Special Issue: School is often a source of stability as well as a place for academic and social development of children and youth in foster care. If a child must be removed from their home or change placements, consider the potential impact on the child's education and what efforts can be made to keep the child in the same school, if possible.
1. Fostering Connections
The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) includes important provisions regarding the educational stability of youth in foster care, calling on child welfare agencies to keep the child in the same school any time the child's placement changes, unless it is not in the child's best interest.[176] 42 U.S.C. § 675. If the child cannot remain in the same school, the child must be promptly enrolled in a new school. The legislation also increases the amount of federal funding that may be used to cover education-related transportation costs and requires child welfare agencies to work with Local Education Agencies (LEAs)[177] to ensure educational stability. Provisions in the Fostering Connections Act highlight the importance of improving educational outcomes of children and youth in foster care across the nation.
a. Education Stability Provisions of the Fostering Connections Act
• Proximity to school – Each placement decision for a child in foster care must take into account the appropriateness of the child's current educational setting and the proximity to the school in which the child is enrolled. 42 U.S.C. § 675(1)(G)(i).
• Coordinate with local education agencies – The child welfare agency must coordinate with LEAs to ensure that the child can remain in the school where the child is enrolled at the time of each placement. 42 U.S.C. § 675(1)(G)(ii)(I). For further detail, see U.S. Departments of Education and Health & Human Serv., Admin. for Children & Families (2014).[178]
• Immediate enrollment and timely transfer of records – Alternatively, if remaining in that school is not in the child's best interests, the agencies must ensure that the child is immediately enrolled in the new school and that all educational records are provided to the new school. 42 U.S.C. § 675(1)(G)(ii)(II).
• Transportation – Foster care maintenance payments may cover reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. 42 U.S.C. § 675(4)(A).
2. Educational Stability Plan
To meet the requirements of the Fostering Connections Act regarding education stability, DFPS must develop, in accordance with 42 U.S.C. § 675, a plan to ensure the educational stability for children in foster care. Tex. Fam. Code § 264.1072.
In recognition of the need for agency coordination, DFPS must collaborate with TEA to develop policies and procedures to ensure that the needs of foster children are met in every school district. Tex. Fam. Code § 266.008(d).
3. Every Student Succeeds Act
In December 2015, the most recent reauthorization of the Elementary and Secondary Education Act, known as the Every Student Succeeds Act (ESSA), became law.[179] 20 U.S.C. § 6301 et seq. ESSA made substantial changes to the education system, including giving more flexibility to states to determine student performance measures. ESSA also mirrors in the education law many of the provisions affecting students in foster care included in the Fostering Connections Act.
a. Education Stability Provisions of the Every Student Succeeds Act
• Best interest determination – A child in foster care is entitled to enroll or remain in their school of origin unless a determination is made that it is not in the child's best interest to attend the school of origin. The decision must be based on all factors relating to the child's best interest, including consideration of the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement. 20 U.S.C. § 6311(g)(1)(E)(i). The school of origin is the school in which a child is enrolled at the time of placement in foster care. If a child's foster care placement changes, the school of origin is then considered the school in which the child is enrolled at the time of the placement change. For further detail, see ESSA Foster Care Preliminary Implementation Q&A (2017).[180]
• Streamlined transitions – When a determination is made that it is not in the child's best interest to remain in the school of origin, the child is immediately enrolled in a new school, even if the child is unable to produce records normally required for enrollment. 20 U.S.C. § 6311(g)(1)(E)(ii). The enrolling school must immediately contact the school last attended by the child to obtain relevant academic and other records. 20 U.S.C. § 6311(g)(1)(E)(iii).
• Liaisons at the state and local education agencies – ESSA requires designation of a state point of contact to coordinate with child welfare agencies. 20 U.S.C. § 6311(g)(1)(E)(iv). LEAs must also designate a point of contact upon written request. 20 U.S.C. § 6312(c)(5)(A).
• Transportation – LEAs must ensure that children in foster care needing transportation to the school of origin will promptly receive transportation in a cost-effective manner and in accordance with 42 U.S.C. 675(4)(A). LEAs must also ensure that, if there are additional costs incurred in providing transportation to maintain children in foster care in their schools of origin, the local educational agency will provide transportation to the school of origin if:
◦ the local child welfare agency agrees to reimburse the local educational agency for the cost of such transportation;
◦ the LEA agrees to pay for the cost of such transportation; or
◦ the LEA and the local child welfare agency agree to share the cost of such transportation. 20 U.S.C. § 6312(c)(5)(B).
4. School Placement – Texas Law
A student is entitled to remain in the school in which they were enrolled at the time when they entered the conservatorship of DFPS or at the time of any subsequent placement change, when placed at a residence outside the attendance area of the school. A student is entitled to attend school without payment of tuition until they complete the highest grade offered at the school at the time of their enrollment, even if the student leaves DFPS conservatorship. Tex. Educ. Code § 25.001(g) and (g-1).
Special Issue: Although Tex. Educ. Code § 25.001(g) and (g-1) allow a child to remain in their school at the time of placement into foster care, it does not address related transportation issues, including costs of transportation and the person responsible for providing it. Transportation plans required under ESSA may create opportunities for some school districts to work with the caregiver to find a solution to the transportation challenge.
5. McKinney-Vento Homeless Assistance Act
Previously, a child who is “awaiting foster care placement” met the federal McKinney-Vento Homeless Assistance Act (“McKinney-Vento”) definition of homeless and the child was entitled to attend the school that the child attended when permanently housed or the school in which the child was last enrolled, with transportation and other services provided by the district. 42 U.S.C. § 11431 et seq.[181] ESSA amended McKinney-Vento and effective December 10, 2016, the “awaiting foster care placement” was removed from the definition of homelessness but continues to include children and youth in certain situations. Pub. L. No. 114–95. For more information on this change, see guidance from the Department of Education, Education for Homeless Children and Youths Program Non-Regulatory Guidance.[182] Children without placement, sometimes referred to as children in “child watch” or “CWOP”[183] are in a living situation that may temporarily meet the McKinney-Vento definition of homelessness. In these scenarios, students in foster care may be staying in offices, churches, dorms, or hotels/motels under the supervision of DFPS on a temporary basis while DFPS is in the process of identifying an appropriate setting where the child can live. Additionally, there are scenarios when a student in DFPS managing conservatorship returns to live with their biological family in a living situation that may be McKinney-Vento eligible.