court in Gonzaga explained that FERPA focuses on the aggregate impact of releasing educational records, rather than being concerned with “whether the needs of any particular person have been satisfied.” Id. at 288. The Court noted that this was evident by the fact that recipient institutions need only “comply substantially” to receive funding. Id. at 288, 122 S. Ct. at 2278; see also Suter v. Artist M., 503 U.S. 347, 358, 112 S. Ct 1360, 1367, 118 L. Ed. 2d 1 (1992) (holding that no enforceable right under the Adoption Assistance Act of 1980, which required States receiving funds to have a “plan” to make “reasonable efforts” to keep children out of foster homes).
The Court in Gonzaga recognized that in the past, spending legislation was held to confer individually enforceable rights if the provision was focused on an individual class of persons and imposed a mandatory obligation on the State. For example, in Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 107 S. Ct. 766, 93 L.Ed.2d 781 (1987), the Court held that a provision of the Public Housing Act conferred individual rights on the ground that the statute unambiguously imposed a “mandatory [rent] limitation [on States, which] focus[ed] on the individual family and its income.” Id. at 430,
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107 S. Ct. at 773–74. In Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 522, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990), the Court held that a reimbursement provision of the Medicare Act conferred individual rights, on the ground that the statute “impose[d] a binding obligation on States participating in the Medicaid program to adopt reasonable and adequate rates.” Wilder, 496 U.S. at 512, 110 S. Ct. at 2518–19.
In both Wilder and Wright, “Congress left no doubt of its intent for private enforcement” because the statutes: (1) imposed a mandatory requirement on the States; (2) provided for specific entitlements; (3) conferred entitlements on specific individuals, and (4) did not provide individuals with sufficient administrative means of enforcing the requirement against States that failed to comply. See Gonzaga, 536 U.S. at 280–81, 122 S. Ct. at 2274.
In light of these guidelines, it is clear that Congress intended that the McKinney Act confer individually enforceable rights. Indeed, the Court of Appeals for the District of Columbia has held that the McKinney Act confers enforceable rights on homeless children. Lampkin v. District of Columbia, 27 F.3d 605, 611 (D.C. Cir. 1994). First, the Act imposes a mandatory rather than horatory requirement on the State. The Act states that “[h]omeless children and youths should have access to the education and other services that
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such children and youths need . . . .” 42 U.S.C. § 11431 (emphasis added). In order to
provide such services, States, including New York, are granted funds which
shall be used for the following: (1) To carry out the policies set forth in section 11431 of this title in the State. (2) To provide activities for, and services to, homeless children, including preschool-aged homeless children, and youths that enable such children and youths to enroll in, attend, and succeed in school, or, if appropriate, in preschool programs. (3) To establish or designate an Office of Coordinator for Education of Homeless Children and Youths in the State educational agency in accordance with subsection (f) of this section. (4) To prepare and carry out the State plan described in subsection (g) of this section. (5) To develop and implement professional development programs for school personnel to heighten their awareness of, and capacity to respond to, specific problems in the education of homeless children and youths.
42 U.S.C.A. § 11432. These requirements are not optional and “substantial compliance”
or “reasonable efforts” is insufficient under the Act.
Second, the Act provides for specific entitlements by directing local educational
agencies to carry out specific activities. In particular, the local educational agency is
required to:
(i) continue the child’s or youth’s education in the school of origin for the duration of homelessness–
(I) in any case in which a family becomes homeless between academic years or during an academic year; or (II) for the remainder of the academic year, if the child or youth becomes permanently housed during an academic year; or
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(ii) enroll the child or youth in any public school that nonhomeless

stud ents who live in the atten danc e area in whic h the child or yout h is actu ally living are eligi ble to atten d.

42 U.S.C.A. §§ 11432(g)(3)(A). In addition, the Act specifically directs that local educational

agencies—

(i) shall immediately enroll the homeless child or youth, even if the child or youth is unable to produce records normally required for enrollment, such as previous academic records, medical records, proof of residency, or other documentation. (ii) The enrolling school shall immediately contact the school last attended by the child or youth to obtain relevant academic and other records.

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(iii) If the child or youth needs to obtain immunizations, or immunization or medical records, the enrolling school shall immediately refer the parent or guardian of the child or youth to the local educational agency liaison designated under paragraph (1)(J)(ii), who shall assist in obtaining necessary immunizations, or immunization or medical records . . . . 42 U.S.C.A. § 11432(g)(3)(C). Thus, unlike other spending provisions that do not confer individually enforceable rights, “the McKinney Act not only inform[s] the State in great detail on how its plan is to be implemented, [it] impose[s] obligations that are independent of the plan.” Lampkin, at 611. Third, the entitlements conferred under the Act are directed at specific individuals. Statutes that focus on specific individuals rather than policies or practices indicate Congressional intent to confer individually enforceable rights. Gonzaga, 536 U.S. at 287, 122 S. Ct. at 2277 (stating that FERPA’s provisions were “two steps removed from the interests of individuals . . .”); see also Rabin v. Wilson-Coker, 362 F.3d 190, 201 (2d Cir. 2004) (explaining that “the statute only forbade the government from funding schools that demonstrated a ‘policy or practice’ of disclosing student records”). By directing local educational agencies, rather than recommending statewide policies, the Act confers entitlements to each homeless child, including: (1) the right of the parent or guardian to choose the school of origin or the school where students enroll in the location; (2) immediate assistance in obtaining immunizations or medical records necessary for enrolment in the new school; (3) immediate enrollment in the school in which enrollment
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is sought; (4) comparable transportation services to and from school. See 42 U.S.C. § 11432(g)(3).
Finally, the Act provides no “mechanisms for the administrative enforcement of the beneficiaries’ rights.” Lampkin, 27 F.3d at 611. Under the Act, the Secretary of Education is authorized to “make grants” and “review” state plans, but is not authorized to take any enforcement for violations of the Act. 42 U.S.C. § 11434. In Gonzaga, the Court recognized that Congress chose to provide an enforcement mechanism in FERPA for investigating and adjudicating violations. Gonzaga, 536 U.S. at 288, 122 S. Ct. at 2278. The Court stated that “[t]hese administrative procedures squarely distinguish this case from Wright and Wilder, where an aggrieved individual lacked any federal review mechanism . . . and further counsel against our finding a congressional intent to create individually enforceable private rights.” Id. at 291, 122 S. Ct. at 2279. Under the McKinney Act, an aggrieved individual has no recourse against the federal agency that is granting the funds, which strongly leads to the conclusion that Congress intended to provide an individual right enforceable under § 1983.
Defendants reliance on Association of Community Organizations for Reform Now v. New York City Dept. of Educ., 269 F. Supp.2d 338, 339 (S.D.N.Y. 2003) (“ACORN”) is misplaced. That case held that certain provisions of the No Child Left Behind Act did not create individual rights enforceable under section 1983. Although the McKinney Act was
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reauthorized as part of the NCLBA, the McKinney Act pre-dated the NCLBA and differs in several important aspects.
First, the NCLBA has an aggregate focus in that it is a comprehensive education reform statute aimed at strengthening schools by holding States and local education agencies accountable. See id. at 340. In contrast, the purpose of the McKinney Act is to ensure that each homeless child is given an equal opportunity to access the educational system that the NCLBA strives to enhance.
Second, although both laws call for the State to adopt and implement a plan, the focus of the NCLBA is whether local educational agencies are maintaining “adequate yearly progress.” 20 U.S.C. § 6316(a)(1)(A); see ACORN, 269 F. Supp. 2d at 344 (“The provisions of the NCLBA . . . focus on two entities—states and local educational agencies . . . .”). On the other hand, the McKinney Act specifically focuses on how to ensure that each homeless child receives the same opportunity and access to education as a nonhomeless child. Congress did not include in the McKinney Act that “adequate yearly progress” would be sufficient. The Act specifically provides that homeless children “should have access to education and other services” and requires local educational agencies to ensure that children not miss school due to the misfortunes of their parents. 42 U.S.C. §§ 11431(4) & 11432(g)(3).
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Finally, the NCLBA expressly gives the Secretary of Education authority to impose penalties for noncompliance. 20 U.S.C. § 6311(g)(2). Under the NCLBA, “there are remedies available to the Secretary of Education to take action against a federal fund recipient who fails to comply with legal requirements imposed by a federal education statute . . . .” ACORN, 269 F. Supp. 2d at 342. This is in stark contrast to the McKinney Act which lacks any federal enforcement provision or individual remedy.
Thus, the McKinney Act, as previously held by Lampkin, evidences a clear and unambiguous intent of Congress to create individually enforceable rights. The Act provides mandatory entitlements to homeless children by clear and precise direction to state and local officials. The statute obligates State and local agencies to perform in a specific way to ensure that homeless children are provided an education on par with that of nonhomeless children. Finally, the lack of an enforcement scheme indicates that Congress intended to confer rights on a particular class of persons. Consequently, the Plaintiffs can maintain an action under section 1983 to enforce provisions of the McKinney Act.
2. The Equal Protection Clause The Fourteenth Amendment of the United States Constitution guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313
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(1985). Plaintiffs in this case claim that homeless children in Suffolk County are not receiving the same access to public school education enjoyed by nonhomeless children.
Discriminatory treatment by the government is sufficient to trigger assessment under the Equal Protection Clause. See Lewis v. Thompson, 252 F.3d 567, 590 (2d Cir. 2001). If government action interferes with a “fundamental right” or discriminates against a “suspect class,” it must be reviewed using the strict scrutiny analysis. Absent these circumstances, government action will ordinarily survive an equal protection challenge so long as the action is rationally related to a legitimate governmental purpose. Plyler v. Doe, 457 U.S. 202, 216–17, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). Further, in Plyler, the Supreme Court acknowledged that although public education is not a fundamental right granted to individuals by the Constitution, neither is it “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.” Id. at 221. The Court reasoned that education was so important to the American way of life and to the function of state and local governments that any denial of education must be justified by some “substantial goal” of the State. Id. at 223–24. This analysis amounts to a “heightened” or “intermediate scrutiny” with respect to government action that results in deprivation.
Since Plyler, the Supreme Court has declined to extend heightened scrutiny in regard to education beyond the “unique circumstances” of Plyler. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988) (holding that a
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public school district’s charging of a user fee for bus transportation to school did not violate the Equal Protection Clause). However, the Supreme Court implied that statutes which create circumstances that involve the penalization of children for the “illegal conduct of their parents” and risk significant and enduring adverse consequences to children should be reviewed using the Plyler rationale. Id. Indeed, the Second Circuit applied the rationale of Plyler when it ruled that the denial of eligibility for welfare benefits to children solely because of their mothers’ alien status violated the Equal Protection Clause. Lewis v. Thompson, 252 F.3d 567, 591 (2d Cir. 2001). In determining the whether to apply heightened scrutiny, the court stated that the denial of public education would present an even more compelling case for heightened scrutiny than the postponement of welfare benefits.
In the instant case, the circumstances are significantly similar to those in Plyler. The Plaintiffs’ contend that homeless children in Suffolk Country are not receiving the same access to public school education enjoyed by other children. Thus, taking the Plaintiffs’ factual allegations as true, the Defendants appear to be penalizing these homeless children because of the misfortunes or misdeeds of their parents. Further, in exacting the penalty, the State Defendants are risking significant and enduring adverse consequences to the children by denying them access to a public education. On its face, the Plaintiffs’ warrants the “heightened scrutiny” standard set forth in Plyler.
Under heightened scrutiny review, the Plaintiffs are not required to negate any 19

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reasonable conceivable set of facts that could provide any rational basis for the classification of the children, as required when utilizing rational basis review. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). In fact, the Defendants failed to assert even one rational basis for the homeless children transportation procedures currently in place in Suffolk County. Therefore, Plaintiffs have met their burden of stating a claim under the Equal Protection Clause, which may be enforced under section 1983. As such, the Defendants’ motion to dismiss Planitiffs’ cause of action for failing to assert a federal right under section 1983 is denied. B. Class Certification
In determining whether a putative class qualifies for certification, the only question is whether the requirements of Fed. R. Civ. P. 23 have been met. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974). The Court assumes the allegations in the complaint to be true, and the burden is on the plaintiff to prove that the putative class meets the four threshold requirements of Rule 23(a) and satisfies the requirements of at least one of the categories enumerated in Rule 23(b). See In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 133 (2d Cir. 2001); Caridad v. MetroNorth Commuter RR, 191 F.3d 283, 291 (2d Cir. 1999); Marisol A. v. Giuliani, 126 F.3d 372, 374 (2d Cir. 1997); Vengurlekar v. Silverline Techs., Ltd., 220 F.R.D. 222, 226 (S.D.N.Y. 2003).
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In deciding certification, courts must take a liberal rather than a restrictive approach in determining whether the plaintiff satisfies these requirements and may exercise broad discretion in weighing the propriety of a putative class. See In re NASDAQ Market Makers Antitrust Litig., 169 F.R.D. 493, 504 (S.D.N.Y. 1996) (citing Korn v. Franchard Corp., 456 F.2d 1206, 1208-09 (2d Cir. 1972)); see also Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y May 2000). Whether the plaintiffs have stated a cause of action or will prevail on the merits is not a consideration for resolution of a motion for class certification. See Vengurlekar, 220 F.R.D. at 226. While the district court must engage in a “rigorous analysis” to establish whether the plaintiff has met its burden of proof as to certification, Caridad, 191 F.3d at 291, such a determination must not evolve into a “preliminary inquiry into the merits.” Eisen., 417 U.S. at 177.
Plaintiffs seek certification of a class defined as follows: Class A: All school-aged children (as defined by New York State Education Law) who, on or after September 1, 2001: (1) have lived, are living or will live in Suffolk County, New York; and (2) during such period have been, are, or will be “homeless” as defined in the McKinney-Vento Act, 42 U.S.C. § 11434A. and Class B: All parents, guardians or persons in a parental relationship for children in Class A, who, on or after September 1, 2001: (1) have lived, are living or will live in Suffolk County, New York; and (2) during such period have been,
21

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are, or will be “homeless” as defined in the McKinney-Vento Act, 42 U.S.C. § 11434A. Pls.’ Am. Compl. ¶ 117. In support of class certification, the Plaintiffs set forth reports, which lead to the inference that missed school days are not unique to the Plaintiffs in this action. The 20042006 Education of Homeless Children and Youth Program Report describes how pervasive the problem is: There are some school districts that have not grasped and/or acknowledged the legality of the [McKinney Act]. Consequently the gaps that exist are the same as the gaps that existed prior to the authorization of the McKinney-Vento Act due in part to the historical rise in the number of families affected by homelessness in Suffolk County. These gaps include: denials of registration/immediate attendance for school due to dispute of “homeless” declaration, lack of transportation back to the district of last attendance, inappropriateplacement,no placement,lengthy gaps in the provisionofservices and/or placement, unfair disciplinary actions and poor, or no, access to support services. These gaps are reported in the daily requests for services received by the Social Worker responsible for the Suffolk County advocacy program via the Homeless Children and Youth Grant. Simes Aff. Ex. A. Plaintiffs also allege that there are hundreds of children who are homeless throughout Suffolk County. According to information from Suffolk County’s Joint Task Force on Homelessness, 2,300 people and an estimated 1,400 children were living in emergency housing in November of 2002. The actual number of homeless children living in Suffolk County is unknown.
22

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1. Rule 23(a) To qualify for class certification, the plaintiff must first prove that the putative class meets the four threshold requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); see also In re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124, 132-33 (2nd Cir. 2001).
a. Numerosity Rule 23(a)(1), generally referred to as the numerosity requirement, requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “Impracticable,” in this context, is not to be confused with impossible. Rule 23(a)(1) only requires that, in the absence of a class action, joinder would be “difficult” or “inconvenient.” Vengurlekar, 220 F.R.D. at 227 (internal quotations and citations omitted). “Plaintiffs need not establish the precise number of potential class members since courts are empowered to make ‘common sense assumptions to support a finding of numerosity.’ ” Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001) (quoting German v. Fed. Home Loan Mortgage Corp., 885 F. Supp. 537, 552 (S.D.N.Y. 1995)).
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The Plaintiffs submit that some 2,300 residents of Suffolk County—including approximately 1,400 children—are homeless and live in emergency housing. Indeed, the submissions of the Defendants confirm that the school districts deal with hundreds of homeless children on a daily basis. But the Defendants argue that it would be practical for numerous homeless plaintiffs to commence individual suits and then have them joined because the members of the prospective class are geographically confined to Suffolk County, New York. This arguments lack any semblance of common sense or practicality.
In Koster v. Perales, the court noted that impracticability of joinder is “even more pronounced” when the plaintiffs are homeless. 108 F.R.D. 46, 50 (E.D.N.Y. 1985) (certifying a class of homeless families who were challenging government policies). “[H]omeless families are frequently homeless for short periods of time; thus, the actual membership of the class is in constant flux.” Id. Similarly in the instant case, the economic status and transience of most of the potential class members makes individual suits next to impossible. Accordingly, the Court finds that the Plaintiffs adequately satisfy the numerosity requirement of Rule 23(a)(1).
b. Commonality The commonality requirement set forth in Rule 23(a)(2) requires a showing that common issues of fact or law exist and that they affect all class members. However, the individual circumstances of the class members can differ without precluding class
24

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certification. See Vengurlekar, 220 F.R.D. at 227. “The critical inquiry is whether the common questions are at the core of the cause of action alleged.” Id. (internal quotations and citations omitted). Commonality is assumed where the plaintiffs seek declaratory relief as opposed to individual relief. Port Authority Police Benev. Ass'n, Inc. v. Port Authority of New York and New Jersey, 698 F.2d 150, 151 (2d Cir. 1983). The commonality element of Rule 23(a)(2) is considered a “minimal burden for a party to shoulder.” Lewis Tree Service, Inc., 211 F.R.D. 228, 231, (S.D.N.Y. Nov. 2002).
Here, the Plaintiffs have common issues of fact and law that affect all class members. Legally, the Plaintiffs challenge the failure of the Defendants to satisfy statutory and constitutional mandates to ensure homeless children are enrolled and transported to school. Factually, the Plaintiffs are similar in that they are all children who missed school in part due to the fact that they were homeless and were not enrolled in or provided adequate transportation to and from school.
The Defendants urge that the legal issue can only be decided on an individual basis because of the unique situation of each child. However, individualized relief is not what the Plaintiffs seek. The Plaintiffs are challenging how the practice and policy of the Defendants affects each individual child. Furthermore, because the proposed class members seek to enjoin a practice or policy, rather than individualized relief, commonality is assumed.
25

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Accordingly, the Court finds that the Plaintiffs have adequately proven the existence of common issues of fact and law among the putative class in satisfaction of the commonality requirement in Rule 23(a)(2).
c. Typicality Rule 23(a)(3), also known as the typicality requirement, requires that “each class member’s claims arise from the same course of events and [that] each class member makes similar legal arguments to prove [the] defendant’s liability.” Vengurlekar, 220 F.R.D. at 227. The typicality requirement is meant to ensure that the class representative is not subject to a unique defense which could potentially become the focus of the litigation. See id. “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993); see also Marisol A., 126 F.3d at 377 (holding that plaintiffs can meet the typicality requirement where “their injuries derive from a unitary course of conduct by a single system”). Here, the Plaintiffs’ central issue is whether the Defendants violated the McKinneyVento Act by failing to ensure that homeless children receive an education. The Defendants reject the notion that the Plaintiffs are typical of the putative class by pointing out the differences among each plaintiff. For example, the Defendants point out that one plaintiff has
26

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a psychiatric disability, another has attention deficit disorder, and another has emotional and social problems. However, these differences are irrelevant to the central issue, namely, that the Defendants are not ensuring transportation or enrollment of homeless children in school.
The Court notes that “typicality, a matter closely related to commonality, is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability.” In re Frontier Ins. Group, Inc. Securities Litigation, 172 F.R.D. 31, 40 (E.D.N.Y. 1997). Here, the putative class, including the Plaintiffs, put forth one claim based on the same set of facts, that is whether the Defendants have violated the McKinney Act and the Constitution due to the unfortunate fact of being homeless. Thus, the plaintiffs have proven that “the claims of the representative parties are typical of the claims or defenses of the class” and thus, have adequately satisfied the typicality requirement of Rule 23(a)(3).
d. Adequacy of Representation The Defendants urge that the named plaintiffs cannot adequately represent the interests of the class due to the individualized nature of their particular problems. Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Rule 23(a)(4). There is “no simple test for determining if a class will be adequately represented by a named plaintiff” and “each case must be approached on an individualized basis.” In Re Lilco, 111 F.R.D. at 672. In order to qualify, plaintiffs must
27

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“demonstrate that there is no conflict of interest between the named plaintiffs and other members of the plaintiff class.” Marisol A., 126 F.3d at 378.
Defendants’ contention, that the individualized problems of each plaintiff conflicts with the interests of the potential members of the class is unavailing. Plaintiffs seek broad based relief which would require the Defendants to ensure the education of homeless children. In this regard, the interests of the class members are identical despite the individualized problems of each plaintiff.
Defendants also allege that one of the plaintiff’s families is no longer homeless, and thus cannot maintain standing in the action. However, the Defendants do not explain how this will cause a conflict of interest. “[N]either a defense that may be asserted against a particular plaintiff nor the possibility that a plaintiff's claim may become moot will necessarily bar members of the class from obtaining the relief they seek.” Koster, 108 F.R.D. at 53 (E.D.N.Y. 1985). Accordingly, the Court finds that the Plaintiffs have satisfied the adequacy of representation requirement of Rule 23(a)(4).
2. Rule 23(b)(2) In addition to satisfying the four prerequisites established in Rule 23(a), the plaintiff must prove that the putative class is maintainable under at least one of the categories enumerated in Rule 23(b). See In re Visa Check, 280 F. 3d at 133. Here, the Plaintiffs request certification under Rule 23(b)(2). Under that rule, an action may be maintained as a
28

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class action when the “party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P.(b)(2).
The classic example of a class certification under Rule 23(b)(2) is where a party seeks to declare a law unconstitutional. Koster v. Perales, 108 F.R.D. 46, 54 (S.D.N.Y. 1985). Certification is also proper where a government entity refuses to comply with federal law. Id. Actions for injunctive relief will satisfy the requirements of Rule 23(b)(2) if the relief sought will benefit the entire class. See Nicholson v. Williams, 205 F.R.D. 92, 99 (E.D.N.Y. 2001); see, e.g., Marisol I., 929 F. Supp. 662, 692 (S.D.N.Y.1996); see also Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) (suggesting that Rule 23(b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief”).
Defendants argue that certification under Rule 23(b) is improper due to the individualized issues among the named Plaintiffs and the putative class members. The Court does not agree that the issues of the Plaintiffs or the putative class are materially unique. Plaintiffs seek, through requested injunctive and declaratory relief, to remedy alleged system-wide abuses that potentially impact each and every homeless child in Suffolk County, New York. In so far as the Plaintiffs ask for injunctive relief and predicate the lawsuit on the Defendants, the requirements of Rule 23(b)(2) are satisfied.
29

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Because the plaintiff has successfully fulfilled the requirements of Rule 23(a) and Rule 23(b)(2), the Court holds that certification of the putative class is proper.
III. CONCLUSION Based on the foregoing, it is hereby ORDERED, that the motion by the Defendants to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6) is DENIED, and it is further ORDERED, that the plaintiff’s motion for class certification pursuant to Fed. R. Civ. P. 23 is GRANTED in its entirety, and it is further ORDERED, that the parties are directed to proceed with the bench trial, commencing on October 27, 2004 at 9:00 a.m.

SO ORDERED.
Dated: Central Islip, New York October 23, 2004

s/ ARTHUR D. SPATT United States District Judge

30

 
 Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 1 of 38

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

NATIONAL LAW CENTER ON HOMELESSNESS AND

POVERTY, R.I., individually, and as parent and natural

guardian of A.B., a minor child, M.W., individually, and as parent and natural guardian ofDa.W., Di.W., Dq.W., T.H. and Civil Action No. 04 0705

S.J., minor children, M.K., individually, and as parent and

(ADS/ARL)

natural guardian of S.P., a minor child, T.K. and N.K.,

individually, and as parents and natural guardians of K.K., D.M., individually and as parent and natural guardian of M.M.,

C.T., individually and as grand parent and guardian ofM.W.,

and R.C., individually, and as parent and natural guardian of

J.C., on behalf of themselves and all those similarly situated, SETTLEMENT

Plaintiffs,

AGREEMENT AND

CONSENT ORDER

v.

STATE OF NEW YORK, NEW YORK STATE

F I L F. 0

*0 EDUCATION DEPARTMENT, RICHARD P. MILLS (as ~~.~, ··--c.::·-.-~:cE-:E NY
Comm1· ss·wner of Educatw· n of t11e State of New y or1c); U·S· D1v lr·d C l Li u' ' I . . .
SHEILA EVANS-TRANUMN (as Associate Commission~of OCT 0 .., 2004

Education ofthe State ofNew York); PATRICIA MCGUI~

' '

(as Program Manager for the Homeless of the New York State

Education Department); NEW YORK STATE OFFICE OF LONG ISLAND OFFICE

TEMPORARY AND DISABILITY ASSISTANCE, ROBERT

DOAR (as Acting Commissioner of the New York State Office

of Temporary and Disability Assistance), SUFFOLK

COUNTY DEPARTMENT OF SOCIAL SERVICES, JANET

5 DEMARZO (As Commissioner Of The Suffolk County
Department Of Social Services), DAN HICKEY (As Associate

,~

.

CSeormvimceiss)s,ioLnOerNOGfWTOheOSDufCfoElNk TCRouAnLtySDCeHpOarOtmLeDntIOSfTSoRciIalC~.rJ-/'..'r · S!I\

1Jt'll$'t 1S
e~S o~ER

"01..C~'ri?"DIJl'J'!lOlESS ~Ul? l
Oli

HAMPTON BAYS SCHOOL DISTRICT, MIDDLE COUNTRY SCHOOL DISTRICT, COPIAGUE UNION

~.ctif.1l!0'1~'•·!\\

FREE SCHOOL DISTRICT, SOUTH HUNTINGTON

SCHOOL DISTRICT, PATCHOGUE-MEDFORD SCHOOL

DISTRICT, WILLIAM FLOYD SCHOOL DISTRICT,

CENTRAL ISLIP SCHOOL DISTRICT, BAY SHORE

UNION FREE SCHOOL DISTRICT, SOUTH COUNTRY

SCHOOL DISTRICT, BRENTWOOD SCHOOL DISTRICT,

NORTH BABYLON SCHOOL DISTRICT, AMITYVILLE

SCHOOL DISTRICT, RIVERHEAD SCHOOL DISTRICT

and JOHN DOE SCHOOL DISTRICTS 1-10,

Defendants.

Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 2 of 38
',•

•.

BACKGROUND

This Settlement Agreement and Consent Order is entered into between the Plaintiffs and

Defendants Longwood Central School District, Hampton Bays School District, Middle Country

School District, Copiague Union Free School District, South Huntington School District,

Patchogue-Medford School District, Bay Shore Union Free School District, South Country

School District, Brentwood School District, North Babylon School District, Amityville School

District, Riverhead School District and Central Islip School District (collectively, the "School

District Defendants"). This action was brought by the National Law Center on Homelessness and Poverty and a
proposed class of homeless children and parents of homeless children to enforce, inter alia, the provisions of the McKinney-Vento Act (42 U.S.C. § 11431 et seq.) and New York Education

Law§ 3209. In their Complaint, the Plaintiffs allege that homeless children in Suffolk County face
substantial obstacles to a free public education in violation of the McKim1ey-Vento Act and New York Education Law § 3209. The Plaintiffs allege that there are significant gaps in transportation arrangements, that homeless children are sometimes denied the right to continue to attend their school of origin, that enrollment barriers and paperwork requirements have delayed or denied homeless children access to school, that inadequate or incomplete information is provided to homeless children, and that the various agencies responsible for educating homeless children do not coordinate their activities as required by the statutes.
The School District Defendants deny these allegations and assert that they are complying with the relevant legal requirements concerning the education of homeless children, including the McKinney-Vento Act and New York Education Law§ 3209. Neve1iheless, the Plaintiffs and

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 3 of 38

the School District Defendants (collectively, the "Parties"), agreeing on the importance of

educating homeless children and desiring that this action be settled by appropriate Order and

without the burden of continued protracted litigation, agree to the jurisdiction of this Court over

the Parties and the subject matter of this action, and hereby waive, for purposes of this Order,

hearings and findings of fact and conclusions of law on all issues. The Parties further agree to

the entry of this Order as final and binding among themselves as to the issues raised in the

Complaint or which could have been raised in the Complaint.

This Order, being entered with the consent of the Parties, shall in no way constitute an

adjudication or finding of any wrongdoing or violation of any applicable federal or state law or

regulation, or be construed as an admission of liability or culpability of any Defendant.

In resolution of this action, the parties hereby AGREE, and the Court expressly

APPROVES, ENTERS and ORDERS the following:

I.

DURATION OF' CONSENT ORDER AND GENERAL TERMS

1. This Consent Order is effective upon its entry by the Court and shall remain in

effect for three (3) years from the date of entry.

2. This Court shall retain jurisdiction of this action during the term of this Order for

the purpose of enforcing the Order as may be necessary. Upon substantial compliance with this

Consent Order for three (3) years after entry of the Order by this Court, this matter shall be

dismissed unless the Plaintiffs move, for good cause shown upon notice to the School District

Defendants, for its continuation to carry out the purposes or provisions of this Order.

3. The Parties to this Order shall endeavor in good faith to resolve informally any

disputes or Issues that may arise under or concerning this Order prior to seeking Comi

involvement.

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 4 of 38

,.

4. The time limits set forth throughout this Order may be expanded upon the mutual,

written agreement of counsel for the Plaintiffs and the School District Defendant or Defendants

seeking such expansion of time. 5. The parties acknowledge that this Order does not prohibit future legislative or
regulatory action by the School District Defendants consistent with the provisions of this Order. 6. The individuals executing this Order represent that they are authorized to sign for

and bind the Party or Parties for whom they execute the Order. 7. This Consent Order may be executed in counterparts, and each counterpart, when

executed, shall have the full efficacy of a signed original. Photographic copies of such signed

counterparts may be used in lieu of the originals for any purpose. 8. The Plaintiffs hereby waive any claim as to attorneys' fees or costs up to and
including the date of entry of this Order. Plaintiffs reserve the right to seek attorneys' fees for services performed after the date of the entry of this Order should fmiher litigation be required to enforce the provisions of this Order, and the School District Defendants reserve the right to

oppose any such request.

9. As used, herein, the following definitions shall apply:

a.

Defendants State of New York, The New York State Education Department,

Richard P. Mills (as Commissioner of Education of The New York State

Education Department), Sheila Evans-Tranumn (as Associate Commissioner of

Education of The New York State Education Department) and Patricia McGuirk

(as Program Manager for the Homeless of the New York State Education

Department) will be referred to collectively herein as the "State Defendants."

b. Defendants Suffolk County Department of Social Services and Janet DeMarzo will be referred to collectively herein as the "County Social Services Defendants."

c.

Defendants Longwood Central School District, Hampton Bays School District,

Middle Country School District, Copiague Union Free School District, South

Huntington School District, Patchogue-Medford School District, Bay Shore

Union Free School District, South Country School District, Brentwood School

District, North Babylon School District, Amityville School District and Riverhead

"-..)-

• 'l

Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 5 of 38

School District will be referred to collectively herein as the "School District Defendants."

d.

"Plaintiffs" shall mean Plaintiff National Law Center on Homelessness and

Poverty and named class representatives R.I., A.B., M.W., Da.W, Di.W, Dq.W,

T.H. and S.I., M.K., S.P., K.K., T.K., D.M., M.M., C.T., M.W., R.C. and J.C. In

addition, should the Comi grant Plaintiffs' motion for class certification pursuant

to Fed. R. Civ. P. 23 (b)(2), Plaintiffs shall include all others similarly situated, as

defined in the Complaint.

e.

"Homeless" shall have the same definition as set fmih in 42 U.S.C. § 11434a(2).

f.

"Parent" or "guardian" shall mean any person "in parental relation" to, or a

"custodian" of, any homeless child, as set forth in New York State Education Law

§ 3212.

g.

"State Plan" shall mean the New York State Plan for the Education of Homeless

Children and Youth, and any amendments, modifications or successive plans.

h.

"School-aged" shall mean of sufficient age to be eligible for any free pre-school

or public school education made generally and publicly available to children of

such an age.

1.

"Children" shall mean both children and youths, as the terms are used in the

McKinney-Vento Act and New York Education Law§ 3209.

J.

"Unaccompanied Youth" shall mean youth not in the physical custody of a parent

or guardian, who otherwise meet the definition of "Homeless."

II.

PROVIDING INFORMATION TO HOMELESS CHILDREN AND FAMILIES

10. The Parties agree that providing complete and timely information to homeless

families and Unaccompanied Youth is essential to ensuring that homeless children receive the

educational services to which they are entitled under federal and state law. Accordingly, the

School District Defendants agree that they will take all reasonable measures to timely identify

homeless children entitled to receive services under the McKirmey-Vento Act and/or New York

Education Law § 3209, and to provide accurate and complete information to those children and

their families about their rights and options to enable them to obtain the services they need

and/or desire. Such reasonable measures will include, but are not limited to, the following:

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 6 of 38

•

Homeless Rights Poster and Brochure

11. The School District Defendants agree that they shall prominently display in each

school building office and in each administration building where parents transact business with

the school district such poster or posters in English and Spanish as the State Defendants or their

agents or contractors may have developed or in the future develop advising parents of their

children's rights under the McKi1mey-Vento Act and/or New York Education Law§ 3209. Next

to such poster, the School District Defendants will prominently display the name and number of

the homeless liaison for the district and the telephone number of any hotline for homeless

students or parents maintained by New York State Technical and Education Assistance Center

for Homeless Students ("NYS-TEACHS") (or any other state or local contractor that provides

similar services), the State Defendants or their designees.

12. The homeless liaison of each School Distric1 Defendant shall ensure that the

poster or posters referenced above are prominently and permanently displayed in each location in

each school and administration building where parents enroll or withdraw students, or discuss or

document travel arrangements for students.

13. In addition, the School District Defendants shall agree to distribute, as set forth

below, any informational brochures or materials prepared by the State Defendants concerning the

rights of students or parents under the McKinney-Vento Act and/or New York Education Law

§ 3209. The School District Defendants will request from the State Defendants and maintain a

supply of any such brochures (in English and Spanish and such other languages as the State

Defendants or NYS-TEACHS or a similar state or local contractor provides) at each public

school operated by the School District Defendants sufficient to supply each homeless family. No

later than September 15, 2004, and once each school year thereafter, the School District

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 7 of 38

Defendants will distribute a copy of any such brochure to each identified homeless family and Unaccompanied Youth, and, if available from the State or its contractors, every family with

children enrolled in the district. 14. The Homeless Liaison of each School District Defendant will maintain a list of all
homeless children enrolled within the district and will coordinate efforts to ensure that the family of each such child receives the Brochure at the point at which they are first identified as homeless, and in the native language of the family, where ava:[lable, or in English if not. To the extent feasible, the Homeless Liaison will maintain a record of each family of a homeless child to receive the Brochure and the date on which the Brochure was provided to such family.

III. IDENTIFICATION OF HOMELESS CHILDREN
15. The Par1ies agree and acknowledge that early identification of children who are homeless is essential to avoiding disruptions to the education of such children. Therefore, the School District Defendants agree that they will take all reasonable measures to identify, as soon as possible, all homeless children attending public schools operated by the School District Defendants, and inform them and their families of their rights under the McKinney-Vento Act and New York Education Law § 3209. These reasonable: measures will include, without

limitation, the following:

a. Inquiring of each student/guardian who formally withdraws from a school or who ceases attending a school or who enrolls in a school during the school year whether the change of school is related to homelessness or a loss of permanent housing. (For purposes of clarity, this requirement does not impose investigative duties upon the School District Defendants beyond the duty to make a reasonable inquiry at the time of enrollment or withdrawal whether homelessness or a loss of permanent housing was the cause of the student's change in status.)

b. Informing all school personnel of their obligation to promptly identify any homeless students to the Homeless Liaison of the school district and relevant
school pers01mel or administration.

c.

Keeping a written record of every homeless student who is identified as homeless

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 8 of 38

,

by the name of the student or his or her parent or guardian.

d.

Utilizing and instructing relevant personnel on the use of written school

enrollment and withdrawal forms that indicate, where applicable, that an

enrollment or withdrawal of a student was the result of homelessness.

e.

Engaging in reasonable outreach to homeless families and Unaccompanied Youth,

including without limitation by the mechanisms set forth above.

f.

Identifying personnel at each public school to serve as a contact person and

resource for homeless children and parents.

g.

Providing appropriate training to school staff to enable them to identify and serve

homeless children, including Unaccompanied Youth.

16. The School District Defendants will cooperate with any efforts by the State

Defendants to monitor the School Districts' compliance with the McKi1mey-Vento Act, New

York Education Law § 3209, and/or any Consent orders or other orders or judgments in this

lawsuit.

Responsibility for Identifying and Tracking Homeless Children 17. The Homeless Liaison of each School District Defendant shall visit each school
within the district to ensure that the needs of homeless students and parents within the school are being met by relevant school personnel to the extent possible. The homeless liaison will ensure that each person involved in enrolling, transferring or withdrawing students or arranging for transportation for students is kept current on the requirements of the McKinney-Vento Act, New York Education Law § 3209, and/or any Consent orders or other orders or judgments in this

lawsuit. 18. The Homeless Liaison, in conjunction with administrative stafT at the schools,
shall ensure that sufficient resources are present at each school to reasonably ensure compliance with the McKinney-Vento Act, New York Education Law§ 3209, and/or any Consent orders or

other orders or judgments in this lawsuit.

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19. The Homeless Liaison, in conjunction with administrative staff at the schools, will ensure that homeless children and families are offered the counseling and advice necessary to exercise their rights under the McKinney-Vento Act and New York Education Law§ 3209.
20. Relevant school personnel will be instructed to report any complaints concerning the provJslOn of educational services to homeless children to the Homeless Liaison. The Homeless Liaison will record all such complaints in a single location, organized chronologically. Revision of Existing Enrollment and Withdrawal Forms
21. The School District Defendants shall revise their school enrollment or school withdrawal forms to include a place on such forms to inquire ( 1) whether the enrollment or withdrawal of a student is related to homelessness or a loss of permanent housing, and, if so, the date of last attendance and (2) whether any services (such as transportation) are being requested of the school district. The School District Defendants will provide homeless families assistance in filling out such forms along with a copy of the brochure referenced above.
22. The school personnel shall record responses on the revised school enrollment or school withdrawal forms referenced above and shall forward a copy of any responses that indicate homelessness to the Homeless Liaison of the district. The Homeless Liaison shall review each form and personally sign each such form after review. The Homeless Liaison shall retain all such forms for the school district in a single, central repository organized by student name.
The School District Defendants shall use a single, agreed-upon form for the enrollment or withdrawal of students and shall provide a draft of such form or forms to counsel for the Plaintiffs on or by August 15, 2004, for review and comment. This form shall be available in English and Spanish. If the Parties cannot resolve any differences as to the
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appropriate format of the form or forms, either Party may ask the Court to determine whether the proposed revised school enrollment and school withdrawal forms comply with the requirements of this Order.
24. Upon filling out the newly revised enrollment/withdrawal forms and soliciting a response indicative of homelessness, school personnel (under the supervision/direction of the Homeless Liaison and/or School Designee) shall consulr with the parent, guardian or Unaccompanied Youth concerning choice of school and transportation and shall assist the parent, guardian or Unaccompanied Youth to record his or her choices and requests for services on the enrollment form. The parent, guardian or Unaccompanied Youth shall be given a copy of all completed forms, any brochures or other materials provided by the State Defendants concerning the education of homeless children, and information conceming the right to appeal any decision made by the School District Defendants as to the education of a homeless student. Upon completion of any enrollment, withdrawal or STAC forms, a copy will immediately be provided to the Homeless Liaison of the school district. The Homeless Liaison will ensure that the school pers01mel responsible for providing relevant services will be promptly notified of the services to be provided or arrangements to be made with respect to the homeless child. While services are being arranged for such a child, the child will immediately be enrolled by the school district. The School District Defendants will provide homeless children with access to appropriate services under Title L Part A of the Elementary and Secondary Education Act. as required by law.
~ _~ ), When a homeless child enrolls within a school district, the school district will immediately request school records and other documents needed from the school district the homeless child previously attended. The school district will immediately enroll the child while
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awaiting receipt of relevant records and will promptly provide to the parent ofthe homeless child

consent forms for the release of information from the prior district.

Consultation with Parents/Guardians 26. If a completed form indicates that a student's enrollment or withdrawal is a result

of homelessness, or if a school otherwise identifies a homeless student, school personnel will promptly inform the Homeless Liaison. As for each such student, school persmmel shall

immediately inform the student and his/her parent or guardian both orally and in writing (in clear

and concise terms capable of being easily comprehended, and if possible, in the language of the

parent or guardian) of their rights under the McKi1mey-Vento Act and New York Education Law

§ 3209, including without limitation:

a.

lnfom1ation about choice of schools and how parents or guardians or

Unaccompanied Youth can exercise that choice.

b. The availability of transportation, how to obtain it and from whom to obtain it. If transportation is to be provided by the School District Defendants, school personnel or homeless liaison shall assist in making arrangements for
transportation.

c.

Enrollment issues, including how to enroll, and the right of homeless children to

be enrolled immediately regardless of the availability of the customarily required

paperwork.

d. The availability of fee waivers and other exemptions, if any, which are applicable to homeless families.

e.

A description of the services available to homeless children, from whom such

services are available, and how to obtain access to such services, including

preschool services and extra-curricular activities, and information as to whom the

student/parent should notify if they wish to pmiicipate in these programs

f.

The right to appeal a denial of services or other adverse actions and how m1d

where the right to appeal may be exercised.

g.

Contact information for other resources for homeless families, including without

limitation the Homeless Liaison, NYS-TEACHS, local Department of Social

Services and low cost or free legal services providers' contacts.

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27. The School District Defendant identifying a homeless child shall inform the parent guardian or Unaccompanied Youth that services may be available from SCDSS and other community agencies and of their right to apply for assistance and how to obtain further information.
28. The School District Defendants shall take reasonable steps to protect the confidentiality and privacy of homeless families and shall take reasonable steps to prevent against disclosing to persons outside the school district that a family or child is homeless.
29. The School District Defendants shall honor homeless students' rights under the McKinney-Vento Act, New York Education Law § 3209 and the regulations of the New York State Commissioner of Education (the "Commissioner"), including the rights (1) to attend their school of origin for the duration of homelessness and until the end of any school year in which they find permanent housing; (2) to enroll in school (including attending classes and participating fully in school activities where the School District had reasonable notice and an opportunity to plan for such participation immediately), even if the homeless student lacks any or all documentation typically required of students; (3) to be assisted in obtaining immunization records; (4) to have the enrolling school make prompt efforts to obtain previous school records; and (5) to be enrolled in school programs available to children who are not homeless. IV. TRANSPORTATION OF HOMELESS CHILDREN
30. The Parties acknowledge and agree that transportation poses a particular difficulty for homeless families and Unaccompanied Youth and is essential to ensuring that homeless children receive the educational services to which they are entitled. As a result, the School District Defendants agree that they will make all reasonable efforts to ensure that homeless children who are entitled to receive transportation services from the School District to and from
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school (and/or any preschool, summer school or after or before school activities to which non-

homeless children are provided transportation) each day.

31. The Parties agree that the goal is to provide transportation each day, without gaps

or pauses, such that there is as little disruption as practicable to the homeless child's education.

Policies and procedures that affect the transportation of homeless children or make it likely that a

homeless child might miss school shall be reviewed and revised as necessary. Where it is not

possible for a school district to provide transportation for a homeless child each and every day,

the goal will be to minimize any loss of school to the extent possible and provide transpm1ation

as soon as possible.

32. For those homeless children whom the School District Defendants have the

obligation to transport to school, the School District Defendants will make every reasonable

effort to provide continuous bus transportation without delay upon receipt of information

identifying the location for which transportation is to be provided once a child is identified as

homeless. Notwithstanding the foregoing, the School n1strict Defendants shall provide

transportation within the timeframe as follows for each new homeless child emolling within the

School District:

a.

For students located within the boundaries of the school district and attending the

district's schools, no longer than two (2) consecutive school days, exclusive of the

date the child is identified as homeless;

b.

For students located within the boundaries of the school district and attending an

out-of-district school, no longer than three (3) consecutive school days, exclusive

of the date the child is identified as homeless;

c.

For students who live outside the boundaries of the school district and are

attending the district's schools and/or an out-of-district school, no longer than

three (3) consecutive school days, exclusive of the date the child is identified as

homeless.

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33. The failure of a School District Defendant to provide transportation to a homeless child within the timeframe set forth above will not be deemed a violation of this Order to the extent that the School District Defendant has taken appropriate, reasonable and good faith steps to establish transportation within the timeframe set forth above and that the School District Defendant has made a good faith and reasonable effort, in cooperation with the parent/guardian of the homeless child to the extent possible, to resolve the transportation delay. The Parties agree that if a School District Defendant is repeatedly unable to establish timely transportation for a homeless child, counsel for the parties will confer in an attempt to address the problem, and may submit the matter to the Court if good faith, informal discussions are unable to achieve a resolution.
34. In providing transportation for homeless children, the School District Defendants shall ensure that such transportation arrangements accommodate homeless children's entitlement to participate in any preschool, free meal or similar programs, and after or before school activities and extra-curricular events of which the School District had reasonable notice and an opportunity to plan for participation, where the School District Defendants provide transportation to such events or programs to children who are not homeless.
35. The School District Defendants shall take all necessary and reasonable measures to avoid any disruption in the transportation of homeless children for which the School District is responsible. The School District Defendants shall take reasonable safeguards to avoid disruption of service, including all reasonable efforts to ensure that homeless school children receive transportation on delayed-opening and/or early dismissal school days. (The parties recognize that there may be circumstances in which it is not practical to transport a homeless child to school on a delayed-opening school day, pmiicularly where a child's trip is lengthy and the
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school day is particularly shortened. The School District Defendants will take reasonable steps to ensure that homeless children receive access to transportation services.) The School District Defendants shall also communicate with the homeless child and the homeless child's parent or guardian (and, if appropriate, the family's case worker, shelter personnel or SCDSS personnel) concerning any anticipated transportation problems or difficulties.
36. Any disruptions in the transportation of a child identified as homeless by a school district shall be reported promptly to the Homeless Liaison. lf a homeless child is absent from school for more than three consecutive school days, because of transportation issues caused by the school district, the school personnel will report the absence to the Homeless Liaison, who will inquire into the housing arrangements of the student and confirm the child's temporary address and telephone number where possible. The Home.less Liaison will document such absences and inquiries.
37. If a dispute arises over school selection, school enrollment, records requirements or transportation of a homeless child, or whether a child is homeless, the School District Defendant shall provide the parent or guardian of the child with a written explanation of the school district's decision in the home language of the parent or guardian where possible, including the rights of the parent, guardian or Unaccompanied Youth to appeal the decision. Copies of any such written explanations shall be retained ,by the Homeless Liaison. The explanation should be written in clear and concise terms capable of being easily comprehended. The Homeless Liaison will review each denial of, or substantial change in, transportation for a homeless child to ensure compliance with this Order, and governing law and regulations. The Homeless Liaison will maintain files concerning inquiries, complaints, denials of or changes to transportation in a single location organized by student name.
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38. If a homeless child is absent from or late to school as a result of problems in transportation not the fault of the child or child's family, the School District Defendant shall not treat the absence or lateness as unexcused and the absence shall not under any circumstances be counted towards a denial of credit for the child, but the School District may require the student to make up the missed work to achieve the credit provided that the School District provide reasonable opportunities for the student to do so.
39. If a homeless child is absent from school as a result of a lack of transportation caused by the school district which exceeds three school days, the School District Defendants shall make the necessary arrangements to have school assignments, homework and other necessary material provided to the homeless student. The School District Defendants shall, where it has failed or neglected to provide transpmiation to a homeless child for more than three consecutive school days, also provide appropriate compensatory educational services. For elementary students who miss school, one hour of one-on-one instruction shall be provided to the student for each day missed beginning on the fourth day out of school. For secondary school students, two hours per day of one-on-one instruction shall be provided to the student for each day of school missed beginning on the fourth day out of school. The school district shall take into account that for many homeless students, instruction may not be appropriate at the location where the child is living and that alternate locations should be arranged and that transportation may not be available from the child's parents. The School District will arrange for any compensatory services in a reasonable time and place given the particular circumstances of the homeless child. Education ofHomeless Students With Disabilities
40. Where a homeless child has been determined to have a disability under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487, the School
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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 17 of 38
District Defendant in which the homeless child is enrolled will promptly implement the student's existing individualized education plan (IEP) or a comparable program during the applicable reevaluation period.
41. Until the homeless child's IEP is implemented or reevaluated, the homeless child will immediately be enrolled in the school district and will have the right to receive educational services in a setting most similar to the placement indicated on the child's IEP. If the child is receiving educational services in an out-of-district setting within fifty miles of the child's residence, the school district shall continue the child in that placement unless there is an inschool district program to which the School District and the parent or guardian agrees. The School District Defendants agree to provide transportation as set fmih above. Except as required by law. or agreement by the parent/guardian and the school district, no homeless child with a disability shall be placed on home instruction upon enrollment unless it is determined by the CSE and indicated in the IEP that home instruction is the appropriate educational setting for the child.
42. If such a student has no IEP, or if a homeless student is suspected of having a disability, the School District will promptly evaluate or reevaluate the student in compliance with the IDEA and all applicable federal and state laws and regulations. The School District Defendants will make reasonable efforts to utilize recent evaluations from previous school settings in developing an initial IEP, where permitted by law and regulation. While any such evaluation is taking place, the homeless child will be educated .tn accordance with the preceding paragraph.
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V.

COORDINATION AMONG DEFENDANTS

43. The Parties agree and acknowledge that coordination among the State, County

and local authorities responsible for providing educational services to homeless children is

essential to ensuring that homeless children enroii in and stay in school. The School District

Defendants therefore agree that they wi11 coordinate, communicate and collaborate on a regular

basis as to each homeless child within their care to ensure that all such children have access to ail

of the educational services to which they are entitled under the relevant laws and regulations.

44. The Homeless Liaison from each of the School District Defendants will initiate

contact telephonica11y or in person with the Commissioner of SCDSS or his or her designee at

least twice each school year (once per semester) to discuss any problems or issues concerning the

education of homeless children if such problems or issues exist, including, for example,

transportation, maintaining students in their school of origin, and provision of information to

homeless families. The Homeless Liaison wi11 record the time and date of each such conference

and any problems or issues identified, and will retain the record of each such conference with the

other documents the Homeless Liaison is required to maintain under this Order.

45. The Homeless Liaison from each of the School District Defendants will

coordinate with personnel from the State Defendants to the extent necessary and possible to

ensure compliance with the McKinney-Vento Act, New York Education Law § 3209 and any

Consent orders or other orders or judgments in this lawsuit.

VI. APPEALS AND DISPUTE RESOLUTION

46. The Parties recognize and agree that any and all disputes concerning or relating to

the education of homeless children must be resolved as expeditiously as possible. The Parties further recognize and agree that identified homeless children and Unaccompanied Youth are

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entitled, until the final resolution of any dispute or appeal concerning the enrollment of homeless children to immediate and continuing admission and enrollment in the school district in which enrollment is sought pursuant to the McKinney-Vento Act and New York Education Law ~ 3209. The Homeless Liaison of the school district will provide such assistance to the homeless child and his or her parent or guardian as is reasonable. The School District Defendants will comply with their obligations under the McKinney-Vento Act, New York Education Law § 3209 and the IDEA as to homeless children disputing enrollment or transportation issues with the school district. The District shall act in good faith in making such identification of homelessness as set forth in McKinney-Vento, New York Education Law § 3209 and the regulations of the Commissioner. The parties agree that following any order or judgment in this lawsuit that affects the appeals or review process applicable to homeless children in New York State, counsel for the parties will promptly confer to ensure that this Consent Order conforms to such appeals or review process and the parties will promptly seek such modifications to this paragraph as may be become appropriate or necessary in light of the orders or judgments of the Court.
47. If the parent or guardian of a homeless child or Unaccompanied Youth disputes a decision about enrollment, transportation or other matters pertaining to the educational placement of the homeless child (including a school district's decision that a child is not homeless), the School District Defendants will expeditiously and fully inform such parent or guardian or Unaccompanied Youth of their rights under the McKinney-Vento Act, New York Education Law ~ 3209, the regulations of the Commissioner, New York Education Law § 310 and the regulations of the Commissioner for filing an appeal and this Consent Order in the language of the parent or guardian, if possible.
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48. If a school district denies enrollment to a child who is asserted to be homeless the '
School District Defendants will provide to the parent, guardian or Unaccompanied Youth a written explanation of the district's decision denying enrollment and shall, with such written explanation, provide an informational packet to the parent, guardian or Unaccompanied Youth setting forth the rights of homeless families to appeal the decision of the school district along with pertinent contact information for assistance. Counsel for the Plaintiffs and School District Defendants will work together in good faith to compile the informational packet to be provided to homeless families upon the denial of enrollment.
49. The School District Defendants will expeditiously follow all procedures for appeal set forth by the New York State Education Department and any procedures set forth in any Consent Orders or orders or judgments of the Court in this lawsuit.
50. In any dispute or issue that arises during the term of and under this Consent Decree. counsel for the parties will promptly confer in good faith in an effort to resolve any differences. The parties agree that they will cooperate, to the fullest extent possible, to ensure that homeless children are receiving the educational benefits to which they are entitled under law.
VII. TRAINING OF SCHOOL PERSONNEL
51. The Parties agree that providing appropriate serv1ces to homeless children requires that relevant personnel at the schools (including the Homeless Liaison, administrators and others who deal with homeless children) understand the rights and needs of homeless children and have sufficient knowledge of homeless children's rights and needs to be able to help them. Accordingly, the School District Defendants agree that they, in coordination and conjunction with NYS-TEACHS (or other agency contracted by state defendants to provide
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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 21 of 38
training) and the State Defendants, will provide and/or require appropriate and reasonable training to all relevant personnel who are likely to have contact with homeless children or their families concerning homeless children's education, or who are responsible for providing educational or related services to homeless children or families.
52. The School District Defendants shall educate all relevant personnel at the School District Defendants concerning the following: (i) the causes and effects of homelessness; (ii) the educational and ~other needs of homeless children; (iii) the rights of homeless children and obligations of the school districts under the McKi1mey-Vento Act, New York Education Law § 3209 and any regulations thereunder; (iv) proper use of the various forms for identifying and providing services to homeless children; (v) the nature and scope of services available for homeless children, both within the school district and without; (vi) the identification of homeless children; (vii) the importance of a mechanism for coordinating with SCDSS concerning the needs of homeless children; (viii) the pariicular educational, social and emotional difficulties and challenges faced by homeless children; (ix) the definition ofhomelessness; and (x) the particular needs of Unaccompanied Youth. Plaintiffs will make available materials suitable for such training to the School District Defendants which the School District Defendants will distribute to relevant personnel.
53. The School District Defendants will assess what training or in-service education is appropriate for relevant personnel as to the topics listed above and will encourage all relevant personnel, including personnel who are likely to have contact with homeless children or their families concerning homeless children's education, or who are responsible for providing educational or related services to homeless children or families, to receiving appropriate training and in-service education. The School District Defendants wil.l make available such in-district
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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 22 of 38
training and training resources as they deem necessary to keep relevant personnel informed and current about the above-listed topics.
54. For any in-disti·ict training sessions conducted by a School District Defendant, each person attending training shall sign an attendance sheet, which sheets will be forwarded to and maintained by the Homeless Liaison. The Homeless Liaison for each School District Defendant shall maintain a complete and accurate record of the names of the persons who receive such training, the dates of the training, and copies of any materials used or distributed at the training. VIII. EVALUATION AND ASSESSMENT
55. The School District Defendants will cooperate with the State Defendants in any program evaluation, assessments or evaluations of the effectiveness of the programs run by the School District Defendants to provide educational services for homeless children.
56. Once each year, the Homeless Liaison of each School District Defendant will review the effectiveness of the programs run by the relevant School District Defendant to provide educational services for homeless children. Such review will include an assessment of the number of homeless children in the district, the time it takes to arrange for transportation provided by the School District for homeless children in the district and any issues concerning absences or special education placement of homeless children. The Homeless Liaison will report the results of such review, and identify any problems, gaps or issues in writing to the Superintendent of the school district.
57. The Parties agree to work together cooperatively to provide Plaintiffs' counsel during the term of this Consent Order with such information as may be reasonably necessary to assess and evaluate the School District Defendants' performance of the various obligations under
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this Order. Plaintiffs' counsel may, on five days' notice, review, inspect and/or copy any

documents maintained or created (or required to be maintained or created) by any of the School

District Defendants pursuant to this Order, to the extent permitted under relevant laws and

regulations. The Parties will work together in good faith with respect to other documents that

may be required by the Plaintiffs' counsel, and the School District Defendants will make a good

faith effort to provide reasonably requested information, to the extent permitted under relevant

laws and regulations.

58. Information made available to the Plaintiffs' counsel under this Order will also be

made available to counsel for any of the Parties upon request.

IX. MONITORING COMPLIANCE

59. At least twice each year during the term of this Consent Order, each of the School

District Defendants will produce to Plaintiffs' counsel a "Compliance Report," which shall

contain at least the following information: (i) statistics on th::: number of identified homeless

children serviced by the Defendant; (ii) statistics on the number of complaints and appeals

concerning homeless children; (iii) statistics on the number of homeless children remaining in

their schools of origin; (iv) information concerning any delays in enrollment of homeless

children: and (v) information concerning any delays or gaps in transportation of homeless

children by the school district to and from school.

X.

REVISION OF POLICIES

60. The School District Defendants will review and revise any policies, procedures or

guidelines that present barriers to the enrollment and retention of homeless children in school or

are or that are inconsistent with the terms of this Consent Order.

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 24 of 38

~ Dated:

f'J ,2004

We hereby consent to the foregoing:

On behalf of the Plaintifls:

. efirey Alan Simes (JS-7080) Christopher Garvey (CG-3323) Goodwin Procter LLP 599 Lexington Avenue New York, New York 10022 Tel: (212) 813-8800 Fax: (212) 355-3333
Of counsel:
Maria Foscarinis (MF-3647) National Law Center on Homelessness
and Poverty 1411 K Street, N.W., Suite 1400 Washington, D.C. 20005 Tel: (202) 638-2535 Fax: (202) 628-2737

Deborah Berger (DB-1111) Long Island Advocacy Center, Inc. 490 Wheeler Road. Suite 165 C Hauppauge, New York 11788 Tel: (631) 234-0467 Fax: (631) 234-4069
Lewis M. Wasserman (LW-7134) Wasserman Steen LLP 50 Medford Avenue Patchogue, New York 11772 Tel: (631) 758-3367 Fax: (631) 758-3369

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,. JUN-28-2004 C1a1s:4e5 2:04FR-OcMv-I-N0GE0R7MA0N5S-MAITDH S-ARL Document 136331-26F1i-l0e52d3 10/07/04T-7P18ageP.D2258~o29f 38F-67~
~004
We hereby consent to the foregoing: AMITYVILLE SCHOOL DISTRICT

/0 ~-~~ o/t~· BY: A.fl.<-L-,._,.._ President, Board of

~0Jt1- 5-

tf

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t' t ••

Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 26 of 38

Dated: June_, 2004 We hereby consent to the foregoing: BAY SHORE UNION FREE SCHOOL DISTRICT

BY:

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JUN~ZB-2004 C12a:0s8e 2:04FR-OcMv-I-N0GE0R7MA0N5S-MAITDHS-ARL

Document

133631-2F61il-e05d2310/07/04

Page T-721

P2.0728o/0f238 8

F-681

Dated: June__, 2004 We hereby consent to the foregoing: BRENTWOOD SCHOOL DISTRICT
BY:
President, Board ofEducation

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 28 of 38 Dated: June '2004 We hereby consent to the foregoing:
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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 29 of 38

I

'

'

July 12, 2004 Dated: June _ , 2004 We hereby consent to the foregoing: COPIAGUE UNION FREE SCHOOL DISTRICT

BY:

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.·

Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 30 of 38

~ Dated:

3 , 2004

We hereby consent to the foregoing:

HAMPTON BAYS SCHOOL DISTRICT
BY: ~~ucation

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 31 of 38

{3ft Dated:

Ja_, 2004

We hereby consent to the foregoing:

LONGWOOD CENTRAL SCHOOL DISTRICT

BY:

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 32 of 38 ''

Dated: June_, 2004 We hereby consent to the foregoing: MIDDLE COUNTRY SCHOOL DISTRICT

BY:

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 33 of 38 Dated: June_, 2004 We hereby consent to the foregoing: NORTH BABYLON SCHOOL DISTRICT BY:
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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 34 of 38 Dated: June_, 2004 We hereby consent to the foregoing: PATCHOGUE-MEDFORD SCHOOL DISTRICT BY:
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• • '"t

Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 35 of 38

Dated: June _ , 2004 We hereby consent to the foregoing: RIVERHEAD SCHOOL DISTRICT

BY:

I

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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 36 of 38
•,
Dated: June_, 2004 We hereby consent to the foregoing: SOUTH COUNTRY SCHOOL DISTRICT BY:
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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 37 of 38 Dated: June_, 2004 We hereby consent to the foregoing: SOUTH HUNTINGTON SCHOOL DISTRICT BY:
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Case 2:04-cv-00705-ADS-ARL Document 133 Filed 10/07/04 Page 38 of 38
11'
So ORDERED this _1_ day of () c-r ,2004
vvv. .
Hon. Arthur D. Spatt, United sttes District Judge
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 Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 1 of 33

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

NATIONAL LAW CENTER ON HOMELESSNESS AND

POVERTY, R.I., individually, and as parent and natural

guardian of A.B., a minor child, M.W., individually, and as parent and natural guardian ofDa.W., Di.W., Dq.W., T.H. and S.J., minor children, M.K., individually, and as parent and

Civil Action No. 04 0705 (ADS/ARL)

natural guardian ofS.P., a minor child, T.K. and N.K.,

individually, and as parents and natural guardians ofK.K.,

D.M., individually and as parent and natural guardian ofM.M.,

C.T., individually and as grand parent and guardian ofM.W.,

and R.C., individually, and as parent and natural guardian of

J.C., on behalf of themselves and all those similarly situated, SETTLEMENT AGREEMENT AND

Plaintiffs,

CONSENT ORDER

BETWEEN PLAINTIFFS

v.

AND STATE DEFENDANTS

STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT, RICHARD P. MILLS (as Commissioner of Education of the State ofNew York); SHEILA EVANS-TRANUMN (as Associate Commissioner of Education of the State ofNew York); PATRICIA MCGUIRK (as Program Manager for the Homeless of the New York State Education Department); NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, ROBERT DOAR (as Acting Commissioner of the New York State Office
of Temporary and Disability Assistance), SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, JANET
DEMARZO (As Commissioner Of The Suffolk County Department Of Social Services), DAN HICKEY (As Associate Commissioner Of The Suffolk County Department Of Social Services), and JOHN DOE SCHOOL DISTRICTS 1-10,

Defendants.

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 2 of 33
BACKGROUND This action was brought by the National Law Center on Homelessness and Poverty and a proposed class of homeless children and parents of homeless children to enforce, inter ali<!, the provisions of the McKinney-Vento Act (42 U.S.C. § 11431 et seq.) and New York Education Law§ 3209. WHEREAS in their Complaint, the Plaintiffs allege that homeless children in Suffolk County face substantial obstacles to a free, appropriate public school education in violation of the McKinney-Vento Act and New York Education Law§ 3209; WHEREAS Defendants State of New York, The New York State Education Department, Richard P. Mills (as Commissioner of Education of The New York State Education Department), Sheila Evans-Tranumn (as Associate Commissioner of Education of The New York State Education Department), Patricia McGuirk (as Homeless Education Program Manager for the New York State Education Department), the New York State Office of Temporary and Disability Assistance ("OTDA"), and Robert Doar (as Commissioner of OTDA) (collectively, the "State Defendants"), deny liability but agree on the requirement of educating homeless children and desire that this action be settled by this Consent Order and without the burden of continued protracted litigation; WHEREAS the parties agree that it is important for the State to play a prominent role in the enforcement of the McKinney-Vento Act, New York Education Law§ 3209 and related laws and regulations concerning the education of homeless children; WHEREAS the parties agree and acknowledge that collection of detailed information concerning the education of homeless children is an integral part of ensuring that homeless children receive equal access to public schooling;

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WHEREAS the parties agree that monitoring the activities of school districts vis-a-vis homeless children is an important component to promoting the goal of equal access to a free, appropriate public education for homeless children;
WHEREAS the parties agree that providing appropriate services to homeless children requires that relevant personnel and those involved in enrolling and transporting homeless children understand the rights and needs of homeless children and have sufficient knowledge of homeless children's rights and needs to be able to help them;
WHEREAS the parties agree that providing complete and timely information to homeless families is essential to ensuring that homeless children and unaccompanied youth receive the educational services to which they are entitled under federal and state law;
WHEREAS the parties agree that coordination and collaboration among the various governmental entities that deal with homeless children and their education is essential to ensuring that homeless children receive the educational opportunities to which they are entitled;
WHEREAS the parties agree to the jurisdiction of this Court over the parties and the subject matter of this action, and hereby waive, for purposes of this Order, hearings and findings of fact and conclusions of law on all issues;
IN WITNESS WHEREOF, and in resolution of this action, the parties hereby AGREE, and the Court expressly APPROVES, ENTERS and ORDERS the following consent order as final and binding among the parties as to the issues raised in the Amended Complaint or which could have been raised in the Amended Complaint:
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I.

DURATION OF CONSENT ORDER AND GENERAL TERMS

1. This Consent Order is effective upon its entry by the Court and shall remain in

effect through and including October 1, 2008.

2. This Court shall retain jurisdiction of this action and jurisdiction over the parties

during the term of this Order for the purpose of enforcing the Order as may be necessary. The

Order shall expire and this matter shall be dismissed with prejudice effective October 1, 2008,

unless the Plaintiffs move, prior to its expiration, to extend the Order for good cause shown upon

notice to the State Defendants, and this Court grants such motion or otherwise grants a temporary

extension of the Order pending determination of the motion:

3. During the term of this Order the parties to this Order shall endeavor in good faith

to resolve informally any disputes or issues that may arise under or concerning this Order before

referring such disputes to the Court.

4. The time limits set forth throughout this Order may be expanded upon the mutual,

written agreement of the Plaintiffs and the State Defendants.

5. Within one hundred twenty (120) days of approval by the Court of this Order, the

State Defendants shall pay to Plaintiffs' counsel attorneys' fees and costs in the sum of

$378,291.33. This payment shall reflect a full and final payment for Plaintiffs' attorneys fees

and costs as to the State Defendants that are claimed as a result of this litigation up to and including execution of this Order and any activities or reviews provided for in this Order, subject

to the right to seek counsel fees or other costs as set forth in Paragraph 84 of this Consent Order.

If payment is not made by the one hundred twentieth day after such approval by the court of this

order, interest on any of the sums not paid by the ninetieth day shall begin to run at the statutory

rate pursuant to 28 U.S.C. § 1961.

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6. As used, herein, the following definitions shall apply:

a. Defendants State of New York, The New York State Education Department, Richard P. Mills (as Commissioner of Education of The New York State
Education Department), Sheila Evans-Tranumn (as Associate Commissioner of Education of The New York State Education Department) and Patricia McGuirk (as Homeless Education Program Manager for the New York State Education Department) will be referred to collectively herein as the "NYSED Defendants."

b. Defendants New York State Office of Temporary and Disability Assistance, and Robert Doar will be referred to as the "OTDA Defendants."

c. Together, the NYSED Defendants and the OTDA Defendants will be referred to as the "State Defendants."

d. Defendants Suffolk County Department of Social Services ("SCDSS"), Janet DeMarzo and Dan Hickey will be referred to collectively herein as the "SCDSS Defendants."

e. Defendants Longwood Central School District, Hampton Bays School District, Middle Country School District, Copiague Union Free School District, South Huntington School District, Patchogue-Medford School District, William Floyd
School District, Central Islip School District, Bay Shore Union Free School
District, South Country School District, Brentwood School District, North Babylon School District, Amityville School District and Riverhead School
District will be referred to collectively herein as the "School District Defendants."

f. "Plaintiffs" shall mean Plaintiff National Law Center on Homelessness and Poverty, named class representatives R.I., A.B., M.W., Da.W, Di.W, Dq.W, T.H. and S.I., M.K., S.P., K.K. and T.K., and all members of the Plaintiff classes
certified by the Court in this matter.

g. "Homeless Child" shall have the same defmition as set forth in 42 U.S.C. § 11434a(2).

h. "Parent" or "guardian" shall mean any person "in parental relation" to, or a "custodian" of, any homeless child, as set forth in New York State Education Law
§ 3212.

i.

"State Plan" shall mean the New York State Plan for the Education of Homeless

Children and Youth, and any amendments, modifications or successive plans.

j. "School-aged" shall mean of sufficient age to be eligible for any free pre-school or public school education made generally and publicly available to children of
such an age.

k. "Children" shall mean both children and youths, as the terms are used in the McKinney-Vento Act and New York Education Law§ 3209.

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I.

"Unaccompanied Youth" shall have the same definition as ser forth in 42 U.S.C.

§ 11434a(6).

m. "School Transportation" shall mean transportation to and from the school district designated by the parent, guardian or unaccompanied youth, transportation to the program set forth in a homeless child's individualized education plan, including pre-school students with disabilities, and transportation to any activities, including but not limited to extracurricular activities, pre-K programs, head start programs, summer school and any other program for which non-homeless children are provided transportation by the school district in which they are emolled.

II, OBLIGATIONS OF THE OTDA DEFENDANTS Administrative Guidance to SCDSS and Other Local Social Services Agencies
7. The OTDA Defendants shall issue and/or revise administrative directives and guidance concerning the local social services districts' responsibilities pursuant to New York State Education Law § 3209 and the provision of transportation special needs allowances pursuant to New York Social Services Law § 350-j for homeless children to and from school as

follows:

a. OTDA shall issue and/or revise its administrative directives and/or guidance so as to establish a statewide requirement that school transportation for a homeless child placed in housing by local social services agencies such as SCDSS is to be arranged within three (3) business days of such homeless child's initial placement in shelters or other temporary housing arranged by the local social service district.
b. OTDA shall issue and/or revise its administrative directives and/or guidance so as to establish a statewide standard assuring that when child safety requires a parent to accompany such child(ren) to and from school, such accompaniment will not be grounds for sanction for failure to meet any OTDA, local social services district, or local services district rule, regulation, or directive during the period the parent accompanies the child.
c. OTDA shall issue and/or revise its administrative directives and/or guidance so as to establish a statewide standard to ensure that if and when a local social service district requires a parent or guardian of a homeless child or children to accompany such child(ren) to or from school, the parent or guardian will not be sanctioned or penalized in any way for any failure to meet any OTDA or local social services district rules that result from accompanying the child(ren) to or from school. Social services

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transportation, by, among other things, requiring SCDSS to provide OTDA with bi-monthly

reporting of information to permitassessment of school transportation of such children over their

entire period of homelessness.

I 0.

To the extent that SCDSS is not presently recording or reporting the information

or documentation required in the preceding paragraphs, OTDA shall direct SCDSS to submit to

OTDA the necessary information and documentation. OTDA shall determine the appropriate

response to be taken under the circumstances, including but not limited to consideration of the

following:

a. Seeking corrective action from SCDSS; b. Sending a letter or warning to SCDSS; c. Communicating with SCDSS concerning any transportation issues; d. Requesting further information from SCDSS or other parties; e. Referring the matter to the Deputy Commissioner for appropriate action,
which may include, as permitted by law, the withholding of funds. II. OTDA shall review and assess the information reported by SCDSS on a regular

basis to determine whether SCDSS is complying with the McKinney-Vento Act and New York

Education Law § 3209 as these statutes relate to the educational transportation of homeless

children.

12. The OTDA Defendants shall perform audits of SCDSS procedures and programs

in accordance with the following schedule:

a. immediately upon execution of this Consent Order; b. again within six (6) months after execution of this Consent Order; c. again within eighteen (18) months after execution of this Consent Order;
and d. again within thirty (30) months after execution of this Consent Order.

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13. These audits of procedures and programs will utilize the data gathered and will assess the effectiveness and timeliness of SCDSS's school transportation processes, programs and procedures as well as the accuracy and completeness of the data reported by SCDSS to OTDA concerning school transportation for homeless children. The audits of procedures and programs will seek to identify any weaknesses, problems or instances of non-compliance and will make such recommendations to SCDSS for improvements to its school transportation processes, programs and procedures as OTDA deems appropriate or necessary. The results of such audits of procedures and programs and the methods employed are to be discussed and shared with Plaintiffs' counsel. Enforcement Procedures
14. Upon detecting any material problems or weaknesses in SCDSS's provision of school transportation to homeless children, OTDA shall require SCDSS promptly to develop a written Corrective Action Plan to address and correct the problems or weaknesses. The OTDA Defendants shall monitor SCDSS's progress under the Corrective Action Plan and shall take such actions consistent with New York State Social .Services Law as may be reasonably necessary to ensure that prompt and appropriate action is taken to improve school transportation for homeless children placed in housing by the local social services district.
15. The OTDA Defendants shall maintain a record of any Corrective Action Plans submitted or required to be submitted to OTDA by SCDSS and, in the regular reporting to the Court and Plaintiffs' counsel required under the Consent Order, shall provide information concerning the number, nature and resolution of such Corrective Action Plans.
16. The OTDA Defendants shall designate an appropriate senior staff member (initially to be Director, Bureau of Shelter Services Jeff Barnes) who, with the assistance of
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others at OTDA, will serve as OTDA's "Compliance Officer" for purposes of this Consent Order and will assume a primary role in monitoring and ensuring the compliance of SCDSS and establishing any necessary corrective action. The Compliance Officer will be primarily responsible for coordinating OTDA's activities and reporting under this Consent Order. Reporting
17. Th_e OTDA Defendants shall submit a written Compliance Report to the Court and to Plaintiffs' counsel twice in the first year after entry of this Consent Order, and once annually thereafter. The Compliance Report shall detail OTDA's activities in connection with this Consent Order and such other activities OTDA may have taken to monitor SCDSS's transportation of homeless children to school and any enforcement action or actions taken. The Compliance Report shall also provide summaries of the information SCDSS reports to OTDA concerning the effectiveness and timeliness of school transportation SCDSS provides to homeless children. The Compliance Report, while providing summary information, should be reasonably complete so as to provide the Court and Plaintiffs' counsel with an accurate understanding of both OTDA's activities under this Consent Order and the current state of school transportation of homeless students as provided by SCDSS.
18. In addition to the foregoing reporting, representatives from the OTDA Defendants shall communicate with Plaintiffs' counsel as appropriate to discuss any issues or trends relative to this Consent Order in the school transportation of homeless students which emerge over time. Training and Other Provisions
19. The OTDA Defendants shall provide or arrange for the provision of refresher training and ongoing training to SCDSS staff and other relevant personnel (such as shelter staff and/or staff of other contracting agencies involved in school transportation or other services to
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homeless children and families) concerning transportation of homeless children. Such trainings shall occur no less than once each year.
20. This training will cover, as appropriate, (i) the rights of homeless children and families under the McKinney-Vente Act, New York Education Law § 3209 and related regulations; (ii) the obligations of the various SCDSS Defendants as to the educational transportation of homeless children; (iii) this Consent Order; (iv) the reporting and monitoring activities set forth in this Consent Order; (v) coordination among SCDSS, OTDA and other agencies with respect to school transportation for homeless children; (vi) the proper use of forms and provision of information regarding the educational transportation of homeless children and (vii) materials produced by NYSED or its contractors explaining the needs of homeless children (including the barriers they face and the importance of school stability to their educational and social growth).
21. After the initial training set forth above, OTDA may provide training materials to be incorporated into SCDSS's ongoing training programs. This training will be coordinated with NYSED or school district training as appropriate.
22. OTDA, in consultation with the Plaintiffs, shall review the training programs and materials it provides to SCDSS as appropriate and shall promptly supplement and/or amend such training and/or training materials following any changes or amendments to pertinent laws, regulations, administrative directives or other requirements concerning the manner in which SCDSS must transport homeless children to and from school.
23. During the regular reporting to the Court and Plaintiffs' counsel discussed above, OTDA shall provide summary information concerning dates and number of trainings, including
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the number of training sessions, the approximate number of attendees and any changes to training or training materials.
24. The OTDA Defendants shall consult with the Plaintiffs in good faith concerning training and training materials.

Ill. 0BLIGATIONS OF THE NYSED DEFENDANTS Changes to the Appeals Process
25. The parties agree that a timely and efficient appeals process is important in permitting a homeless child's or youth's parent or guardian or unaccompanied youth to exercise his/her right to a free, appropriate public education. Accordingly, NYSED has revised its appeals process pursuant to New York Education Law § 310 (the "§ 310 appeal" or "appeal") for appeals regarding a homeless child's or youth's access fo a free, appropriate public education as

follows:

a. NYSED has (after an opportunity for consultation with Plaintiffs' counsel) created a form petition to be used to commence appeals regarding a homeless child's or youth's access to a free, appropriate public education. Amendments to Parts 275 and 276 and section 100.2(x) of the Regulations of the Commissioner of Education, relating to appeals regarding homeless children and youth were permanently adopted at the June 2005 Regents meeting, effective date July 14, 2005. The form petition is drafted in such a manner as to be easy to complete, but asks for enough information about the parent's or guardian's or unaccompanied youth's complaint as to enable NYSED to consider the appeal fully. The form petition is short and easily understandable by persons with no more than a sixth grade education. Where additional facts and/or details are required, the form petition includes blank lines to help prompt the petitioner to add the pertinent information.
b. No filing fees shall be required for appeals brought before the Commissioner of Education regarding a homeless child's or youth's access to a free, appropriate public education pursuant to 8 N.Y.C.R.R. § 100.2(x).
c. The homeless petitioner's petition must be legible, but need not be . typewritten or notarized. The homeless petitioner shall sign a statement

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which indicates that based on his/her information and belief, the information contained in the petition is true, and an acknowledgement that he/she is aware that under New York Penal Law § 175.30, a person who knowingly offers a false instrument for filing with a public official or public servant is guilty of Offering a False Instrument for Filing in the 2"d Degree, a Class A Misdemeanor.
d. The NYSED Defendants shall require local educational agency liaisons for homeless children and youths ("homeless liaisons") to assist homeless families in filling out the form petition. Upon completion of the petition, the homeless liaisons shall provide homeless families with copies of the petition and any supporting documents, without cost to the homeless families. The NYSED Defendants shall require the homeless liaisons to either accept service of the petition and any supporting papers on behalf of any school district employee or officer named as a party or the school district if it is named as a party or effect service by mail by mailing the petition and any supporting documents to any school district employee or
· officer named as a party and, if the school district is named as a party, to a person in the office of superintendent who has been designated by the board of education to accept service on behalf of the school district. The homeless liaisons shall be required to provide the parent or guardian of a homeless child or youth or unaccompanied youth with a signed and dated acknowledgement verifying that they have received the petition and any supporting documents and either accepted service of these documents on behalf of the school district employee or school district officer or school district or effected service by mail by mailing the form petition and supporting documents to any school district employee or school district officer named as a party and, if the school district is named as a party, to a person in the office of superintendent who has been designated by the board of education to accept service on behalf of the school district. The NYSED Defendants shall direct school districts to maintain sufficient supplies of the petition and make the petition readily available to homeless families.
e. The NYSED Defendants shall require the school district homeless liaisons to transmit on behalf of the parent or guardian of the homeless child or youth or the unaccompanied youth the completed petition and any supporting documents to NYSED. The homeless liaisons shall be required to provide the parent or guardian of the homeless child or youth or the unaccompanied youth with a signed and dated acknowledgement verifying that the homeless liaisons have received the petition and any supporting documents and will transmit these documents to NYSED on behalf of the parent or guardian of the homeless child or youth or the unaccompanied youth. Homeless families will not be required to arrange for the filing of the petition or any supporting documents with NYSED.
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f.

Unless the homeless family or unaccompanied youth specifically requests

otherwise, the completed petition will be treated automatically as a request

for temporary stay, entitling the homeless student to the requested

enrollment and/or transportation pending resolution of the stay request.

The NYSED Defendants shall issue a ruling on the request for stay, if so

required, in due course.

g. If a school district makes a final determination not to enroll or transport a homeless child or youth or unaccompanied youth as requested by the parent or guardian or the unaccompanied youth, the school district shall
delay for thirty (30) days the implementation of that decision to give the homeless family or unaccompanied youth time in which to commence an appeal to the Commissioner. If the parent or guardian of a homeless child or youth or an unaccompanied youth commences a § 31 0 appeal regarding the homeless child's or youth's of unaccompanied youth's access to a free, appropriate public education within thirty (30) days of such final determination, the homeless child or youth or unaccompanied youth will be able to attend the school in which enrollment is sought and/or obtain the requested transportation until the Commissioner of Education renders
a decision on the stay application.

h. Preschool children and children who are rece1vmg special education services who submit a § 310 appeal in connection with a denial of transportation to or from school shall be entitled to interim transportation
pending the appeal processes noted above.

1.

Disputes concerning whether a child is, in fact, homeless, shall be handled

in the manner described in this section.

j.

The revised petition forms described above shall be maintained in

sufficient quantities in each school.

26. The NYSED Defendants shall require school districts to maintain a written log of

all appeals submitted by the parents or guardians of a homeless child or youth or unaccompanied

youth. 27. Once each six months in the first year after entry of this Consent Order, and once
annually thereafter, the NYSED Defendants shall review all § 310 appeals submitted by homeless families and shall summarize for the Court and Plaintiffs' counsel the number of cases,

types of disputes and resolutions.

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28. The NYSED Defendants shall revise, amend or enact appropriate regulations and directives to effectuate the changes to the appeals process set forth above. Data Collection and Analysis
29. The NYSED Defendants shall implement data collection and analysis initiatives, including a data collection system called "Liaisons On-line Unified Information System for Evaluation" ("LOUISE"), which is currently under evaluation by NYSED, as set forth below.
30. The NYSED Defendants shall review the performance of the LOUISE system in the test districts in which it is currently being implemented and, based on its performance as a data collection tool, shall roll out the LOUISE data collection tool as quickly as possible among the fourteen School District Defendants, other high need districts and districts with fifty (50) or more homeless families.
31. Data collection under the LOUISE system shall be reviewed and implemented with the intent of including to the extent possible pertinent information concerning homeless families, and not merely information concerning school districts' specific McKinney-Vento subgrant activities. The LOUISE system shall be configured as technologically possible to collect a broad range of pertinent information concerning homeless education, including the number and ages of homeless children within a district, the percentage of homeless children remaining in schools of origin, the length of any enrollment delays, the average wait for transportation services, and the types of services provided to those children as well as attendance and performance information where possible. The system shall be implemented in such as manner as to ensure the greatest accuracy and uniformity of data possible.
32. Appropriate trainings shall be made available to homeless liaisons in districts reporting data to LOUISE in the proper use of LOUISE and techniques to collect complete,
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accurate and uniform data about homeless families, children, youths and unaccompanied youths

in the school districts.

33. The NYSED Defendants shall conduct a periodic review of the LOUISE system

to determine its efficacy and utility, as it is rolled out to the districts specified in paragraph 30 of

this Order.

34.

In addition to LOUISE, NYSED shall employ other data collection methods to

obtain data regarding issues involving the education of homeless students within Suffolk County

and elsewhere in New York State, for analysis consistent with the paragraphs set forth below.

These data collection methods shall include self-monitoring forms, which NYSED has designed

(with input and comments from Plaintiffs' counsel) and which shall be disseminated to the school

districts for completion. In addition, NYSED shall collect data concerning homeless families

through the Basic Educational Data System ("BEDS") currently in use for all school districts.

35. The NYSED Defendants shall develop criteria for data analysis of the information

obtained through LOUISE, BEDS and the self-monitoring forms and shall provide the same to

Plaintiffs' counsel for comment and suggestions as soon as possible. The purpose of such

analysis will be to provide the parties with a more accurate picture of the status of homeless

education in Suffolk County and New York State, and to identify problems or instances of school

districts' non-compliance with the Jaws and regulations pertaining to homeless education.

36. To the extent the information set forth below in this paragraph is not accurately

captured by LOUISE, BEDS, the self-monitoring forms or other means, NYSED shall develop

criteria and/or protocols for a sample survey (which may be conducted concurrently with on-site

reviews discussed below). The sample survey shall be conducted with respect to a number of

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school districts sufficient to constitute a statistically significant sample of districts within the State of New York. The sample survey will seek to assess, among other things:
a. The number of homeless children enrolled by grade, etc.; b. Attendance information, including any delays or gaps in attendance due to
incomplete implementation of the McKinney-Vento Act or NY State law; c. Performance information; d. Transportation information; and e. Other information concerning education of homeless children. 37. Plaintiffs' counsel shall be given an opportunity to offer comments and suggestions to NYSED concerning the sample survey, its criteria and/or protocols. 38. The parties shall confer at least twice a year during the term of this Consent Order, except in the event of an emergency, concerning data collection and analysis, and shall work cooperatively to improve the methods by which the NYSED Defendants collect and assess information concerning homeless students in Suffolk County and New York State. Monitoring ofSchool Districts 39. In addition to the data collection and analysis set forth above, and along with such other monitoring as NYSED deems appropriate and warranted under the circumstances, the NYSED Defendants agree to perform the following monitoring of the school districts: 40. In December 2004, NYSED conducted on-site reviews for compliance with homeless education laws and regulations of all fourteen School District Defendants and sixteen other districts with significant homeless populations (i.e., more than twenty-five homeless students at any one time) such as New York City, Buffalo and Long Island and/or found or suspected to be not in compliance with such laws or regulations based on LOUISE or other data. A second round of on-site reviews, including the fourteen School District Defendants, shall take
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place no later than January 1, 2007, and may occur sooner if circumstances warrant or NYSED
deems it appropriate. The NYSED Defendants shall conduct on-site reviews of other districts as
warranted, based on issues raised by LOUISE and other data, complaints or allegations
concerning non-compliance and the size and concentration of the homeless population in the
districts at issue.
41. The NYSED Defendants have developed and shall maintain criteria and protocols
for on-site reviews, to be discussed with Plaintiffs' counsel. These criteria will address, among
other things:
a. A review of the practices, procedures and programs of the school districts with respect to enrollment and transportation of homeless children, and other aspects of homeless education and compliance with the McKinney-Vento Act and New York Education Law§ 3209.
b. An assessment of the accuracy and completeness of data or information provided to NYSED by the school districts, including a sampling of files to ensure such accuracy and completeness.
c. A review of attendance records for homeless children to ensure that homeless children are receiving access to a free, appropriate public education comparable to their non-homeless peers and to ensure school districts' compliance with the McKinney-Vento Act, New York Education Law§ 3209 and related regulations.
d. An assessment of the school districts' transportation systems for homeless children to ensure that no undue delays are preventing homeless children from attending school or are resulting in unnecessary school absences.
e. An assessment of the school districts' transportation systems for homeless children to ensure that they are being provided with transportation to all activities for which non-homeless children are provided with transportation.
42. In addition to the foregoing, the NYSED Defendants shall conduct a review of the § 31 0 appeal forms submitted by homeless families, as set forth above, to determine the
existence of any trends or issues and to assess whether any districts' practices, procedures or programs may constitute barriers or obstacles to the education of homeless children. The
NYSED Defendants shall, as circumstances reasonably warrant, investigate any such districts to
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determine whether any additional action, beyond the scope of the specific appeals reviewed, is necessary or appropriate, and may follow up with appropriate trainings or plans for corrective action as warranted by the circumstances.
43. The NYSED Defendants shall conduct periodic reviews and assessments of referral forms received from the New York State Technical and Education Assistance Center for Homeless Students ("NYS-TEACHS") or any other Technical Assistance Centers or similar entities or organizations as well as complaints received from the general public. To the extent that NYSED determines that such referral forms or complaints reasonably suggest noncompliance by one or more school districts and that an investigation is appropriate, the NYSED Defendants shall promptly investigate the same, by on-site reviews or other appropriate means, to ensure compliance. Enforcement
44. The parties agree that the State has certain responsibilities in the enforcement of the McKinney-Vento Act, New York Education Law § 3209 and related laws and regulations concerning the education of homeless children. Accordingly, along with such other enforcement activities as NYSED deems appropriate and warranted under the circumstances, the NYSED Defendants agree to perform the following enforcement activities vis-it-vis the school districts:
45. The Homeless Education Program Manager (or the State Coordinator for Homeless Education), under the supervision of an Associate Commissioner at NYSED, shall receive, review and respond to copies of all referral forms from NYS-TEACHS or any other Technical Assistance Center for homeless education or related entity or organization concerning problems as to homeless children that could not be resolved by NYS-TEACHS or another Technical Assistance Center. The Program Manager (or State Coordinator) shall also receive
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and respond to calls from other sources, including parents or guardians of homeless children,

which involve allegations of homeless children missing any significant period of schooling.

46. The Program Manager (or State Coordinator) shall respond to each such referral

or call and shall maintain a written lo~ of each such call and the response or action taken

(including the time and date received along with any follow up and disposition). The Program

Manager (or State Coordinator), under the supervision of an Associate Commissioner of

NYSED, shall determine the appropriate response to be taken under the circumstances, including

but not limited to consideration of the following:

a. Providing a specific directive to the school district and/or the Technical Center;

b. Sending a letter or warning to the school district in question;
c. Communicating with OTDA or SCDSS concerning any transportation or other social services issues;
d. Requesting further information from the school district or other interested parties;

e. Directing additional training of school personnel;

f.

Referring the matter to the Associate Commissioner for appropriate action

which may include: communication to the school district, recommending

to the Commissioner of NYSED the removal of an intransigent school

superintendent, district superintendent, or school board member pursuant

to N.Y. Education Law§ 306, threatening to withhold NCLB funding, or

withholding NCLB funding; and

g. Taking such other action as may be appropriate under the circumstances to address and remedy any problems or issues with respect to the education of homeless children.
47. The NYSED Defendants, within their Compliance Report, shall report to the

Court and Plaintiffs' counsel concerning the number, nature, response and disposition to such

requests twice a year in the first year after entry of this Consent Order and once a year thereafter.

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48. The NYSED Defendants shall provide support to NYS-TEACHS or any other Technical Assistance Centers under contract with NYSED to enforce the laws and regulations concerning the education of homeless children as may be reasonably necessary.
49. The NYSED Defendants shall assess the feasibility of opening additional Technical Assistance Centers for homeless education elsewhere in New York State. Public Outreach
50. The NYSED Defendants agree that they will take reasonable measures to encourage the School District Defendants and the SCDSS Defendants to inform homeless families and unaccompanied youths in a timely manner of their right to receive services under the McKinney-Vento Act and/or New York Education Law§ 3209, and to provide accurate and complete information to those children and their families about their rights and options to enable them to obtain the services they need and/or desire. Such reasonable measures will include, but are not limited to, the following:
51. The NYSED Defendants agree that they shall make available in sufficient quantities for each school district, social service locations, including but not limited to shelters, motels, libraries, public health centers and other public sites in Suffolk County as are agreed upon by the parties, a poster or posters in English and Spanish which the NYSED Defendants or their agents or contractors may have developed or in the future will develop advising parents and guardians of their children's rights under the McKinney-Vento Act and/or New York Education Law § 3209 (the "Poster"). Such posters will include the hotline numbers for NYS-TEACHS or any other similar state contractor, and the National Center on Homeless Education. The NYSED Defendants shall direct the school districts to make these Posters available in each of the School District Defendants' schools and administration buildings and shall provider sufficient copies to
20

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 21 of 33
permit the Poster to be displayed in each runaway and youth shelter, in each homeless shelter and motel lobby in which SCDSS places homeless families, and in any other places agreed upon by the parties.
52. In addition, the NYSED Defendants agree that they shall make available in reasonably sufficient quantities for each homeless family and unaccompanied youth in Suffolk County a brochure or brochures in English and Spanish as the State Defendants or their agents or contractors may have developed or in the future will develop advising parents and guardians of their children's rights under the McKinney-Vento Act and/or New York Education Law§ 3209 (the "Brochure"). These Brochures shall be made available in all school districts' schools and administration buildings, in each runaway and youth shelter, in each homeless shelter and motel lobby in which social services agencies place homeless families, and in any other places agreed upon by the parties.
53. An Associate Commissioner at NYSED shall, by letter or memorandum, instruct all school districts to display the homeless education Posters prominently, distribute the homeless education Brochures to homeless children and families, and maintain a supply of the Brochures in each school building where parents and guardians conduct communications with school district personnel concerning enrollment, transportation or similar issues. The SCDSS Defendants shall be required to display the Posters prominently and maintain a supply of the Brochures in SCDSS offices or other locations where homeless families go to receive benefits from SCDSS including without limitation shelters, soup kitchens, healthcare for the homeless sites and social services offices, including those providing emergency housing, other governrnent supported housing, food stamps, and TANF.
21

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 22 of 33
54. Upon any future revisions to the Brochure or Poster, the NYSED Defendants shall provide an advance copy of the same to Plaintiffs' counsel to permit Plaintiffs' counsel to provide comments and suggestions. The parties shall confer in good faith concerning any such comments and suggestions.
55. The NYSED Defendants shall provide additional copies of the Brochure and Poster to all school districts and collaborate with the school districts, OTDA and SCDSS regarding the distribution of the Brochure and Poster to shelters and other appropriate locations to be discussed among counsel, as available currently and upon any future printings.
56. The NYSED Defendants shall coordinate efforts with the School District Defendants and the OTDA Defendants shall coordinate with the SCDSS Defendants to ensure that the family of each homeless child receives the Brochure at the point at which they are first identified as homeless, in the native language of the family, where available, or in English or Spanish, if not.
.Training
57. The parties agree that providing appropriate services to homeless children requires that relevant personnel and those involved in enrolling and transporting homeless children and youths understand the rights and needs of homeless children and have sufficient knowledge of homeless children's and unaccompanied youths' rights and needs sufficiently in order to be able to assist them. Accordingly, the NYSED Defendants agree to make available appropriate and reasonable training to all school district or local social services agency personnel who are likely to have contact with homeless children or their families concerning homeless children's education, or who are responsible for providing educational or related services to
22

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 23 of 33
homeless children or families. NYSED will collaborate with OTDA in development ofOIDA's training of local social services district personnel.
58. Among other things, as of February I, 2005, the NYSED Defendants conducted two-day Professional Development Sessions in New York City, Albany and Rochester concerning education of homeless children and data collection. All homeless liaisons and pertinent personnel from SCDSS and others involved in transporting, enrolling and educating homeless children were invited to attend. The State Defendants, where permissible, required representatives from school districts receiving funding under the McKinney-Vento Act to attend one of the Professional Development Sessions. The State Defendants otherwise encouraged appropriate school district representatives to attend one of the Professional Development Sessions.
59. In the above-mentioned training activity and others that the NYSED Defendants conduct or organize pertaining to educational services to be provided to homeless children and youths, the NYSED Defendants will invite as appropriate national experts and others to provide information concerning "best practices" under the McKinney-Vento Act that are being implemented outside of New York State.
60. The NYSED Defendants shall make available such additional training and support to school districts and invite local social service districts and agencies to participate in training offered either directly by NYSED or by NYS-TEACHS or another Technical Assistance Center under contract with NYSED, as is necessary and appropriate.
61. Relevant NYSED staff shall be appropriately trained with respect to McKinneyVento Act and New York Education Law§ 3209 and shall attend seminars and conferences as
23

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 24 of 33

appropriate. The NYSED Defendants shall keep a written record of such trainings including the

date, attendees and subject matters covered. 62. The NYSED Defendants shall provide appropriate training regarding the
McKinney-Vento Act and New York Education Law§ 3209, which shall be mandatory for those school districts which receive McKinney-Vento funding. The State Defendants will strongly encourage all School District Defendants to attend such training. The NYSED Defendants shall

keep records with regard to the training of the school districts' homeless liaisons (including date, attendees and subject matters covered) to be shared with the Court and Plaintiffs' counsel during

the periodic reports the State Defendants will make as set forth in this Consent Order.

Reporting 63.

The NYSED Defendants shall report to the Court and Plaintiffs' counsel as set

forth above. 64. In addition to the foregoing reporting, representatives from the NYSED
Defendants shall confer with Plaintiffs' counsel as appropriate during the meetings held pursuant to paragraph 42 herein to discuss any emerging issues or trends in the education of homeless

students.

IV. COLLABORATION AMONG STATE DEFENDANTS AND OTHER GOVERNMENTAL ENTITIES 65. In addition to such other activities as the State Defendants believe to be
appropriate, the State Defendants agree to conduct the following collaboration and cooperation activities:
66. The NYSED Defendants shall conduct monthly meetings (and additional meetings as may be periodically needed) with the OTDA Defendants to increase communication and coordination concerning homeless education. These monthly meetings shall be supported

24

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 25 of 33
and attended by appropriate NYSED personnel and the senior staff representative at OTDA (along with other relevant personnel) and will address the issues set forth in this Consent Order and will address any other issues relating to the access of homeless children and youths to a free, appropriate public education that the State Defendants reasonably deem to be pertinent. NYSED Associate Commissioner Evans-Tranumn shall attend all such monthly meetings for the first six months after the entry of this Order, bi-monthly for the following six months, and quarterly thereafter. NYSED personnel in attendance at the meetings will report to Associate Commissioner Evans-Tranumn concerning those meetings she does not attend.
67. The NYSED Defendants and the OTDA Defendants shall regularly collaborate concerning any problems or issues identified by OTDA as to SCDSS data and transportation systems and shall work cooperatively to develop appropriate plans to remedy the same.
68. NYS-TEACHS and any other Technical Assistance Center under contract with NYSED for the education of homeless children shall conduct (in collaboration with the NYSED Defendants) yearly informational conferences (in addition to such other technical assistance activities as are appropriate), and shall provide ongoing technical support to school districts, local social services districts and agencies, homeless liaisons and others.
69. The NYSED Defendants convened a statewide Homeless Advisory Committee ("HAC"), meeting on a quarterly basis in the first year after entry of the Order and as needed and at least twice per year after that. The HAC consists of senior representatives ofNYSED, OTDA, unaccompanied youth programs, and other programs relating to or affecting homeless families. The HAC is chaired by an Associate Commissioner at NYSED and shall address issues of homeless education with a particular focus on improving homeless children's and youths' access to a free, appropriate public education. The HAC shall invite members from the legal services
25

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 26 of 33

community and others involved in homeless education issues to discuss best practices, issues and concerns as to homeless education in New York State. The first HAC meeting was held on December 6, 2004.
70. The Homeless Education Program Manager at NYSED has been in communication with the homeless liaison from each of the fourteen School District Defendants to coordinate such activities as are appropriate with respect to homeless education, including without limitation the implementation of consent orders in this matter and implementation of the requirements of the McKinney-Vento Act and New York Education Law § 3209. Such communication shall continue as determined by NYSED to be appropriate to effectuate the requirements of the McKinney-Vento Act and New York education Law§ 3209.
71. Within thirty (30) days after the entry of this Consent Order, the Compliance Officer at OTDA shall contact the relevant personnel at SCDSS to initiate the data collection, monitoring and enforcement procedures set forth in this Consent Order.

V.

REVISION OF POLICIES

72. Within ninety (90) days of the entry of this Order, the State Defendants shall

revise any policies, procedures, guidelines, directives or other documents to incorporate, reflect

and/or communicate the terms of this Consent Order, as necessary.

73. The parties acknowledge that this Consent Order does not prohibit future

regulatory action by the State Defendants based on changes in relevant law consistent with the

provisions of this Consent Order. The parties acknowledge that should a change in federal or

state statutes or federal regulations occur that would render the State Defendants' performance

hereunder unlawful or prohibited, or if federal or state statutes or federal regulations change such

that the State is required to change its laws or regulations to comply with or to be eligible for

26

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 27 of 33
McKinney-Vento funding, the State Defendants shall notify Plaintiffs' counsel prior to implementing any such change in law, and shall move before this Court on notice to Plaintiffs' counsel as soon as is practicable to seek to amend the provisions of the Consent Order as appropriate. If any provision of this Consent Order or the application thereof becomes or is held invalid or unlawful, the other provisions or applications of the Agreement which can be given effect without the invalid or unlawful provisions or application shall be given effect, and to this end the provisions of this Consent Order are declared to be severable.
VI. MISCELLANEOUS 74. The parties shall confer in good faith to establish reasonable procedures to permit
immediate and direct communications for addressing any problems or concerns that may arise concerning compliance with this Consent Order
75. The parties agree to work together cooperatively to provide Plaintiffs' counsel with such information and documents as may be reasonably necessary to assess and evaluate the State Defendants' performance of the various obligations under this Order. The parties shall work together in good faith with respect to other documents that may be requested by the Plaintiffs' counsel, and the Defendants shall make a good faith effort to provide reasonably requested information on a prompt and expedited basis to the extent permitted under relevant laws and regulations.
76. The State Defendants shall each submit a separate written Compliance Report to the Court and to Plaintiffs' counsel once each six months in the first year after entry of this Consent Order, and once annually thereafter. Each Complian<;e Report will detail each State agency's activities and expenditures in connection with this Consent Order and such other activities NYSED and/or OTDA may have taken to monitor the education and/or transportation
27

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 28 of 33
of homeless children and any enforcement action or actions taken. The Compliance Report will also provide summaries of the information reported to NYSED by the school districts and to OTDA by SCDSS concerning the enrollment and transportation of homeless children and other aspects of the education of homeless children. The Compliance Report, while providing summary information, should be sufficient to provide the Court and Plaintiffs' counsel with an accurate understanding ofNYSED's and OTDA's activities under this Consent Order as well as the current state of the education and/or transportation of homeless children in the schools operated by the School District Defendants.
77. Information made available to the Plaintiffs' counsel under this Consent Order shall also be made available to counsel for any of the parties upon request. Personally identifiable information shall be kept confidential by counsel, and further disclosure is prohibited unless specifically authorized by law, court order or consent by the subject.
78. If, after prompt and good faith discussions, the parties have not been able to resolve their differences with respect to any particular problem or issue arising under this Consent Order, either party may submit the matter to the Court. Counsel will provide each other with appropriate written notice of their intention to seek judicial relief. The Court shall have continuing jurisdiction, for the entire term of this Consent Order, to issue such rulings and fashion such relief as may be reasonably necessary to promote the terms and purposes of this Consent Order.
79. The individuals executing this Order represent that they are authorized to sign for and bind the party or parties for whom they execute the Order. The individual(s) signing on behalf of the State Defendants represent and warrant that the execution and delivery of this Consent Order has been duly authorized and approved.
28

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 29 of 33
80. In construing this Consent Order, the same shall not be construed against any party on the basis that the party was the drafter. Rather, the language of this Consent Order shall in all cases be construed as a whole, according to its fair meaning and purpose, and not strictly for or against any of the parties.
81. No waiver of any breach of any term or provisions of this Consent Order shall be construed to be, or shall be, a waiver of any other breach of this Consent Order. No waiver shall be binding unless in writing and signed by the party waiving the breach. Failure to enforce, or delays by a party in seeking enforcement of the terms of this Consent Order against any breach thereof shall not act as a waiver of any such breaches or of any subsequent breaches.
82. This Consent Order may not be modified except as ordered by the Court, and with good cause shown. Parties may seek a modification of this Consent Order only upon fifteen days' written notice to counsel for the other affected parties, or, in the event of emergent circumstances, with as much advance notice as is practicable under the circumstances.
83. This Consent Order may be executed in counterparts, and each counterpart, when executed, shall have the full efficacy of a signed original. Photocopies of such signed counterparts may be used in lieu of the originals for any purpose.
84. The terms of Paragraph 5 of this Order regarding payment of attorneys' fees and costs, are subject to the approval of all appropriate state officials, including, with respect to payment, the New York State Comptroller, in accordance with the provisions of New York Public Officers Law Section 17. Should the payment of attorneys' fees and costs pursuant to Paragraph 5 of this Order not be approved by the New York State Comptroller, then the provisions of Paragraph 5 herein shall be deemed null and void, and plaintiffs shall be considered a prevailing party for the purposes of making an appropriate motion seeking counsel fe"s and
29

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 30 of 33 costs claimed as a result of this litigation up to and including execution of this Order. Should disputes subsequently arise with respect to the enforcement of this Consent Order, the parties may submit to the Court any appropriate motion concerning attorneys' fees or costs incurred in seeking enforcement.
85. Nothing herein shall be deemed an admission of fault or liability by any party. 86. The terms of this Consent Order shall not, in any manner, be construed as determinative of the accuracy of factual or legal allegations raised in this action, or given precedential effect or any other effect except in actions between the parties to this Order. 87. This Consent Order contains all the terms and conditions agreed upon by the parties hereto.
30

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 31 of 33

~'bv
Dated: }leveH!"bilf 'd-1-

, 2005

We hereby consent to the foregoing:

On behalf of the Plaintiffs:

effrey Alan Simes (JS-7080) Christopher Garvey (CG-3323) Goodwin Procter LLP 599 Lexington Avenue New York, New York 10022 Tel: (212) 813-8800 Fax: (212) 355-3333
Of counsel:
Maria Foscarinis (MF-3647) National Law Center on Homelessness
and Poverty 1411 K Street, N.W., Suite 1400 Washington, D.C. 20005 Tel: (202) 638-2535 Fax: (202) 628-2737

Deborah Berger (DB-Jill) of counsel to the Long Island Advocacy Center, Inc. 490 Wheeler Road, Suite 165 C Hauppauge, New York 11788 Tel: (631) 234-0467 Fax: (631) 234-4069
Lewis M. Wasserman (LW-7134) Wasserman Steen LLP 50 Medford Avenue Patchogue, New York 11772 Tel: (631) 758-3367 Fax: (631) 758-3369

31

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 32 of 33
We hereby consent to the foregoing: On behalf of the State Defendants: ELIOT SPITZER Attorney General of the State ofNew York
By: SUSAN M. CONNOLLY Assistant Attorney General Attorney for the State Defendants 300 Motor Parkway-Suite 205 Hauppauge, New York 11788 Tel.: (631) 231-2424 Fax: (631) 435-4757
For the OTDA Defendants:
.A
~
So ORDERED this 3l_ day ofM~J. ,200~

Case 2:04-cv-00705-ADS-ARL Document 150 Filed 03/31/06 Page 33 of 33
We hereby consent to the foregoing: On behalf of the State Defendants:

SUSAN M. CONNOLLY Assistant Attorney General Attorney for the State Defendants 300 Motor Parkway-Suite 205 Hauppauge, New York 11788 Tel.: (631) 231-2424 Fax: (631) 435-4757
For the OTDA Defendants:

For the NYSED defendants:

By:

ARN

Counsel

uty Commissioner for Legal Affairs

New York State Education Department

89 Washington Avenue

Albany, New York 12234

Tel.: (518) 474-6400

Fax: (518) 473-2925

'i4.

1L_ So ORDERED this

day of M~

2oob

Hon. Arthur D. Spat!, United

 
 Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 1 of 26

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

-------------------------------------------

NATIONAL LAW CENTER ON HOMELESSNESS AND

POVERTY, R.I., individually, and as parent and natural

guardian of A.B., a minor child, M.W., individually, and as

parent and natural guardian ofDa.W., Di.W., Dq.W., T.H. and Civil Action No. 04 0705

S.J., minor children, M.K., individually, and as parent and

(ADS/ARL)

natural guardian of S.P., a minor child, T.K. and N.K.,

individually, and as parents and natural guardians ofK.K.,

D.M., individually and as parent and natural guardian ofM.M.,

C.T., individually and as grand parent and guardian ofM.W.,

and R.C., individually, and as parent and natural guardian of

J.C., on behalf of themselves and all those similarly situated, SETTLEMENT

AGREEMENT AND

Plaintiffs,

CONSENT ORDER

BETWEEN PLAINTIFFS

v.

AND COUNTY

DEFENDANTS

STATE OF NEW YORK, NEW YORK STATE

EDUCATION DEPARTMENT, RICHARD P. MILLS (as

Commissioner of Education of the State ofNew York);

SHEILA EVANS-TRANUMN (as Associate Commissioner of

Education of the State of New York); PATRICIA MCGUIRK

(as Program Manager for the Homeless of the New York State

Education Department); NEW YORK STATE OFFICE OF

TEMPORARY AND DISABILITY ASSISTANCE, ROBERT

DOAR (as Acting Commissioner of the New York State Office

of Temporary and Disability Assistance), SUFFOLK

COUNTY DEPARTMENT OF SOCIAL SERVICES, JANET

DEMARZO (As Commissioner Of The Suffolk County

Department Of Social Services), DAN HICKEY (As Associate

Commissioner Of The Suffolk County Department Of Social

Services), and JOHN DOE SCHOOL DISTRICTS 1-10,

Defendants.

Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 2 of 26

BACKGROUND

This action was brought by the National Law Center on Homelessness and Poverty and a class of homeless children and parents of homeless children to enforce, inter alia, the provisions of the McKinney-Vento Act (42 U.S.C. § 11431 et seq.) and New York Education Law§ 3209.

In their Complaint, the Plaintiffs allege that homeless children in Suffolk County face

substantial obstacles to a free, appropriate public school education in violation of the McKinney-

Vento Act and New York Education Law§ 3209. Defendants Suffolk County Department of Social Services ("SCDSS"), Janet DeMarzo and Dan Hickey (collectively, the "SCDSS Defendants"), denying liability but agreeing on the importance of educating homeless children

and desiring that this action be settled by appropriate Order and without the burden of continued protracted litigation, agree to the jurisdiction of this Court over the parties and the subject matter

of this action, and hereby waive, for purposes of this Order, hearings and findings of fact and conclusions of law on all issues. The parties further agree to the entry of this Order as final and

binding among themselves as to the issues raised in the Amended Complaint or which could

have been raised in the Amended Complaint. In resolution of this action, the parties hereby AGREE, and the Court expressly

APPROVES, ENTERS and ORDERS the following:

I.

DURATION OF CONSENT ORDER AND GENERAL TERMS

I. This Consent Order is effective upon its entry by the Court and shall remain in

effect through and including March I, 2008. 2. This Court shall retain jurisdiction of this action and jurisdiction over the parties
during the term of this Order for the purpose of enforcing the Order as may be necessary. Upon substantial compliance with this Consent Order up through and including March I, 2008, this

Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 3 of 26

matter shall be dismissed unless the Plaintiffs move, for good cause shown upon notice to the

SCDSS Defendants, for its continuation to carry out the purposes or provisions of this Order. In

the event that the Plaintiffs move to extend the duration of this Order, it shall remain in effect

until such motion is resolved.

3. The parties to this Order shall endeavor in good faith to resolve informally any

disputes or issues that may arise under or concerning this Order.

4. The time limits set forth throughout this Order may be expanded by the mutual,

written agreement of the Plaintiffs and the SCDSS Defendants.

5. The parties agree that Plaintiffs are to be deemed the "prevailing party" for

purposes of 42 U.S.C. § 1988(b). Plaintiffs will submit a motion for reasonable attorneys' fees

and costs up to and including the date of entry of this Order. This motion will be submitted to

the Court within fourteen (14) days of the entry of this Order by the Court.

6. As used, herein, the following definitions shall apply:

a. Defendants State of New York, The New York State Education Department, Richard P. Mills (as Commissioner of Education of The New York State Education Department), Sheila Evans-Tranumn (as Associate Commissioner of Education of The New York State Education Department) and Patricia McGuirk (as Program Manager for the Homeless of the New York State Education Department) will be referred to collectively herein as the "State Defendants."

b. Defendants New York State Office of Temporary and Disability Assistance, and Robert Doar will be referred to as "OTDA."

c.

Defendants Suffolk County Department of Social Services ("SCDSS"), Janet

DeMarzo and Dan Hickey will be referred to collectively herein as the "SCDSS

Defendants." The term SCDSS is intended to include Suffolk County Department

of Social Services and all persons acting in the employment of, at the direction of

or at the behest of Suffolk County Department of Social Services.

d. Defendants Longwood Central School District, Hampton Bays School District, Middle Country School District, Copiague Union Free School District, South
Huntington School District, Patchogue-Medford School District, William Floyd School District, Central Islip School District, Bay Shore Union Free School
District, South Country School District, Brentwood School District, North

2

Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 4 of 26

Babylon School District, Amityville School District and Riverhead School District will be referred to collectively herein as the "School District Defendants."

e. "Plaintiffs" shall mean Plaintiff National Law Center on Homelessness and Poverty, named class representatives R.I., A.B., M.W., Da.W, Di.W, Dq.W, T.H. and S.l., M.K., S.P., K.K. and T.K., and all members of the Plaintiff classes
certified by the Court in this matter.

f.

"Homeless" shall have the same definition as set forth in 42 U.S.C. § ll434a(2).

g. "Parent" or "guardian" shall mean any person "in parental relation" to, or a "custodian" of, any homeless child, as set forth in New York State Education Law
§ 3212.

h. "State Plan" shall mean the New York State Plan for the Education of Homeless Children and Youth, and any amendments, modifications or successive plans.

1.

"School-aged" shall mean of sufficient age to be eligible for any free pre-school

or public school education made generally and publicly available to children of

such an age.

J.

"Children" shall mean both children and youths, as the terms are used in the

McKinney-Vento Act and New York Education Law § 3209.

k. "Unaccompanied Youth" shall mean youth not in the physical custody of a parent or guardian, who otherwise meet the definition of "Homeless."

I.

"School Transportation" shall mean transportation to and from the school district

selected by the parent, guardian or unaccompanied youth, transportation to the

program set forth in a homeless child's individualized education plan, including

pre-school students with disabilities, and transportation to any activities, including

but not limited to extracurricular activities, pre-K programs (for special education

students), head start programs, summer school and any other program for which

non-homeless children are provided transportation by the school district in which

they are enrolled.

II. PROVIDING INFORMATION TO HOMELESS CIDLDREN AND FAMILIES

7. The parties agree that providing complete and timely information to homeless

families is essential to ensuring that homeless children and Unaccompanied Youth receive the

educational services to which they are entitled under federal and state law. Accordingly, the

Defendants agree that they will take all reasonable measures to timely inform homeless families

and Unaccompanied Youths of their right to receive services under the McKinney-Vento Act

3

Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 5 of 26
and/or New York Education Law§ 3209, and will provide accurate and complete information to those children and their families about their rights and options to enable them to obtain the services they need and/or desire. Such reasonable measures shall include, but are not limited to, the following: Homeless Rights Posters and Brochures
8. The SCDSS Defendants agree that they shall prominently display in each homeless shelter office and in the waiting room of each SCDSS administration building where parents transact business with the SCDSS Defendants such poster or posters in English and Spanish as the State Defendants or their agents or contractors may have developed or in the future develop advising parents and guardians of their children's rights under the McKinneyVento Act and/or New York Education Law§ 3209. Next to such poster or posters, the SCDSS Defendants shall prominently display the name and number of a relevant contact person at SCDSS to assist with homeless education issues and the number for any hotline for homeless students or parents maintained by New York State Technical and Education Assistance Center for Homeless Students ("NYS-TEACHS") (or any other state or local contractor that provides similar services), and/or the State Defendants or their designees.
9. The SCDSS Defendants shall ensure that the poster or posters referenced above are prominently and permanently displayed in each location in each shelter and in the waiting room of each administration building where parents and guardians discuss or document travel arrangements for students. SCDSS will also request that hotels and motels in which homeless families in SCDSS care are housed display the poster or posters in appropriate places within the hotel or motel.
4

Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 6 of 26
10. In addition, the SCDSS Defendants shall agree to distribute, as set forth below, any informational brochures or materials prepared by the State Defendants concerning the rights of students or parents under the McKinney-Vento Act and/or New York Education Law§ 3209. The SCDSS Defendants shall request from the State Defendants and maintain a supply of any such brochures (in English and Spanish and such other languages as the State Defendants or NYS-TEACHS or a similar state or local contractor provides) at each shelter at which SCDSS places homeless families in a quantity sufficient to supply each homeless family. SCDSS shall also provide a supply of such brochures to each hotel or motel in which SCDSS places homeless families. No later than May 30, 2005, and once each school year thereafter, the SCDSS Defendants shall distribute a copy of any such brochure to each identified homeless family.
11. The SCDSS Defendants shall ensure that the Brochures referenced above are distributed to homeless families when they first request housing or services from SCDSS, and are also provided to homeless families by shelter workers at the shelters where SCDSS places homeless families.
12. The SCDSS Defendants shall coordinate efforts to ensure that the family of each such child receives the Brochure at the point at which they are first identified as homeless, that it becomes a part of the SCDSS "intake forms" that homeless families receive when they lack (or are in danger of losing) permanent housing, and that it is in the native language of the family, where available, or in English, if not.
13. The SCDSS Defendants shall make reasonable efforts to ensure that homeless families placed in motels are informed of their rights as to the education of homeless children as promptly as possible by case workers or other SCDSS staff that provide services to such families.
5

Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 7 of 26
Training ofShelter and SCDSS Personnel 14. The parties agree that providing appropriate services to homeless children
requires that personnel at SCDSS and others involved in transporting homeless children understand the rights and needs of homeless children and have sufficient knowledge of homeless children's rights and needs to be able to help them. Accordingly, the SCDSS Defendants agree that they, in coordination and conjunction with OTDA and NYS-TEACHS, will provide appropriate and reasonable training to all personnel who are likely to have contact with homeless children or their families concerning homeless children's education.
15. The SCDSS Defendants shall cooperate fully with all trainings provided, mandated, or sponsored by OTDA that pertain to the transportation of homeless children to and from school. The SCDSS Defendants shall ensure that all personnel involved in the transportation of homeless children will attend such trainings.
16. To the extent that OTDA does not provide to SCDSS personnel training concerning the transportation of homeless children to and from school, SCDSS shall train its personnel as set forth in this paragraph: At least twice each school year, the SCDSS Defendants shall require appropriate staff from shelters (including, without limitation, domestic violence programs and programs for Unaccompanied Youth), and SCDSS staff involved in the transportation of homeless children to and from school, to attend training on the rights of homeless children. This training will include the proper use of forms needed to implement transportation, the time frames for completion of the forms and transmitting them to the SCDSS Defendants, the tracking requirements specified by OTDA, the role of shelter staff or SCDSS personnel in providing information to homeless families and assisting them in obtaining school transportation and coordinating with school and social services personnel to ensure that delays in implementing transportation are kept to a minimum. In addition, SCDSS will provide training to
6

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new shelter workers and new SCDSS staff involved in transportation of homeless children to and from school on a monthly basis to ensure that all persons involved in providing services for homeless children are aware of their responsibilities.
17. The SCDSS Defendants shall maintain a complete and accurate record of the identity of all SCDSS personnel who received training, the dates of the training, and copies of any materials used or distributed at the training. The SCDSS Defendants shall further document any relevant personnel who did not receive the training, and shall make the necessary arrangements to have such personnel receive the training on the earliest practicable occasion.
18. The SCDSS Defendants shall make the trainings referred to above available to any third party transportation companies that provide transportation services for homeless children receiving housing from SCDSS. The SCDSS Defendants shall encourage any such third-party transportation companies to attend such trainings.
19. The SCDSS Defendants shall ensure that relevant SCDSS and/or shelter personnel attend such trainings as OTDA may require.
20. To the extent that the SCDSS Defendants employ a training curriculum other than or in addition to that provided by OTDA or other State agencies with respect to the trainings referred to or required herein, the SCDSS Defendants shall include the following in any such other training curriculum: (i) the causes and effects of homelessness; (ii) the educational and other needs of homeless children; (iii) the rights of homeless children and obligations of the school districts under the McKinney-Vento Act, New York Education Law § 3209 and any regulations thereunder; (iv) the proper use of the various forms for identifying and providing services to homeless children; (v) the nature and scope of services available for homeless children, both within and without the school district; (vi) the identification of homeless children;
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 9 of 26
(vii) the importance of a mechanism for coordinating with SCDSS concerning the needs of homeless children; (viii) the particular educational, social and emotional difficulties and challenges faced by homeless children; (ix) the definition ofhomelessness; and (x) the particular needs of Unaccompanied Youth.
21. The training curriculum and/or summary materials will be provided to all employees who attend the trainings. All new hires involved in school transportation for homeless children will receive copies of such materials as part of their employee orientation materials.
22. The provider of the above-referenced training curriculum and in-service program shall be specially trained in and knowledgeable about the curriculum and shall be effective at communicating and teaching the required material. The training curriculum and in-service program will use appropriate handouts, slides or other visual aids to maximize the pedagogic impact of the program.
23. The SCDSS Defendants shall provide Plaintiffs' counsel with a copy of any training curriculum and in-service program in advance for review and comments. The parties shall work in good faith to discuss any comments or concerns about the training curriculum and in-service program.
24. Counsel for the SCDSS Defendants and Plaintiffs shall confer to determine appropriate venues for providing information to homeless families about the education of homeless children. Ill. TRANSPORTATION OF HOMELESS CHILDREN
25. The parties to this Consent Order acknowledge and agree that transportation poses a particular difficulty for homeless families and is essential to ensuring that homeless children
8

Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 10 of 26
receive the educational services to which they are entitled. As a result, the SCDSS Defendants agree that they will make all reasonable efforts, consistent with this Consent Order, to ensure that homeless children receive transportation to and from school (and/or any preschool services for special education students or after or before school activities to which non-homeless children are provided transportation) each day. Emergency Services Housing
26. The SCDSS Defendants shall immediately discontinue any policy or practice that requires homeless children to be physically present with their families after the first 24 hours of initial emergency placement in order for the families to obtain Emergency Services housing.
27. The SCDSS Defendants agree that homeless families will spend no more than two business days in Emergency Services housing placements, after which time such homeless families will be assigned to a shelter or equivalent longer-term emergency housing placement. The SCDSS Defendants shall amend their rules, policies and/or procedures to reflect the foregoing.
28. If SCDSS is unable to arrange for a shelter or other emergency placement outside of Emergency Services housing after two business days, SCDSS shall provide school transportation for any affected homeless children by van, taxi or other means for each day that the child remains in Emergency Services housing and until such time as the child receives both a stable shelter or other emergency housing placement and regular bus transportation between such placement and school.
29. If SCDSS requires a parent or guardian to accompany a child to school, the SCDSS Defendants shall ensure that such parent or guardian is excused from any SCDSS attendance or other requirements that the parent or guardian is likely to miss as a result of accompanying a child to school and the SCDSS Defendants shall notify any other appropriate
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 11 of 26
agencies whose policies or requirements may be affected by the need of a parent or guardian to accompany a homeless child to or from school. School Transportation Following Initial Longer Term Emergency Housing Placement
30. Upon a homeless child's placement by the SCDSS Defendants in a shelter or other stable emergency housing location, if a bus route or other reliable and safe means of transportation to the child's chosen school district is already in place, the child may begin taking that bus or other means of transportation on the first school day following his/her arrival at the shelter.
31. If, on a homeless child's first placement by SCDSS in a shelter or other stable emergency housing location (including shelters or motels), no bus route already exists to that child's chosen school district, the SCDSS Defendants shall have three (3) business days from the child's arrival at the shelter in which to arrange regular, continuous school bus transportation. Thus, by way of example only, if a homeless child is first placed by SCDSS in a shelter on Monday and there is no existing bus route available for that child, SCDSS shall arrange school bus transportation for that child no later than Thursday morning.
32. Notwithstanding the foregoing paragraph, if a homeless child has already missed school as a result of being placed in Emergency Services housing, such child shall be provided transportation starting with the third day after the child's arrival in the SCDSS system. The SCDSS Defendants may use vans or taxi services to accomplish this transport until regular, continuous bus transportation is arranged. Thus, by way of example, if a homeless child arrives at an Emergency Services housing office on Monday, that child shall be provided transportation to school no later than Thursday, regardless of whether a bus route has been established for the child at a subsequent stable shelter or other emergency housing placement.
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 12 of 26
33. In order to expedite transportation for homeless children, the SCDSS Defendants shall require shelter workers and SCDSS motel case workers to transmit necessary forms to arrange transportation immediately, and in no event later than the next business day after a homeless child's arrival at a shelter or stable housing placement. If a homeless family refuses or declines to permit a STAC form to be filled out, SCDSS will be required to provide school transportation for any children of such family as soon as possible thereafter as is reasonable under the circumstances.
34. The SCDSS Defendants shall transmit to any third party contractors of the SCDSS Defendants (including any bus companies or transportation management companies such as GlobeGround and Suffolk Transportation) any forms necessary to arrange school transportation for homeless children on the same day such forms are received if the forms are received by the SCDSS Defendants by 1:00 p.m., and as soon as practicable the next morning the such forms are received after 1:00 p.m. The SCDSS Defendants shall ensure multiple pick-up times so that forms received in the late morning or afternoon are promptly transmitted to those personnel establishing bus routes.
35. The SCDSS Defendants shall, in good faith, review the procedures and processes used by any of their third party transportation contractors to determine whether there are additional ways in which delays or processing time for the transportation of homeless children can be minimized or eliminated.
36. In addition to the foregoing, SCDSS shall review its own processes and paperwork requirements to reduce any other delays or inefficiencies. Subsequent Transportation Changes
37. Once a homeless child has been placed in a long term shelter or other stable housing placement, the SCDSS Defendants shall make reasonable efforts, consistent with their
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 13 of 26
other legal duties, to minimize any subsequent relocations of the child or disruption to the child's education.
38. If the SCDSS Defendants decide to change a homeless child's housing placement for administrative purposes, or to improve the housing or services of a particular homeless family, or as part of changes in shelter or motel availability, or under circumstances where the SCDSS Defendants have advance warning of such a change or know of the need for such a move prior to 2:00 p.m. of the day of the move (a "Planned Move"), the SCDSS Defendants shall immediately begin making necessary arrangements for school transportation for any affected children.
39. If the SCDSS Defendants move a homeless child as part of a Planned Move, the child must not experience any significant gaps or delays in school transportation and the SCDSS Defendants shall provide transportation for any affected children the next school day after a Planned Move, at the latest. If the SCDSS Defendants are not able to pre-arrange regular, continuous and uninterrupted bus transportation by the next school day for such children in advance of a Planned Move, they will provide school transportation for the child by van, taxi or other means such that the child will receive school transportation commencing no later than the day after the Planned Move.
40. If the SCDSS Defendants move a homeless child as a result of unforeseen but compelling circumstances (such as a major violation of shelter rules or SCDSS rules) or without advance warning of a serious need to move a child and such move takes place after 2:00p.m. (an "Unplanned Move"), then the SCDSS Defendants shall arrange for regular, continuous safe and reliable transportation no later than the second business day after the Unplanned Move occurs. Thus, by way of example, if a homeless child is unexpectedly moved on Monday evening for
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 14 of 26
compelling and unforeseen reasons, the SCDSS Defendants shall provide that child with regular, continuous safe and reliable transportation no later than Wednesday morning.
41. If the SCDSS Defendants are not able to pre-arrange regular, continuous bus transportation for such a child by the second school day after an Unplanned Move, they will provide school transportation for the child by van, taxi or other means beginning on the second school day after the Unplanned Move.
42. Regardless of whether a move is a Planned Move or Unplanned Move, if SCDSS requires a parent or guardian to accompany a child to school, the SCDSS Defendants shall ensure that such parent or guardian shall be excused from any SCDSS attendance or other requirements that the parent or guardian is likely to be unable to fulfill as a result of accompanying a child to school. Miscellaneous Transportation Issues
43. Notwithstanding any of the foregoing provisions of this Consent Order, the SCDSS Defendants shall make whatever transportation arrangements are necessary to ensure that homeless children do not miss major examinations, including New York State assessment tests and Regents examinations, midterm examinations and final examinations. The SCDSS
'
Defendants shall, if necessary, provide a van or taxi service to homeless children for whom no regular bus service is yet available in order to ensure that such children are able to sit for such examinations.
44. If the inability or failure of the SCDSS Defendants to arrange transportation has resulted in a child missing school, the SCDSS Defendants shall inform the relevant school district's homeless liaison and attendance officer of that fact. Should any complaint be filed by any person or entity regarding the fact that the child has missed school, and the reason the child missed school is the inability or failure of the SCDSS defendants to arrange transportation for
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that child, SCDSS shall in writing immediately convey that fact to Child Protective Services and/or the Department of Probation, including, if necessary, the child's probation officer, law guardian, or family court judge.
45. Absences from school of homeless children due to changes in housing placement, administrative delays, unforeseen problems in transportation or other similar reasons shall not be a basis for any action against the homeless child's family by the SCDSS Defendants or any shelter with which the SCDSS Defendants contract.
46. The SCDSS Defendants shall provide transportation for homeless children of families receiving services from the SCDSS Defendants to any institution providing public educational services to the child, including any placement indicated on such a child's individualized education plan (IEP) or individualized family service plan (IFSP) where a school district would normally provide transportation. Such transportation shall be provided in accordance with the time frames set forth above and subject to the same provisions of this Consent Order applicable to transportation of homeless children who are not receiving special education services.
47. In selecting temporary housing arrangements for homeless families with schoolaged children, the SCDSS Defendants shall consider the effect of any proposed arrangement on the education of such children. The SCDSS Defendants shall place homeless families with school-aged children as close as possible to their school district of origin if so requested by the families of such homeless children. The SCDSS Defendants shall inform homeless families of their right to request housing in the school district of origin, if available and appropriate. If the SCDSS Defendants do not place a homeless family in housing in the district of origin for such
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 16 of 26
family's school-aged children, the SCDSS Defendants shall document the reason or reasons why the family was placed in a different district.
48. If the SCDSS Defendants are providing shelter to the homeless child's family and do not provide transportation on certain school days for reasons beyond the control of the child's family, the SCDSS Defendants shall give written notice to the homeless liaison of the school district that that child attends of the reason for the absence so as to avoid an unexcused absence on the child's attendance record.
49. If a homeless child is out of school due to a lack of transportation while residing m a SCDSS shelter placement, the SCDSS Defendants shall direct shelter staff and motel caseworkers to make reasonable efforts to contact the school district's homeless liaison and shall coordinate with the homeless liaison a plan for the child to receive class notes, homework, and other school assignments.
50. In providing transportation for homeless children, the SCDSS Defendants shall, where requested by a parent or guardian of a homeless child, provide transportation to and from any after-school, before-school, preschool (in the case of special education children), summer school or extracurricular activities or free meal programs for which transportation is provided by the relevant school district for non-homeless children. SCDSS will provide such transportation in the same circumstances (and in the same hours) in which school districts provide transportation. Personnel of the SCDSS Defendants shall inform homeless families of their right to such transportation, and the SCDSS Defendants shall cooperate with the relevant school district as necessary to ensure that homeless children are receiving all appropriate educational services.
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 17 of 26
51. Counsel for the Plaintiffs will provide to counsel for the SCDSS Defendants a list of SCDSS and shelter rules that the Plaintiffs believe should be amended to promote efficient school transportation for homeless children. The SCDSS Defendants agree to meet promptly with the Plaintiffs to discuss in good faith the list and possible amendments to SCDSS and shelter rules so as to promote school transportation for homeless children.
52. The SCDSS Defendants shall take reasonable and appropriate measures to reduce the travel time of homeless children to and from school.
53. The SCDSS Defendants shall take all reasonable measures, consistent with this Consent Order, to avoid unnecessary disruption in the transportation of homeless children.
54. Where homeless children are placed in home instruction or suspension by their school districts, the parents or guardians of such children shall not be found to be in violation of shelter, motel or SCDSS rules as a result of having to be present with their children during the pendency of such home instruction or suspension.
55. In negotiating future contracts with third-party transportation providers for homeless children, the SCDSS Defendants shall attempt to negotiate appropriate assurances and protections against disruptions to school transportation for homeless children and shall ensure that any such contracts are consistent with the requirements of this Consent Order and the goal of providing continuous school transportation for homeless children as quickly as possible.
56. Any responses by the County Social Services Defendants to written inquiries or complaints by parents or guardians of homeless children as to transportation arrangements shall be made in writing to the parent or guardian, with a copy retained in the case files maintained concerning the families of those children. Such documents will be made available to the New York State Office of Temporary and Disability Assistance upon request
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 18 of 26
57. The purpose of this section is to ensure that homeless children are transported to and attend school as regularly as possible, and the provisions of this Consent Order should be construed accordingly. IV. MONITORING AND DATA COLLECTION
58. Upon the receipt by the SCDSS Defendants of the forms necessary to arrange for school transportation for a homeless child, including but not limited to the "STAC Form" and any forms for use by GlobeGround or other transportation providers (collectively, the "Transportation Forms") from a shelter, motel or other case worker, SCDSS shall enter into a written log book the time and date of the receipt of such forms, the child seeking transportation and the shelter and school involved. (This log will be referred to herein as the "SCDSS Logbook.")
59. Each caseworker at a shelter, motel or other housing facility shall be required by SCDSS to maintain a written log of the time and date each homeless child enters the shelter, motel or housing facility, and the time and date on which the Transportation Forms were transmitted to the SCDSS Defendants. (This log will be referred to herein as the "Shelter/Motel Logbook.")
60. The SCDSS Defendants shall maintain a written log, or reqwre each transportation company or third party vendor contracting with the SCDSS Defendants to maintain a written log, reflecting the time and date on which each child placed in SCDSS received transportation services, including the name of the child, shelter and school involved. (This log will be referred to herein as the "Transportation Logbook.")
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61. The SCDSS Defendants shall provide copies of the SCDSS Logbook, the Shelter/Motel Logbooks and the Transportation Logbook to OTDA or its designated representatives or agents as requested by OTDA.
62. The SCDSS Defendants shall provide such other information and statistics to OTDA or its designated representatives or agents as OTDA may from time to time require.
63. The SCDSS Defendants shall periodically review and check the information it maintains for review by OTDA, including, without limitation, the SCDSS Logbook, the Shelter/Motel Logbooks and the Transportation Logbook, to ensure accuracy, integrity and

completeness of data. 64. The SCDSS Defendants shall designate one of its personnel as a "Compliance
Officer" to ensure that the requirements of this Consent Order are being satisfied, to review relevant SCDSS policies and procedures therefor, and to ensure that the SCDSS Defendants are maintaining and reviewing the information required by this Consent Order. The Compliance Officer shall be given the requisite authority and responsibility by the SCDSS Defendants to

carry out these goals.

V.

COORDINATION

65. The parties agree and acknowledge that coordination among the State, County and

local authorities responsible for providing educational services to homeless children is essential

to ensuring that homeless children enroll in and stay in school. The SCDSS Defendants

therefore agree that they will coordinate, communicate and collaborate on a regular basis as to

the homeless children within their care to ensure that all such children have access to all of the

educational services to which they are entitled under the relevant laws and regulations.

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66. The SCDSS Defendants agree to communicate with the Homeless Liaisons from each of the School District Defendants in which homeless children placed by SCDSS attend school, telephonically or in person, at least twice each school year (once per semester), to discuss any problems or issues concerning the education of homeless children, with particular emphasis on transportation and provision of information to homeless families. The SCDSS Defendants shall record the time and date of each such conference and any problems or issues identified, and shall retain the record of each such conference with the other documents the SCDSS Defendants are required to maintain under this Order.
67. The SCDSS Defendants shall keep a written log of their communications with State and local authorities concerning the school transportation of homeless children. VI. APPEALS AND DISPUTE RESOLUTION
68. The parties recognize and agree that any and all disputes concerning or relating to the education of homeless children and Unaccompanied Youth must be resolved as expeditiously as possible. The parties further recognize and agree that homeless children and Unaccompanied Youth are entitled, during the pendency of any dispute or appeal concerning the enrollment or transportation of homeless children or Unaccompanied Youth, to immediate and continuing admission and transportation to the school in which enrollment is sought.
69. The parties agree to use direct and expedited discussions amongst counsel for addressing any problems or concerns that may arise concerning compliance with this Consent Order, including an informal "hotline" to resolve disputes. This hotline will consist of procedures by which representatives of the Plaintiffs (or others involved in the education of homeless children) can quickly and effectively reach the Compliance Officer of SCDSS, or such other personnel of SCDSS as may be authorized and responsible for helping to address any
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 21 of 26
problems or concerns arising out of this Consent Order. The parties shall confer in good faith to establish reasonable procedures to permit immediate and direct communications.
70. If, after prompt and good faith discussions, the parties have not been able to resolve their differences with respect to any particular problem or issue arising under this Consent Order, either party may submit the matter to the Court. The Court shall have continuing jurisdiction, for the entire term of this Consent Order, to issue such rulings and fashion such relief as may be reasonably necessary to promote the terms and purposes of this Consent Order.
71. The SCDSS Defendants shall provide assistance to homeless families seeking to appeal from any decision involving the transportation or education of a homeless child as to any appeals that such homeless families may bring. The SCDSS Defendants shall provide families with a written explanation of any denial of requested services. Such explanations shall be accompanied by 1) information about their right to appeal, 2) information about their right to access to counsel without fee such as Nassau/Suffolk Law Services or Long Island Advocacy Center (including the phone numbers for those agencies), the Brochure referenced above, and any required forms to effectuate an appeal.
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VII. EvALUATION AND ASSESSMENT 72. SCDSS will provide to Plaintiffs' counsel, on a regular and prompt basis, any
documentation SCDSS provides to OTDA concerning the transportation of homeless children, subject to appropriate measures to maintain the confidentiality of private information concerning any individual homeless families. The parties shall work together in good faith with respect to the exchange of information pertinent to the implementation of this Consent Order, to the extent permitted under relevant laws and regulations.
73. Once each six months in the first year after entry of the Order, and once annually thereafter, the SCDSS Defendants shall provide the Court and Plaintiffs' counsel with a general Compliance Report, which will discuss the SCDSS Defendants' efforts and initiatives with respect to the matters set forth in this Consent Order.
74. The SCDSS Defendants shall conduct a program rev1ew of their school transportation policies, procedures and systems once annually, and shall report to the Court and Plaintiffs' counsel concerning the same in the Compliance Report.
75. Information made available to the Plaintiffs' counsel under this Order shall also be made available to counsel for any of the parties. VIII. REVISION OF POLICIES
76. On or by July 1, 2005, the SCDSS Defendants shall rev1se any policies, procedures, guidelines, directives or other documents to incorporate and/or reflect the terms of this Order, as necessary.
77. The parties acknowledge that this Order does not prohibit future legislative or regulatory action by the SCDSS Defendants consistent with the provisions of this Order.
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IX. MISCELLANEOUS 78. The individuals executing this Order represent that they are authorized to sign for
and bind the party or parties for whom they execute the Order. The individual(s) signing on behalf of the SCDSS Defendants represent and warrant that the execution and delivery of this Consent Order has been duly authorized and approved.
79. In construing this Consent Order, the same shall not be construed against any party on the basis that the party was the drafter. Rather, the language of this Consent Order shall in all cases be construed as a whole, according to its fair meaning and purpose, and not strictly for or against any of the parties.
80. No waiver of any breach of any term or provisions of this Consent Order shall be construed to be, or shall be, a waiver of any other breach of this Consent Order. No waiver shall be binding unless in writing and signed by the party waiving the breach. Failure to enforce, or delays by a party in seeking enforcement of the terms of this Consent Order against any breach thereof shall not act as a waiver of any such breaches or of any subsequent breaches.
81. This Consent Order may not be modified except as ordered by the Court, and with good cause shown. Parties may seek a modification of this Consent Order only upon fifteen days' written notice to counsel for the other affected parties, or, in the event of emergent circumstances, with as much advance notice as is practicable under the circumstances.
82. This Consent Order may be executed in counterparts, and each counterpart, when executed, shall have the full efficacy of a signed original. Photocopies of such signed counterparts may be used in lieu of the originals for any purpose.
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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 24 of 26

Dated: August 31, 2005 We hereby consent to the foregoing:
On behalf of the Plaintiffs:

Je y Alan imes (JS-7080) Christopher Garvey (CG-3323) Goodwin Procter LLP 599 Lexington Avenue NewYork,NewYork 10022 Tel: (212) 813-8800 Fax: (212) 355-3333
Of counsel:
Maria Foscarinis (MF-3647) National Law Center on Homelessness
and Poverty 1411 K Street, N.W., Suite 1400 Washington, D.C. 20005 Tel: (202) 638-2535 Fax: (202) 628-2737

Deborah Berger (DB-1111) Of counsel to Long Island Advocacy Center, Inc. 490 Wheeler Road, Suite 165 C Hauppauge, New York 11788 Tel: (631) 234-0467 Fax: (631) 234-4069
Lewis M. Wasserman (LW-7134) Wasserman Steen LLP 50 Medford Avenue Patchogue, New York 11772 Tel: (631) 758-3367 Fax: (631) 758-3369

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Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 25 of 26
We hereby consent to the foregoing: On behalf of the SCDSS Defendants:
C~tl5 Tet?-MIIJI
'J~NN l fG K 1<' Me No.JYlc?J.f~
Name
~'St·_.shillt CoLLV1~ A-tion·~~
~,;:da"t/~-N I'H\onu~
{!k; ~
~~~ Jennifer McNamara, Esq. Suffolk County Department of Law H. Lee Dennison Bldg. 100 Veterans Highway Hauppauge, NY 11788
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, Case 2:04-cv-00705-ADS-ARL Document 151 Filed 03/31/06 Page 26 of 26
~
]L So ORDERED this day of M,4-.€Cfbo<Jb
Hon. A'rthur'1:5. 91J"aV,upye~MtK"District Judge
25