Who Are Youth Experiencing Homelessness and What Are Their Legal Issues?
At least 4.2 million youth and young adults experience homelessness each year. That's at least 1 in 30 minors, ages 13–17, and 1 in 10 young adults, ages 18–24. These youth often flee homes in which they experience physical abuse or sexual abuse or both. While adolescents experience abuse and neglect at the same rates as younger children, older children are more likely to be perceived as responsible for their own maltreatment. Likely due to this perception, adolescents are less likely to receive support from a public system of support like foster care, and more likely to end being diverted to a juvenile or criminal justice system.
Those young people who do enter foster care because of abuse or neglect don't fare well when they either don't find permanency or the permanency they thought they had falls apart. One (albeit dated) report found that more than one in five youth who age out of foster care experienced at least one day of homelessness within a year of leaving care.
Living in shelters or on the streets, homeless youth are at high risk for physical and sexual assault or abuse and physical illness, including HIV/AIDS. Homeless youth also face a high likelihood of becoming sexually exploited or trafficked commercially. This is at the top of the wide range of serious risk behaviors that adolescents may engage in as a result of their past maltreatment, including premature sexual activity, unintended pregnancy, emotional disorders, suicide attempts, eating disorders, alcohol and drug abuse, and delinquent behavior.
Despite all of these setbacks, many homeless youth remain in school. A 2005 survey found that before entering shelter, 79 percent of homeless youth regularly attended school, and 78 percent of youth in transitional housing were still in school.
Given these demographics, the interactions between our legal system and homeless youth should be quite apparent. But this connection often escapes lawyers, policymakers, and service providers. To address this gap, a number of articles and resources have more clearly described what public interest lawyers and members of the private bar can and should be doing for youth experiencing homelessness.
Over the past two decades, the work of individual attorneys, private and corporate counsel, policymakers, and the youth themselves has started to flip the legal system to one that is proactive—helping youth avoid or shorten homelessness—rather than reactive, pushing hundreds of thousands of young people onto the streets. The advocacy by attorneys has been in a variety of venues: on behalf of individual youth, through legal education, through policy advocacy, and through impact litigation. Given the trajectory of the past 20 years, the role of attorneys in ending homelessness will likely grow exponentially in the decades to come.
Advocacy Programs: Lawyers Helping Individual Youth Achieve Safety and Stability
Representation of youth experiencing homelessness by civil legal services lawyers, law students, or pro bono attorneys had been going on before 1998. For example, in 1992, Kevin Ryan started his legal career representing youth at Covenant House, one of the world's largest homeless youth service providers. Ryan now is president and chief executive officer of Covenant House. Rich Hooks Wayman started representing youth experiencing homelessness in 1993 for the Legal Aid Society of Minneapolis. Undoubtedly, there were others around the country, but their numbers were few.
By the early 2000s, a number of other organizations had begun to provide legal representation to this population, including Street Youth Legal Advocates of Washington (SYLAW), a collaboration between law students and legal services, and the Center for Children's Advocacy in Connecticut, which operated in part in a local high school. The number of programs has grown slowly over the past 20 years.
But the real evolution in legal services has come more recently. Spurred in part by the American Bar Association's Homeless Youth Legal Network (HYLN) and Homeless Youth Legal Network Pro Bono, an unprecedented amount of attention is being paid to this area of law. HYLN was created to increase legal services for youth and young adults experiencing homelessness. Its goal is to lift up existing collaborations, highlight best practices, and expand the reach of legal services beyond its current footprint. HYLN Pro Bono has similar goals but is focused on engaging the private bar. Both initiatives have been the focus of ABA President Hilarie Bass, marking a high-water mark for the attention the ABA has paid to this issue. President Bass has tirelessly and effectively used the attention that comes with the presidency to push for more engagement from the bar on this issue.
To date, HYLN has identified existing legal services for homeless youth in 21 states and has been working to create more.
By no means was HYLN the first effort of the ABA to extend more legal services to homeless youth. In 2002, the ABA profiled several legal programs for homeless youth, including SYLAW and the Center for Children's Advocacy, in the publication How to Start Your Own School-Based Legal Clinic. In 2003, the Young Lawyers Division highlighted legal efforts for homeless youth through its One Child One Lawyer initiative. Returning to the topic in 2014–2015, the Young Lawyers Division created Project Street Youth (PSY), a precursor to HYLN. In addition to educating and raising awareness of the issue, PSY created a toolkit for young lawyers to set up legal clinics and expressly encouraged lawyers to engage in lobbying for better laws.
Policy Advocacy: Changing the Law to Empower Youth Experiencing Homelessness
Perhaps unsurprisingly, lawyers have played a significant role in policy advocacy—specifically, legislative policy. Often, it was the attorneys who were doing frontline advocacy who were integral to the larger policy efforts. For example, Kevin Ryan wrote the New Jersey Homeless Youth Act in 1999. Richard Hooks Wayman wrote the Minnesota Runaway and Homeless Youth Act, which ultimately passed in 2006. Numerous attorneys played a role in crafting and passing Washington's Homeless Youth Act in 2015.
Many of the national laws and regulations pertaining to this population have been the result of advocacy by lawyers at advocacy organizations, such as the National Network for Youth, Schoolhouse Connection, True Colors, the National Alliance to End Homelessness, and others.
Led by the Commission on Homelessness and Poverty and the Section of Litigation, the ABA itself has dived deep into the area of state and national policy. As early as 2004, the ABA took a stance on homeless youth and the law, weighing in on educational access for homeless children and youth. In 2007, it approved a resolution on the protection of lesbian, gay, bisexual, transgender, and questioning foster and homeless youth from discrimination and violence. In the past decade, the ABA has issued policy resolutions on myriad related topics such as support for the federal Runaway and Homeless Youth Act. At its most recent meeting, the 2018 midyear, the ABA passed two resolutions. The first called for "integrated, systemic approaches within administrative, civil and criminal court contexts to address the special needs of youth and young adults experiencing homelessness." The second endorsed the United Nations' General Comment No. 21 on Children in Street Situations, discussed in greater detail below.
But perhaps the most comprehensive domestic work the ABA has done in this area has been around model state statutes. In 2008, the Commission on Homelessness and Poverty, in partnership with the National Network for Youth, held a first-ever convening of experts to agree upon what those model statutes were. The result was Runaway and Homeless Youth and the Law: Model State Statutes, a comprehensive compendium of suggested statutes, along with rationale and examples of where those statutes were already in operation. The ABA has hosted other summits, as well, most recently 2016's Homeless Youth Law and Policy Summit, which featured numerous federal partners and focused on issues such as addressing criminalization and access to identity documents.
Work by legal advocates to push for law change has intensified and has taken different forms. For example, in 2016, Texas Appleseed staff, volunteers, and a pro bono team of more than 30 pro bono attorneys and summer associates issued Young, Alone, and Homeless in the Lone Star State: Policy Solutions to End Youth Homelessness in Texas. The report specifically identified policy changes needed in Texas's educational, criminal justice, foster care, and health care systems. Similarly, in 2015, Columbia Legal Services in Washington issued a report focused on policy solutions for homeless youth who interacted with the juvenile justice system, Falling Through the Gaps: How a Stay in Detention Can Lead to Youth Homelessness.
Suing for Impact: Systemic Litigation for Homeless Youth
Unlike the policy world, where action has been robust, impact litigation over the past 20 years has been sparse.
Historically, litigation was in response either to criminalizing youth homelessness or to NIMBYism, and most took place more than 20 years ago. For example, in City of Seattle v. McConahy, 86 Wash. App. 557 (1997), a formerly homeless youth unsuccessfully challenged an ordinance prohibiting sitting or lying down in Seattle's commercial areas. Like City of Seattle, more recent litigation has treated homeless youth as part of broader populations.
However, a 2013 New York case, C.W. et al. v. City of New York, specifically focused on homeless youth themselves. That case challenged New York City's practice of turning homeless youth away from shelter due to a lack of space, as well as discharging them from shelter after 30 or 60 days. Although the case is still pending, the New York City Council recently acted to extend stays in shelter.
Broader foster care litigation has occasionally called out youth homelessness. The settlement agreement in Braam v. Washington State, a class action foster care reform case, specifically addresses youth homelessness. First, the agreement required that the Washington Department of Social and Health Services revamp its policies and reduce the number of youth who were missing from foster care. Second, the agreement required the state to take steps to reduce youth homelessness by offering supportive services and out-of-home care benefits to foster youth until age 21. A settlement in a New Jersey foster care case, Charlie and Nadine H. v. Codey, also addressed youth homelessness. One of the key requirements in that case was to increase services to teens both in and exiting from foster care, and a requirement to develop of hundreds of transitional living units.
In the education world, many of the issues in impact litigation have related to both the rights of students in families experiencing homelessness as well as unaccompanied youth, but the cases themselves have almost solely been brought by children in families. For example, in 2015, in National Law Center on Homelessness & Poverty v. New York, the plaintiffs secured an agreement that the state of New York, numerous school districts, and social service providers would follow the law as it related to students experiencing homelessness, including providing complete and timely information to unaccompanied homeless youth.
International Efforts: The ABA Expands Its Efforts Across the Globe
It is notable that, while the U.S. has some well-developed legal systems to assist youth, it is the sole nation in the world not to have ratified the Convention on the Rights of the Child.
In other countries, international law has been directly used to address the treatment of youth experiencing homelessness. For example, in 1999, in Villagrán-Morales v. Guatemala, the Inter-American Court of Human Rights found that Guatemala had violated the rights of five murdered street-connected children under both the Inter-American Convention on Human Rights and the Inter-American Convention to Prevent and Punish Torture. Neither of these conventions has been ratified by the United States.
But in the 19 years since the Villagrán-Morales decision, there has been sparse litigation even outside the U.S. There has been some movement in more recent years, including a 2011 United Nations Human Rights Council resolution on street children and a 2012 United Nations Office of the High Commissioner report on the protection and promotion of the rights of street children working or living on the street or both working and living on the street.
But there is hope for more enforcement of the rights of homeless youth domestically and internationally. In 2017, the United Nations issued General Comment 21 on Children in Street Situations, the first international legal framework to protect the rights of street children, which will provide clear opportunities for international advocacy, though with less impact in the United States.
The lead-up to and implementation of the General Comment was and will be heavily influenced by lawyers. In 2015, the ABA, working with Baker & McKenzie and international partners, hosted the first International Summit on the Legal Needs of Street Youth. This effort was spurred, in part, by the successful 2008 Summit on the Legal Needs of Street Youth in the United States. To assist with the preparation of the General Comment, Baker & McKenzie and the Consortium for Street Children partnered to conduct listening sessions with youth themselves in four capitals across the globe. In addition, they jointly developed a Global Advocacy Atlas to share information on policies and demographics of children in street situations. And, in 2017, the ABA, Baker & McKenzie, and others convened international experts in Sao Paolo, Brazil, to discuss how to implement the General Comment at the International Summit on the Legal Rights of Street-Connected Children and Youth. The report that came from the summit will not only guide policy implementation across the globe but will also help with litigation for violations of international rights.
Lawyers Get Creative: Other Legal Supports for Youth Experiencing Homelessness
Attorneys have tried to find other ways to empower youth experiencing homelessness. Twenty years ago, educating youth experiencing homelessness on their rights was often limited to creating pamphlets with titles only slightly better than "So you want to get emancipated?" The growth of the Internet has opened up more possibilities for explaining the rights, responsibilities, and options afforded by the law.
The best example of this has been the rapidly spreading Homeless Youth Handbooks. The handbooks, all located at www.homelessyouth.org, have been a partnership of Baker & McKenzie, corporations like Starbucks and Disney, and local legal services providers like Texas Appleseed. The handbooks are online or coming online in 10 states and offer comprehensive information to youth and their advocates through a question-and-answer format.
The involvement of corporations in homeless youth legal issues was not unheard of 20 years ago—my Equal Justice Works fellowship to work with homeless youth had been sponsored by AT&T Wireless. But the engagement of so many mega-corporations in so many states in work that entails hundreds of staff hours was certainly not something that could have been foreseen in the late 1990s.
The ABA has also published other helpful resources to assist in the protection of the rights of homeless youth. In 2002, the ABA published the first edition of Educating Children Without Housing: A Primer on Legal Requirements and Implementation Strategies for Educators, Advocates and Policymakers. The ABA bestseller is now heading towards its fifth edition, and has helped students, educators, and advocates across the country understand and enforce the rights of students who are homeless. Other ABA publications have specifically detailed issues related to homeless youth, including Lawyers Working to End Homelessness (2006) and Changing Lives: Lawyers Fighting for Children (2014).
Summary: Where Will the Next 20 Years Take Us?
Twenty years ago, I graduated from law school and started representing youth experiencing homelessness full time. Those of us in this peculiar area of law felt lonely and encountered confused colleagues who acted as if our practice was a narrow, niche area of law—one that might fade away as the advocates turned toward more serious endeavors. Instead, in the two decades since, it has risen to be a top priority of the American Bar Association, has seen the ranks of lawyers practicing in this area grow exponentially, and has seen domestic and international policy not only increase but also become reflective of the reality that this population intersects with as many areas of law as any.
It will be meaningless, however, if, in the next 20 years, those efforts do not result in an end (or virtual end) to youth homelessness itself. If we do get there, it will only be because lawyers have pushed upstream, to address the causes of youth homelessness, litigating and amending the legal structures that create this avoidable outcome in the first place.
At that point, in 2028, the article we write will be one that is solely historical, with no need to write about the future of lawyering for homeless youth.