California fails to implement federal education law, denying students in foster care their right to school transportation.
At least 35,000 school-aged California children live in foster care today.
Entering the system is, invariably, traumatic. Oftentimes, stability in school can be the only salve in the tumult of these children’s lives.
Understanding this need, the federal government has taken concrete steps towards increasing the educational stability of students in foster care. A key, but tricky, component is ensuring foster youth have transportation to and from the school where they are most likely to excel.
“We have known for decades that education stability is a fundamental part of the educational success of students in foster care,” said Jackie Wong, government relations director at the National Center for Youth Law. “For this reason, advocates and youth nationwide have shared with policymakers the importance of ensuring that children and youth in foster care are afforded every opportunity to stay in their school of origin.”
Those advocates and youth finally succeeded in 2015 when President Barack Obama signed the Every Student Succeeds Act, the largest overhaul of federal education policy since No Child Left Behind.
The massive law included a mandate for educational agencies to implement plans to transport students in foster care to their school of origin. In its most narrow sense, school of origin means the school a child was in at the time he or she was first placed into foster care.
The statute also established a clear December 2016 deadline instructing “local educational agencies” to “develop and implement clear written procedures governing how transportation to maintain children in foster care in their school of origin when in their best interest will be provided, arranged, and funded.”
But recent actions by California’s Department of Education (CDE), the Los Angeles County Office of Education and the Los Angeles County Board of Supervisors have made it impossible for CDE to reasonably argue that either it or the state’s 1,000-plus school districts complied with the law by the December 2016 deadline. The breach exposes California’s public school system to penalties on a $1.8 billion federal education grant this fiscal year.
Instead of accepting responsibility, CDE has doubled down on its assertion that it “is not out of compliance” and that enforcement from the federal Department of Education (ED) is unlikely. While ED has not yet commented on California’s case, four members of Congress have.
“States are obligated to meet the deadline,” said Senator Chuck Grassley (R-Iowa) in an email statement. “The U.S. Department of Education should hold them to account for meeting the deadline or help them meet their obligations if something is unclear.”
Meanwhile, many students in foster care across California are being forced to navigate an often long and difficult journey back to their “schools of origin,” with only spotty support from the school systems mandated to help them.
Trains, Buses and Automobiles
Los Angeles County’s 4,000 square miles are crisscrossed by 20,000 miles of road. It is home to 88 cities, 81 school districts and 20,000 school-aged foster youth, according to the Los Angeles County Office of Education.
A 13-year-old boy who lives in Compton has to travel east and across the Los Angeles River to attend a middle school in the community of Paramount. The boy’s two-bus commute started when he was 11 and moved to his grandmother’s home, according to Dave Stein, the boy’s volunteer advocate with Court Appointed Special Advocates of Los Angeles.
“Everybody along the way acknowledged his right to return to his school of origin,” Stein said. “That was never in dispute. What was in dispute was getting him there from Compton.”
Stein said that he spoke with the middle school’s principal, whom he described as “unwilling or unable to do anything.”
Instead, the county’s Department of Children and Family Services provided a small amount of money for the boy to take the city bus. “For an 11-year-old boy to take two buses from Compton to Paramount is a hardship,” Stein said.
Stein asked ridesharing companies Uber and Lyft to donate rides. Uber did not. Lyft did transport the boy a handful of times, but when that was over he was back on the bus.
“The child rose to the occasion, and still to this day gets himself to and from school on that bus system,” Stein said.
For former foster youth Maria Serrano, the situation was more dramatic.
At around noon on an October day in 2012, Serrano, then 16, told her high school counselor that her mother wasn’t protecting her and her younger sister from the mother’s boyfriend. By 6 p.m., social workers were in the house.
Soon Serrano and her little sister were uprooted from their South Los Angeles neighborhood, put in a car and transported across the San Bernardino Mountains to their new foster home in Victorville, a community set in the vast, arid exurbs of Los Angeles County.
“It was really scary going out into the middle of nowhere, not knowing who you are going to be with,” Serrano, now 20, said. “It was very frightening, something I wouldn’t want other people to go through.”
While it would take her a few weeks to realize it, Serrano, then in foster care, had a right to remain at West Adams Preparatory High School, her “school of origin.” This meant that while she lived outside West Adams’ school district, its administrators had to allow her to stay enrolled.
Transportation. That was the hard part.
Serrano remembers getting up at 3 a.m. every morning. She would catch a ride to Pasadena with her foster dad, then take two trains and a bus, arriving at 8:15 a.m.
Realizing that she could attend West Adams “opened up hope for me,” Serrano, now a college student, said. “To be taken from there one day to the other was pretty harsh.”
Jill Rowland is the education program director at the Alliance for Children’s Rights, a legal advocacy firm that represents foster children in Los Angeles. She said transportation is an issue “in every kind of way” in some of her open cases.
“I think DCFS is very well intentioned in providing caregiver mileage reimbursement, but social workers’ knowledge [on school of origin rights] on the ground is not where it needs to be,” Rowland said.
Of Compliance and Penalties
As described above, the federal Every Student Succeeds Act mandated “local educational agencies” to “develop and implement” transportation plans for foster youth by Dec. 10, 2016.
Subsequent guidance from the federal Department of Education (ED) put the onus on State Educational Agencies, like CDE, to ensure compliance, and makes clear where penalties would come from.
To wit: On January 17, Tom Torlakson, California’s superintendent of public instruction, sent a letter to county offices of education regarding the implementation of Every Student Succeeds.
“The educational stability requirements (school of origin, immediate enrollment, records transfer, points of contact and transportation) took effect on December 10, 2016, and implementation is a condition on each state’s FY 2016 Title I grant award,” Torlakson wrote, intentionally marking the deadline in bold.
Title I is ED’s largest program, doling out $14.9 billion to school districts across the country every year to increase spending on the poorest students. California is the largest recipient at $1.8 billion.
Despite Torlakson’s letter acknowledging that failure to comply could affect the state’s Title I allocation, CDE Communications Director Bill Ainsworth said that said that the federal government was unlikely to do anything.
“There is and never has been any chance of confusion over these deadlines putting $1.8 billion of Title I funding at risk,” Ainsworth said in an email statement. “Title I funding is distributed through a formula. The federal government can, but rarely uses these funds to require compliance with federal laws. If they do, however, the first step is a warning by placing a condition on the distribution of funds. There have been no conditions placed on Title I funds because there has been no violation of ESSA [Every Student Succeeds].”
History would suggest that Ainsworth is right about the Department of Education’s unwillingness to levy penalties on the Golden State. In 2013, then Education Secretary Arne Duncan threatened to withhold federal funds to California if it revamped its testing system. When California did just that, Duncan backed down.
But that was under Obama.
President Donald Trump has been outspoken in his intention to cut federal funding to so-called sanctuary cities, many of which are in California. Furthermore, with the confirmation of Mick Mulvaney last week as the director of the Office of Management and Budget, the administration’s primary fiscal officer is passionate about cutting federal spending.
While a spokesman for the federal Department of Education said that the department had no comment as to penalties “at this time,” four members of Congress did.
Senators Al Franken (D-Minn.) and Chuck Grassley of Iowa have both worked on foster care and education policy for years.
In 2011, Franken led an effort within the Senate Health, Education, Labor and Pensions Committee to improve educational stability for foster youth. In 2015, he introduced the “Educational Stability for Foster Youth Act,” which included the transportation mandates rolled into that year’s comprehensive Every Student Succeeds Act.
“For a lot of foster kids, school is where they feel safe, secure, and are able to find certainty,” Franken said in an email statement. “That’s why I championed a measure to make it easier for foster youth to stay in their school even if they move outside their district. The Education Department needs to make sure that states are abiding by the law and providing foster students with these opportunities.”
Grassley, who co-sponsored the 2015 educational stability legislation, agreed, stating that the Department of Education should hold states “to account” on Every Student Succeeds’ educational stability mandates.
Congresswoman Julia Brownley (D-Calif.) championed educational stability during her tenure in the state’s legislature. In 2010, she sponsored Assembly Bill 1933, which expanded the definition of a child’s school of origin.
“The Every Student Succeeds Act made clear that local education agencies and states have a duty to ensure that foster youth have reliable transportation to their schools, which is consistent with the legislation I carried in the California legislature which allowed for school of origin consistency,” Brownley said in an email statement. “So, I’m highly supportive of the requirement to provide such services. Since the ESSA rulemaking is not finalized, however, it is doubtful, and I would strongly oppose any penalty being assessed.”
Congresswoman Barbara Lee (D-Calif.), engaged in both child welfare and education policy, was concerned with any penalty that failure to comply could bring to the state.
“The Every Student Succeeds Act is critical to their [foster youth] success and we must ensure these opportunities remain available to our children,” Lee said in an email statement. “As a member of the education funding committee and the Congressional Foster Youth Caucus, I will continue working with state and local officials to ensure vital federal dollars remain in my district and the state.”
While CDE’s Bill Ainsworth insists that the agency “is not out of compliance” with Every Student Succeeds, it is hard to see how that could be the case. CDE’s defense, according to Ainsworth, is that state educational agencies have an ambiguous role in implementation of ESSA.
“As you stated, ESSA requires all districts to have plans regarding transportation of foster youth by December 12, 2016 [sic],” Ainsworth wrote. “The requirement for a plan for the transportation of foster youth to their school of origin is new work at the federal and state levels. Of course, California will comply with the law. At this time, the formal role for state education agencies has yet to be fully identified by the U.S. Department of Education (ED) in statute, regulation and guidance, and California Department of Education (CDE) staff have approached ED legal counsel for additional clarity over the last year.”
While most of the guidance issued by ED is clear that the state must ensure that plans were “developed and implemented” by the December 10, 2016, deadline, a joint letter from the Department of Education and the Department of Health and Human Services issued in June of 2016 offers some ambiguity:
“ED will also include a condition on each State’s FY 2016 Title I grant award that requires each SEA [state education agency] to ensure that, by December 10, 2016, an LEA [local educational agency] receiving Title I funds will collaborate with the State or local child welfare agency to develop and implement clear, written procedures governing how transportation to maintain children in foster care in their schools of origin when in their best interest will be provided, arranged, and funded for the duration of time in foster care.”
While this suggests that state education agencies like CDE may have only had to “ensure” that school districts “will collaborate,” there was never any question that state agencies have a role to play. Further, final guidance in a December 5, 2016, letter accompanying the Department of Education’s final regulations makes the state’s role eminently clear:
“To facilitate a smooth transition to the new foster care educational stability requirements under Title I, the U.S. Department of Education (ED) placed a condition on each SEA’s fiscal year 2016 Title I grant award that requires each State to ensure that it implements the requirements under ESEA under sections 1111 (g)(1)E and 1112(c)(5)(B) by no later than December 10, 2016,” the letter reads. The sections cited refer to the educational stability requirements including transportation.
Last week, on February 17, Superintendent Torlakson’s office sent a letter to CDE’s Foster Youth Services Program coordinators, reiterating the December 10, 2016, deadline for ESSA compliance.
“That is the day districts were required to have a plan for the provision of foster youth to remain in their school of origin,” the letter signed by Tom Herman, an administrator for the department, reads.
This is in direct contradiction to an e-mail sent by Lisa Guillen, who oversees the CDE’s Foster Youth Services Program, on December 9, 2016, the eve of the Every Student Succeeds Act’s implementation deadline.
“As a point of clarification, there is not a requirement that the plan be finalized by Dec. 10,” Guillen wrote to three members of San Diego County Office of Education’s staff. “However, there is work that is required beginning now to establish the necessary collaborative practices that will lead to a finalized plan in the near future.”
Michelle Lustig, one of the administrators who received the email, said that this erroneous guidance slowed some San Diego school districts’ implementation of Every Student Succeeds’ transportation requirements. Despite this, Lustig said that at least 70 percent of her county’s districts had transportation plans in place. She even described how one elementary school was raising funds to buy a van for a wheelchair-bound foster child.
But there are 58 counties, 1,025 school districts and 10,453 public schools peopled with thousands of school-aged California foster youth, many of whom are still waiting for their schools to coordinate transportation to the school where they can do their best.