The Every Student Succeeds Act gave school systems across the country until December 2016 to transport foster youth to school. Nine months later, implementation is wanting.
For the roughly 270,000 school-aged children living in America’s foster care system, educational success can be elusive. Having suffered the trauma of abuse and neglect, coupled with the uncertainty of foster care, these youngsters have substantially worse educational outcomes than their peers.
For example, in California 58 percent of foster youth will graduate high school as compared with 79 percent of students with low socioeconomic status and 84 percent of students overall.
Frequent school moves are a key factor in these low graduation rates and disproportionately poor academic outcomes. Research has shown that more than one-third of all foster youth will experience five or more school moves by the time they turn 18. Each move can cost four to six months of academic progress.
In 2015, Congress took its most significant step ever towards addressing this problem. The Every Student Succeeds Act (ESSA), which overhauled federal education policy, included a mandate ordering school districts across the country to make sure foster youth have transportation to their so-called “school of origin,” the school they were attending when they entered the system.
Beyond setting up the mandate, the statute also clearly stated that school districts had one year – until December 2016 – to get this done.
The Imprint recently queried education officials in 16 states and the District of Columbia to determine whether or not they were living up to ESSA’s foster care mandates. While a handful of states have complied, others have failed or struggle to do so. This does not take into account the more than 30 states that we are yet to have information on.
We found some examples of states working hard to live up to ESSA’s mandates. But we also found that there are likely thousands of foster youth who are still subject to unlawful school moves that narrow their chances at educational success.
Despite being made aware of this inconsistency in implementation, there is little to suggest that the agency with the power to force compliance, the federal Department of Education (ED), is doing much about it.
In 2008, the landmark Fostering Connections to Success and Increasing Adoptions Act required state child welfare agencies to keep foster youth at the school they were attending at the time of their removal, unless it was in their best interest to be in another school.
There was an obvious problem with enforcing this provision. State and local child welfare systems do not have school buses.
School systems are ultimately responsible for transporting students – foster youth or otherwise – to and from school. School districts have their own bureaucracies, with their own rules, and are not beholden to federal child welfare policy.
Sen. Al Franken (D-Minn.) led the effort to make the academic achievement of foster students the responsibility of school districts in 2015, during the rewrite of the No Child Left Behind Act. The final product, ESSA, included the transportation mandate for foster youth.
But even ESSA was ambiguous on the key question of money, compounding issues with compliance. Instead of specifying how local education agencies and their counterparts in child welfare should pay for transporting foster kids to their schools of origin, ESSA simply instructs school districts to come up with plans to share the cost. This sets up a negotiation process between public agencies about money, never an expedient affair.
In January, The Imprint revealed California’s failure to implement ESSA’s transportation mandates. This prompted key members of Congress, notably Sen. Franken, to call on ED to enforce the law.
For a lot of foster kids, school is where they feel safe, secure, and are able to find certainty,” Sen. Franken said in an email statement. “The Education Department needs to make sure that states are abiding by the law and providing foster students with these opportunities.”
But new evidence suggests that compliance issues extend past the Golden State.
Complying Fully, Partially or Not at All
Since ESSA became the law of the land, a new president has assumed office. By the end of March, Congress had passed a bill, which President Donald Trump signed, rolling back ESSA-related regulations issued by the Obama administration. But the mandates on foster youth were written into the law itself, so school districts and ultimately states are still on the hook for getting it done.
In April of this year, 16 states and the District of Columbia sent letters to the ED describing their plans to comply with the education law. These plans will need to be accompanied by assurances that the school districts in those states are living up to all aspects of ESSA – including those requiring foster youth transportation.
The Imprint reached out to each of these jurisdictions to see if they were now complying with the law.
Of the 17 jurisdictions that reported to ED, officials from seven – Oregon, Nevada, Delaware, Michigan, Maine, Tennessee and Vermont – said that they had complied with the law’s 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.”
All seven states affirmed that they are now transporting foster youth per the ESSA mandate.
A good example is Oregon. Linda Brown, an education specialist with the Oregon Department of Education, said that the state took on implementation from two angles. First her agency entered into an agreement with the state’s Department of Human Services, which transferred $2 million to pay for foster youth transportation. Then, this summer, the legislature modified state law directing the juvenile dependency court to make “school of origin” the default choice for foster youth.
“ESSA pushed us to be more collaborative on the state level,” Brown said.
Officials in two states – Colorado and Illinois – either confirmed that their state had not complied with ESSA or submitted a response suggesting it had not.
Colorado, which has devolved much of its power to counties and school districts, has struggled to ensure full implementation of the law. While Kristen Myers, the foster care education coordinator with the state Department of Education, pointed to a robust MOU developed by her counterpart at the Department of Human Services, getting each and every of the state’s 178 school districts and 64 counties to comply has been a challenge.
We, as multiple state agencies, are doing everything humanly possible to get these plans going right now,” Myers said.
Responses from the remaining eight jurisdictions – North Dakota, Connecticut, Louisiana, New Jersey, Massachusetts, New Mexico, D.C. and Arizona – were insufficient to determine if they were complying fully, partially or not at all. New Mexico’s Public Education Department never responded to a request for information, and a spokesperson for D.C.’s superintendent of education could not definitively say that school districts there had complied.
A spokesman for Arizona’s Department of Education was unable to ensure that all the state’s school districts had come up with and implemented transportation plans. But he pointed out that the department has offered extensive guidance and technical assistance to local school systems to ensure compliance.
“Arizona utilizes a computer-tracking program and an internal system of checks and balances to ensure all Arizona foster care students are receiving the transportation mandated by ESSA,” said spokesman Stefan Swiat in an email.
Not Much of a ‘Hammer’
Experts and history suggest ED is unlikely to do much to enforce the law.
“The Revised State Template for the Consolidated State Plan” issued by the department in March is a good example.
When it comes to the assurances that state and local education agencies must submit to prove that they are living up to ESSA, the department both threatens significant penalties, while simultaneously neglecting to specify when those assurances need to be submitted.
“In order to receive fiscal year (FY) 2017 ESEA funds on July 1, 2017… each SEA [State Education Agency] must also submit a comprehensive set of assurances to the Department at a date and time established by the Secretary,” the template reads. “In the near future, the Department will publish an information collection request that details these assurances.”
This means that all federal education funding streams that flow to state and local school systems could be in jeopardy.
But when it comes to enforcement, Dale Chu with the Collaborative for Student Success said, “there really isn’t a hammer.” Instead, Chu, who has reviewed all the state plans, suggested that the education secretary, Betsy DeVos, could use the “bully pulpit” to cajole state and local education agencies into action.
Philip Lovell, with the Alliance for Excellent Education, which is monitoring ESSA compliance, pointed out the importance of supporting the educational achievement of foster youth.
“The federal government has a disproportionate role in the lives of these kids,” Lovell said. “Unless there is oversight, these provisions won’t be implemented, and not fully delivering for these kids is unacceptable.”
He added that ED could be doing things like monitoring compliance more closely, offering guidance to states or issuing letters reminding state educational agencies of their responsibilities regarding the education of foster youth.
Sen. Chuck Grassley (R-Iowa), who worked to get the foster care mandates included in ESSA, agreed, according to a spokesman.
“Sen. Grassley encourages dialogue with states to make sure the law is implemented as Congress intended,” said Michael Zona, Grassley’s press secretary.
While the Department of Education, through a spokesperson, said it would monitor the situation it gave no indication of what that means.
“State implementation of the foster care provisions is something that we will monitor as part of implementation of the statute,” an ED spokesperson said in an email. “But we do not have an update at this point while state plans are in the review process.”
The next round of “ESSA State Plans” are due in September, around the same time when foster youth across the country will – or will not – be getting to know their school bus drivers.