Definition of Homelessness
Illinois State Board of Education
Legal Department
August 10, 2000
You have requested guidance on the definition of homelessness under the Illinois Education for Homeless Children Act (105 ILCS 45 or "Act"). Specifically, the question is whether "doubled-up" families are considered homeless. The answer is that some individuals or families who are staying with another individual or family meet the definition of "homeless," while others do not. A case-by-case approach is needed.
Section 1-5 of the Act provides the following definition"
"Homeless person, child or youth" includes, but is not limited to, any of the
following:
(1) An individual who lacks a fixed, regular, and adequate nighttime place of
abode.
(2) An individual who has a primary nighttime place of abode that is:
(A) a supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare hotels,
congregate shelters, and transitional housing);
(B) an institution that provides a temporary residence for individuals
intended to be institutionalized; or
(C) a public or private place not designed for or ordinarily used as a
regular sleeping accommodation for human beings.Some situations of doubling-up may come within the current Section 1-5
definition of homelessness, in that these situations do not provide a "fixed,"
"regular" or "adequate" place for spending the nights (see number (1) of the
definition). When the living arrangement is not fixed or regular, the homeless guest family stays only at the whim of those who lease or own the premises. Other situations may fall within the homeless definition because as a result of doubling-up, a person spends the night in a "place not designed or ordinarily used as a regular sleeping accommodation for human beings" (see number (2) (C) of the definition).When first effective on January 1, 1995, the Section 1-5 definition of a "homeless person, child or youth" also included a number (3) which read: "[a]n individual who, due to economic hardship, domestic violence, or abuse, is staying in the residence of another while seeking permanent housing." Within the same month, this language was deleted by Public Act 88-686, effective January 24, 1995.
Public acts are to be interpreted in accordance with legislative intent. With respect to the deletion of number (3) from the Section 1-5 definition of homelessness, an issue is whether the General Assembly intended by this deletion that doubled-up situations never be regarded as homelessness or that these situations be reviewed on a case-by-case basis using general principles found in parts of the definition other than number (3).
In reciting the content of Senate Bill 881 (which became Public Act 88-686), one of the sponsors, Representative Turner, said:
There's legislation in here to help the Education for the Homeless Act and
we, at many times, do not want to admit the problem of homelessness in
this State. But because of that, it proposes a different problem for children
who fall in that category, and there is certain school districts where it
becomes a burden on that particular district. And we we have outlines in
this legislation to deal with children that fit into that category. And the
people who benefit or the people who help shape that legislation are the
Principals Association, the Illinois Association of School Boards, and the
South Cook Organization for Publication Education, the State Board of
Education, the Governor's Office, Legal Services Support Center and the
Illinois Coalition to End Homeless. And that my friend, are those people
who have been covered in Senate Bill 881 and move for the favorable
adoption of Senate Bill 881.Illinois House of Representatives, transcription of floor debates, p. 61, December 1, 1994.
Representative Cowlishaw, another sponsor, said:
. . . I rise in support of the Motion to adopt the First Conference
Committee Report to Senate Bill 881. The presentation give by
Representative Turner was very accurate. I have heard a couple of
rumors that somebody thought there was something about the changes
that are being made to the Education for the Homeless Act that there
was someone who was opposed to those changes. That is not true.
Everybody is in accord. There is no element of this Conference
Committee Report that in any way is controversial. Every single Member
of this Body should vote for this legislation.Illinois House of Representatives, transcription of floor debates, p. 62, December 1, 1994.
The House of Representatives acted consistently with Representative Cowlishaw's urging and voted nearly unanimously in favor of the First Conference Committee Report on Senate Bill 881 (114 "yes," 1 "no," and 1 "present"). Illinois House of Representatives, transcription of floor debates, p. 69, December 1, 1994. The first Conference Committee Report included the deletion of number (3) from the definition of a "homeless person, child or youth." 88th General Assembly, First Conference Committee Report on Senate Bill 88, p. 67. If the deletion of number (3) from the definition had been intended by legislators, and viewed by interested entities, as an action that totally eliminated any double-up situations from the homeless definition, it is difficult to imagine that such a deletion would have been non-controversial.
Moreover, it would not be unreasonable to argue that number (3) in the homeless definition as initially enacted was subsequently deleted for the reason that, by attempting to spell out certain reasons why an individual was staying with another, this part of the original definition was likely viewed by some as overly restrictive. For instance, if shortly before the start of a school year a family was threatened with gang violence against its residence in School District A, and, while police were attempting to find and arrest the perpetrators, the family moved temporarily into District B to live with relatives in a doubled-up situation, such an arrangement may not have fallen within the stated conditions of number (3). In other words, the argument against homelessness in that situation would have been that neither "economic hardship," "domestic violence," nor "abuse" prompted the doubling-up. In addition, number (3) required that in order to be regarded as homeless, a person or family needed to be "seeking permanent housing" while staying in another's residence. In some cases, that additional requirement would have placed an unnecessary burden upon homeless unemployed families who understandably may have intended to search for permanent housing only after find employment that would permit making payments for housing. The point here, restated, is that it is reasonable to conclude that the legislative intent for deleting number (3) did not include making a plenary and unqualified deletion of doubling-up from the definition of homelessness.
To interpret Section 1-5 of Illinois Act in such a way as to engage in a case-by-case review of doubled-up situations is consistent with the June 1995 "Preliminary Guidance for the Education for Homeless Children and Youth Program" published by the United States Department of Education. On page 21 of this document, the following paragraph appears:
Children and youth who are living in "double-up" accommodations, that is
are sharing housing with other families or individuals, are considered
homeless if they are double-up because of a loss of housing or other similar
situation. Families living in doubled-up accommodations voluntarily to save
money generally should not be considered homeless.Furthermore, a comparison of the definition of homelessness in Section 1-5 of the Illinois Act with the comparable definition in Stewart B. McKinney Homeless Assistance Act (42 U.S.C. ¶ 11302) reveals that the language in the Illinois statute essentially and substantively tracks that of the federal counterpart and that, in addition, the Illinois language is broader than the federal language. For example, the Illinois language expressly "is not limited to" the definitional specifics whereas the federal language does not have such a phrase even though the intent of the phrase is implied by the McKinney's Act's mere use of the word "includes." Also, the federal language references: transitional housing for the mentally ill [emphasis added]" whereas the comparable Illinois language references merely "transitional housing" without any limiting phrase.
Section 2-3.26 of the School Code (105 ILCS 5/2-3.6) reflects an intention to cooperate with the federal government with respect to school programs for which federal allotments are available. When possible, to interpret Illinois' Education for Homeless Children Act in a manner consistent with corresponding federal legislation, rules and guidelines is certainly within the spirit of Section 2-3.26. Such an interpretation has been adopted in:Settlement Agreement and stipulation to Dismiss: in the case of Miller et al. v. Chicago School Reform Board et al., No. 92 CH 5703, Circuit Court of Cook County, Illinois, County Department, Chancery Division, November 21, 1996. In this agreement, it is provided that "[t]he parties shall use the U.S. Department of Education's Preliminary Guidance for the Education of Homeless Children and Youth Program definitions . . . "
In summary, given the language of the current homeless definition, Illinois legislative history and the related guidance from the federal government, there is no sound basis for either (1) a plenary exclusion of doubled-up situations (whether with a relative or non-relative) from that definition or (2) a view that all doubled-up situations be regarded as homelessness. In the past, staff of the Illinois State Board of Education have look to U.S. Department of Education for guidance on the definition of homelessness and have advised that doubled-up situations should be reviewed on a case-by-case basis to determine whether they fall within the definition of homelessness. Our present legal opinion confirms the ISBE's past views on this aspect of the definition. The general principles of Section 1-5 of the Act, as read in conjunction with the United States Department of Education's guidelines regarding doubled-up situations, should continue to be used in making these determinations.
Respicio F. Vazquez
General Counsel
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