Texas Child Protection Law Bench Book
August 2015 edition
Education
Introduction
Please see the Checklist Section for the Education checklist.
A. Education Data
National studies show that youth in foster care have poor educational outcomes when compared to their peers in the general population. Youth in foster care are more likely to be suspended or expelled, score lower on statewide standardized tests, repeat a grade, and to drop out, and less likely to graduate. For more information on these studies, please see: National Working Group on Foster Care and Education (2014, January), “Fostering Success in Education: National Factsheet on the Educational Outcomes of Children in Foster Care”.[8]
According to data collected by the Texas Education Agency (TEA) Public Education Information Management System (PEIMS) during the 2012-2013 school year, which captured the “leaver” status, the reason why a student left school, only 38.8 percent of Texas youth in foster care left because they graduated, compared to 72.4 percent of the general student population. During the same school year, the leaver status of students in foster care who left school because they dropped out was 28.6 percent, compared to 8.3 percent of the general student population. Youth in foster care in Texas also had lower high school achievement, were more likely to be in special education, and were less likely to be in the gifted and talented program. For further detail, please see Data on Foster Children Attending Texas Public Schools.[9]
B. Unique Challenges for Students in Foster Care
Although many children experience educational challenges, students in foster care face additional hurdles, including multiple residential and school changes, missed school days for visits with parents and siblings, court appearances, or therapeutic or other case-related appointments that are only available during school hours, as well as an often-chaotic educational history prior to entering foster care.
Children and youth who are of school-age and in foster care may also find themselves lost in-between child welfare and education – two systems with overlap, but often inadequate ongoing and effective communication. If Texas judicial, child welfare, and education stakeholders coordinate efforts, especially during school transitions, students in foster care are less likely to experience a damaging loss of records, credits, services, and support systems, which can hinder academic success.
C. School Stability
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 his home or change placements, consider the potential impact on the child’s education and what efforts were made to keep the child in the same school, if possible. |
1. Fostering Connections
Congress passed the most sweeping child welfare law in a decade with the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act). 42 U.S.C. §§ 620-629i; 42 U.S.C. § 653; and 42 U.S.C. § 670 et seq.[10] The 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, if it is in the child’s best interest. 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 to ensure educational stability. Passage of the Fostering Connections Act highlights 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 (LEA) – 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, please see U.S. Departments of Education and Health & Human Serv., Admin on Children (2014) joint letter, available at http://www2.ed.gov/about/inits/ed/foster-care/fostering-connections-letter.doc.
• 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 and that all educational records are provided to the new school. 42 U.S.C. § 675(1)(G)(ii)(II).
• Transportation – Transportation costs, including expenses related to transport to extracurricular activities, may fall under foster care maintenance payments. For further detail, please see U.S. Dep’t Health & Human Serv., Admin. on Children, Youth and Families, CWPM § 8.1B Q27 (2007), available online at www.acf.hhs.gov/cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=36#1803.
In recognition of the need for agency coordination, DFPS and the Health and Human Services Commission (HHSC) 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).
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.
3. School Choice
A student who was enrolled in a primary or secondary public school before the student entered the conservatorship of DFPS and who is placed at a residence outside the attendance area for the school or outside the school district is entitled to continue to attend the school in which the student was enrolled immediately before entering conservatorship until the student successfully completes the highest grade level offered by the school at the time of placement without payment of tuition. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of DFPS for the duration of the student’s enrollment in the school. Tex. Educ. Code § 25.001(g).
If a student who is in the conservatorship of DFPS is enrolled in a primary or secondary public school, other than the school in which the student was enrolled at the time the student was placed in the conservatorship of DFPS, the student is entitled to continue to attend that school without payment of tuition until the student successfully completes the highest grade level offered by the school at the time of enrollment in the school, even if the child’s placement is changed to a residence outside of the attendance area for that school or outside the school district. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of DFPS for the duration of the student’s enrollment in the school. Tex. Educ. Code § 25.001(g-1).
Special Issue: Although Tex. Educ. Code § 25.001(g) and Tex. Educ. Code § 25.001(g-1) allow a child to remain in his or her 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. The presumption is that the child’s caregiver will be responsible for any costs related to the transportation, although some school districts may work with the caregiver to find a solution to the transportation challenge. |
4. McKinney-Vento
A child who is awaiting foster care placement meets the federal McKinney-Vento Homeless Assistance Act definition of homeless and is 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. §§ 11431-11435.[11]
In Texas, eligibility determinations for homeless services under McKinney-Vento are made on a case by case basis. In general, if a child is placed in an emergency shelter or transitional living center, was pushed out of his or her home, or doubled up with others, that child is likely to be eligible for McKinney-Vento services.[12] For further detail, please see the Texas Homeless Education Office Fact Sheet on Foster and Substitute Care.[13]
D. Roles and Responsibilities Related to Education
1. Designation of Education Decision-Maker
Tex. Fam. Code § 263.004 requires DFPS to provide notice to the court and others of the entity or person holding education decision-making authority. Generally, when appointed temporary or permanent managing conservator, DFPS is given the rights and duties of a non-parent managing conservator pursuant to Tex. Fam. Code § 153.371, which includes the right to make decisions regarding the child’s education. Tex. Fam. Code § 153.371(10).
Unless the court order limits the rights and duties of DFPS under Tex. Fam. Code § 153.371(10) to make decisions regarding the child’s education, DFPS must file with the court the name and contact information for each person who has been:
• Designated by DFPS to make educational decisions on behalf of the child; and
• Assigned to serve as the child’s surrogate person in accordance with 20 U.S.C. § 1415(b) and Tex. Educ. Code § 29.001(10), for purposes of decision-making regarding special education services, if applicable. Tex. Fam. Code § 263.004(a).
Not later than the fifth day after the date of an Adversary Hearing held under Tex. Fam. Code § 262.201 or Tex. Fam. Code § 262.205 is concluded, DFPS must file the information required by Tex. Fam. Code § 263.004(a) with the court and provide a copy to the school the child attends. Tex. Fam. Code § 263.004(b).
If a person other than a person identified under Tex. Fam. Code § 263.004(a) is designated to make educational decisions or assigned to serve as a surrogate parent, DFPS shall file the updated information in a permanency progress report filed under Tex. Fam. Code§ 263.303 or Tex. Fam. Code § 263.502. The updated information must be provided to the school the child attends not later than the fifth day after the date of the designation or assignment. Tex. Fam. Code § 263.004(c).
In order to comply with this mandate, DFPS created Form 2085-E Designation of Education Decision-Maker,[14] to be filled out by the caseworker, submitted to the court, and provided to the child’s school and persons entitled to notice of Permanency Hearings.
During the Permanency Hearing Before Final Order, the Court must review the permanency progress report determine whether an education decision-maker for the child has been identified, the child’s education needs and goals have been identified and addressed, and there have been major changes in the child’s school performance or there have been serious disciplinary issues. Tex. Fam. Code § 263.306(a-1)(4)(F).
At the Permanency Hearing After Final Order, the court must determine whether an education decision-maker for the child has been identified, the child’s education needs and goals have been identified and addressed, and there are major changes in the child’s school performance or there have been serious disciplinary events. Tex. Fam. Code § 263.5031(3)(I).
Special Issue: In light of the DFPS duty to notify the court of the name and contact information of the education decision-maker within five days of the designation, if DFPS does not provide Form 2085-E, the court might inquire on the record during the Permanency Hearings Before or After Final Order about the identity of the education decision-maker for the child. |
Upon request of a person providing substitute care for a child who is in the managing conservatorship of DFPS, DFPS shall allow the person to provide the child with an education in the home setting unless:
• The right of DFPS to allow the education of the child in a home setting has been specifically limited by court order;
• A court at a hearing conducted under Tex. Fam. Code Chapter 263 finds, on good cause shown through evidence presented by DFPS in accordance with the applicable provisions in the DFPS CPS Handbook, that education in the home setting is not in the best interest of the child; or
• DFPS determines that federal law requires another school setting. Tex. Fam. Code § 263.0045.
3. Notice of Significant Events
School districts, campuses, and open-enrollment charter schools must provide notice to the child’s educational decision-maker and caseworker regarding events that may significantly impact the education of a child, including:
• Requests or referrals for an evaluation under Section 504, Rehabilitation Act of 1973, 29 U.S.C. § 794, or special education under Tex. Educ. Code § 29.003;
• Admission, review, and dismissal committee meetings;
• Manifestation determination reviews required by Tex. Educ. Code § 37.004(b);
• Any disciplinary actions under Tex. Educ. Code Chapter 37 for which parental notice is required;
• Citations issued for Class C misdemeanor offenses on school property or at school-sponsored activities;
• Reports of restraint and seclusion required by Tex. Educ. Code § 37.0021; and
• Use of corporal punishment as provided by Tex. Educ. Code § 37.0011. Tex. Educ. Code § 25.007(b)(9)(A)-(G).
DFPS must provide notice of significant events, including a major change in school performance or a serious disciplinary event at school not later than the 10th day after the date DFPS becomes aware of a significant event affecting a child in the conservatorship of DFPS to:
• The child’s parent;
• An attorney ad litem appointed under Tex. Fam. Code Chapter 107;
• A guardian ad litem appointed under Tex. Fam. Code Chapter 107;
• A volunteer advocate appointed for the child under Tex. Fam. Code Chapter 107;
• The licensed administrator of the child-placing agency responsible for placing the child or the licensed administrator’s designee;
• A foster parent, prospective adoptive parent, relative of the child providing care to the child, or director of the group home or general residential operation where the child is residing; and
• Any other person determined by the court to have an interest in the child’s welfare. Tex. Fam. Code § 264.018(f).
4. Education-Related Requirements for AALs and GALs
An attorney ad litem appointed to represent a child in the managing conservatorship of the DFPS shall, before each scheduled hearing under Tex. Fam. Code Chapter 263, determine whether the child’s educational needs and goals have been identified and addressed. Tex. Fam. Code § 107.004(d-2).
A guardian ad litem appointed to represent a child in the managing conservatorship of the DFPS shall, before each scheduled hearing under Tex. Fam. Code Chapter 263, determine whether the child’s educational needs and goals have been identified and addressed. Tex. Fam. Code § 107.002(i).
Special Issue: Consider whether to continue the appointment of the attorney and guardian ad litem, especially CASA, on the case to address education issues until the youth permanently leaves care. If the attorney ad litem is dismissed before the youth leaves care, consider whether to identify an education advocate by court order. |
5. Surrogate Parent for Children With Disabilities
The school district must assign an individual to act as a surrogate for the parents for a child with a disability in foster care who is eligible to receive special education services. 20 U.S.C. § 1415(b)(2)(A) and Tex. Educ. Code § 29.001(10). The school district has 30 days to appoint a surrogate parent upon realizing the need. 20 U.S.C. § 1415(b)(2)(B).
If a child in the temporary or permanent conservatorship of DFPS is eligible under Tex. Educ. Code § 29.003 to participate in a school district's special education program, the court may, when necessary to ensure that the educational rights of the child are protected, appoint a surrogate parent who:
• Is willing to serve in that capacity; and
• Meets the requirements of 20 U.S.C. § 1415(b) and Tex. Educ. Code § 29.001(10). Tex. Fam. Code § 263.0025(a).
Under the statewide plan, a surrogate parent is required to:
• Complete a training program that complies with minimum standards established by agency rule;
• Visit the child and the child's school;
• Consult with persons involved in the child's education, including teachers, caseworkers, court-appointed volunteers, guardians ad litem, attorneys ad litem, foster parents, and caretakers;
• Review the child's educational records;
• Attend meetings of the child's admission, review, and dismissal committee;
• Exercise independent judgment in pursuing the child's interests; and
• Exercise the child's due process rights under applicable state and federal law. Tex. Educ. Code § 29.001(10).
In appointing a surrogate parent for a child, the court shall give preferential consideration to a foster parent of the child as required under Tex. Educ. Code § 29.015. Tex. Fam. Code § 263.0025(b).
If the court does not appoint a child's foster parent to serve as the child's surrogate parent, the court must give consideration to a:
• Relative or other designated caregiver as defined by Tex. Fam. Code § 264.751; or
• Court-appointed volunteer advocate who has been appointed to serve as the child's guardian ad litem, as provided by Tex. Fam. Code § 107.031(c). Tex. Fam. Code § 263.0025(c).
An employee of any agency that is involved in the education or care of the child may not be appointed as a surrogate parent for the child including, but not limited to, employees of DFPS, TEA, and a school or school district. 20 U.S.C. § 1415 (b)(2)(A) and Tex. Fam. Code § 263.0025(d).
Special Issue: Consider appointment of a surrogate parent for youth in Residential Treatment Centers who are receiving special education services. |
For more information on special education, see Section G of this chapter, Special Education and Section 504.
E. School Transitions
1. Foster Care Liaison in Each Texas School District and at the Texas Education Agency
Each school district and open enrollment charter school must appoint at least one employee to facilitate the enrollment in and transfer to a public school of a child in the district who is in the conservatorship of the state. Tex. Educ. Code § 33.904(a)(1). Each school district and open-enrollment charter school must also report the liaison’s name and contact information to TEA. Tex. Educ. Code § 33.904(a)(2).
In recognition of the challenges faced by students in substitute care, TEA shall assist the transition of substitute care students from one school to another by designating at least one agency employee to act as a liaison officer regarding educational issues related to students in the conservatorship of DFPS. Tex. Educ. Code § 25.007(b)(13).
|
Special Issue: TEA developed several resources regarding foster care liaisons: • Updated contact information for the district foster care liaisons is now located in the Ask Texas Education Directory (AskTED), available online at: http://mansfield.tea.state.tx.us/TEA.AskTED.Web/Forms/Home.aspx. • If the court cannot locate the district liaison on the AskTED system, please reference TEA AskTED guidance, located online at: http://tea.texas.gov/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=25769817937&libID=25769818040. • Other resources for liaisons, including contact information for Education Service Center Foster Care Champions, can be found at : http://tea.texas.gov/FosterCareStudentSuccess/liaisons/ |
2. Enrollment
If DFPS takes possession of a child under Tex. Fam. Code Chapter 262 during the school year, DFPS shall ensure that the child returns to school not later than the third school day after the date an order is rendered providing for possession of the child by DFPS, unless the child has a physical or mental condition of a temporary and remediable nature that makes the child's attendance infeasible. Tex. Fam. Code § 264.115(a).
A child may be enrolled by any person showing evidence of legal responsibility of the child. Tex. Educ. Code § 25.001(j). A child in foster care may attend a school free of charge in the district where the foster parent resides. Tex. Educ. Code § 25.001(f). A school district shall accept a child for enrollment in a public school without the documentation required by Tex. Educ. Code § 25.002(a) if DFPS has taken possession of the child under Tex. Fam. Code Chapter 262. DFPS must furnish that documentation to the school district not later than the 30th day after the date the child is enrolled in the school. Tex. Educ. Code § 25.002(g).
A child may be provisionally admitted to an elementary or secondary school if the child has begun the required immunizations and if the child continues to receive the necessary immunizations as rapidly as is medically feasible. Tex. Educ. Code § 38.001(e).
Special Issue: In general, DFPS delegates day to day decision-making to the child’s caregiver, including responsibility for school enrollment. Upon enrollment, a caregiver should present DFPS Forms 2085 and 2085E to ensure the school recognizes the caregiver’s legal authority to enroll the child. These documents also serve to notify the school that the child is in foster care. For more information on acceptable forms for school enrollment, please see TEA PEIMS supplemental guidance at: http://tea.texas.gov/FosterCareGuidance.pdf |
3. Records Transfer
TEA shall assist the transition of students in substitute care from one school to another by ensuring that school records for a student in substitute care are transferred to the student's new school not later than the 10th working day after the date the student begins enrollment at the school. Tex. Educ. Code § 25.007(b)(1).
Special Issue: Districts failing to provide the required information within 10 calendar days of a written request by the receiving school district may be reported to the Texas Records Exchange Help Desk: (512) 463-7246 or TREx@tea.texas.gov. |
4. Education Passport
DFPS must develop a paper or electronic education passport for each child to contain educational records of the child, including the names and addresses of educational providers, the child's grade-level performance, and any other important educational information. Tex. Fam. Code § 266.008(a). DFPS shall maintain the passport as part of DFPS records for the child as long as the child remains in foster care. Tex. Fam. Code § 266.008(b). DFPS has a duty to make the education passport available to any person authorized by law to make educational decisions for the child in foster care. Tex. Fam. Code § 266.008(c)(1).
For more information about the education passport, referred to in Texas as the Education Portfolio or "green binder," please see CPS Policy Handbook Section 15400.[15]
5. Confidentiality of Education Records
The federal Family Educational Rights and Privacy Act of 1974 (FERPA) allows for release of student records between school districts without parental consent in compliance with a court order upon enrollment in the receiving school. 42 U.S.C. § 1232g (b)(1).[16]
The Uninterrupted Scholars Act of 2013 amended FERPA to permit caseworkers and other child welfare or tribal organization representatives to access personally identifiable student information without parental consent and allows for disclosure of student records pursuant to a judicial order related to a child welfare proceeding without further notice to the parent. Uninterrupted Scholars Act of 2013, Pub. L. No.112-278.[17]
The Uninterrupted Scholars Act provisions also apply to special education-related records for children ages birth to 21 with disabilities under the Individuals with Disabilities Education Act (IDEA) Parts B and C. U.S. Dep’t of Ed., 20 U.S.C. §§ 1400 et seq.[18]
6. Collection of State-Level Education Data
TEA collects data through PEIMS regarding the foster care status of students. Tex. Educ. Code § 7.029(b-1). In addition, DFPS provides child-level data on a yearly basis to TEA and TEA performs a data match to ascertain, on an aggregate level, how students in foster care are faring educationally.
7. Credit Transfer and Recovery
In recognition of the challenges facing students in foster care, TEA is now required to develop policies and procedures to address:
• Awarding credit, including partial credit if appropriate, for course work, including electives, completed by a student in substitute care while enrolled at another school, Tex. Educ. Code § 25.007(b)(3);
• Allowing a student in substitute care who was previously enrolled in a course required for graduation the opportunity, to the extent practicable, to complete the course, at no cost to the student, before the beginning of the next school year, Tex. Educ. Code § 25.007(b)(10); and
• Ensuring that a student in substitute care who is not likely to receive a high school diploma before the 5th school year following the student’s enrollment in grade 9, as determined by the district, has the student’s course credit accrual and personal graduation plan reviewed. Tex. Educ. Code § 25.007(b)(11).
Credits earned towards state graduation requirements in an accredited school district are transferable and must be accepted by another school district in the state. 19 Tex. Admin. Code § 74.26.
F. Attendance and School Experience
1. School Year
A child who is required to attend school under Tex. Educ. Code § 25.085 shall attend school each school day for the entire period the program of instruction is provided. Tex. Educ. Code § 25.085(a). Unless specifically exempted by Tex. Educ. Code § 25.086, a child who is at least six years of age, or who is younger than six years of age and has previously been enrolled in first grade, and who has not yet reached the child’s 19th birthday shall attend school. Tex. Educ. Code § 25.085(b). On enrollment in prekindergarten or kindergarten, a child shall attend school. Tex. Educ. Code § 25.085(c). Tex. Educ. Code § 25.0811 provides for the first day of instruction and Tex. Educ. Code § 25.081 requires at least 180 days of instruction per school year; other decisions about the calendar and school year are left to the school districts. Tex. Educ. Code § 25.0811 and Tex. Educ. Code § 25.081.
Special issue: When considering the timing of a school move, courts, DFPS, and school staff should be aware of both the sending and receiving local school district calendars. |
2. Excused Absences for Court-Ordered Activities
A school district shall excuse a student from attending school, including travel, if the student is in the conservatorship of DFPS, participating, as determined and documented by DFPS, in an activity:
• Ordered by a court under Tex. Fam. Code Chapter 262 or Tex. Fam. Code Chapter 263, provided that it is not practicable to schedule the participation outside of school hours; or
• Required under a service plan under Tex. Fam. Code Chapter 263, Subchapter B. Tex. Educ. Code § 25.087(b)(1)(F).
A student whose absence is excused under Tex. Educ. Code § 25.087(b) may not be penalized for that absence, shall be counted as if the student attended school for purposes of calculating the average daily attendance of students in the school district, and must be allowed a reasonable time to make up school work missed on those days. Tex. Educ. Code § 25.087(d).
Special Issue: If feasible, judges may consider scheduling court hearings for school-aged children outside of school hours. Additionally, to ensure a child does not incur unnecessary unexcused absences, it is helpful to clarify in the court order which appointments and activities require the child’s presence or involvement. |
3. Truancy
If a student fails to attend school without excuse on 10 or more days or parts of days within a six-month period in the same school year, a school district shall within 10 school days of the student ’s 10th absence refer the student to a truancy court for truant conduct under Tex. Fam. Code § 65.003(a). Tex. Educ. Code § 25.0951(a). Truant conduct may be prosecuted only as a civil case in a truancy court. Tex. Fam. Code § 65.003 (b). However, if a student fails to attend school without excuse as specified by Tex. Educ. Code § 25.0951(a), a school district may file a complaint against the student’s parent in a county, justice, or municipal court for an offense under Tex. Educ. Code § 25.093, if the school district provides evidence of the parent’s criminal negligence. Tex. Educ. Code § 25.0951(b).
A school district shall adopt truancy prevention measures designed to address student conduct related to truancy in the school setting before the student engages in conduct described by Tex. Fam. Code § 65.003(a) and minimize the need for referrals to truancy court for conduct described by Tex. Fam. Code § 65.003(a). Tex. Educ. Code § 25.0915(a). A school district shall offer additional counseling to a student and may not refer the student to truancy court if the school determines that the student’s truancy is the result of being in the state foster program. Tex. Educ. Code § 25.0915 (a-3).
For more information, please see the Texas Judicial Branch website truancy resources.[19]
4. Extracurricular Activities
A child in foster care may attend a school in the district where the foster parent resides free of charge and a durational residence requirement may not be used to prohibit that child from fully participating in any activity sponsored by the school district. Tex. Educ. Code § 25.001(f). The Office of the Attorney General of Texas interpreted this language to mean that the University Interscholastic League cannot apply any durational residency requirement to children placed in foster care, regardless of whether the placement is the child’s first placement or a move from one placement to another.[20]
5. Discipline
If a school district permits the use of corporal punishment as a method of student discipline, the person having lawful control of a student must provide a signed, written statement each school year to prohibit corporal punishment for that student. Tex. Educ. Code § 37.0011(c). It is CPS policy to prohibit the use of corporal punishment for all children in foster care and caregivers are directed to “opt out” of school policy on corporal punishment in writing on an annual basis.[21]
During the 84th Texas Legislature, the Tex. Educ. Code Chapter 37 was amended to require the designation of a person to serve as the campus behavior coordinator. Tex. Educ. Code § 37.0012. In addition to other duties, the campus behavior coordinator shall promptly notify the student’s parent or guardian if the student is placed into in-school or out-of-school suspension, placed in a disciplinary alternative education program, expelled, or placed in a juvenile justice alternative education program or is taken into custody by a law enforcement officer. Tex. Educ. Code § 37.0012(d). A campus behavior coordinator must:
• Promptly contact the parent or guardian by telephone or in person; and
• Make a good faith effort to provide written notice of the disciplinary action to the student, on the day the action is taken, for delivery to the student’s parent or guardian. Tex. Educ. Code § 37.0012(d).
Tex. Educ. Code § 37.0012 also allows for written notice to be mailed or given by the principal or other designee if the parent or guardian is not reached on the first business day. Tex. Educ. Code § 37.0012(e) and Tex. Educ. Code § 37.0012(f).
6. High School Graduation
Beginning with the 2014-2015 school year, the minimum, recommended, and advanced high school programs were replaced with the foundation program. Tex. Educ. Code § 28.025(h). Graduation requirements now include review of a personal graduation plan (PGP) for some junior high or middle school students and all high school students. Tex. Educ. Code § 28.0212 and Tex. Educ. Code § 28.02121. For further information on the graduation programs, please see the TEA Graduation Toolkit.[22]
Special issue: A PGP provides each student with a roadmap for academic progress, graduation, and college and career readiness. A PGP is a helpful tool to keep students in foster care on track for graduation, especially when their progress is disrupted by school changes. |
If a student in the 11th or 12th grade has failed to comply with the end-of-course assessment instrument performance requirements under Tex. Educ. Code § 39.025 for not more than two courses, the school district that the student attends shall establish an individual graduation committee at the end of or after the student’s 11th grade year to determine whether the student may qualify to graduate. Tex. Educ. Code § 28.0258.[23]
If an 11th or 12th grade student in the conservatorship of DFPS transfers to a different school district and is ineligible to graduate from the district to which the student transfers, the district from which the student transferred shall award a diploma at the student’s request, if the student meets the graduation requirements of the district from which the student transferred. Tex. Educ. Code § 28.025(i).
G. Special Education and Section 504
1. The Individuals With Disabilities Education Act (IDEA)
Under IDEA, all children with disabilities between the ages of 3 and 21 are entitled to a free, appropriate public education (FAPE). 20 U.S.C.§ 1412 (a)(1)(A). A child qualifies for special education if he or she has an identified disability and that disability adversely affects the child’s performance in school. 20 U.S.C. §§ 1400, et seq. and Tex. Educ. Code § 29.003.
2. Section 504
Section 504 of the Rehabilitation Act of 1973 (Section 504) is a federal law aimed at protecting individuals from discrimination on the basis of a physical or mental disability that substantially impairs a major life activity.[24] 29 U.S.C. § 794.
Special Issue: Some children may qualify for Section 504 accommodations to “level the playing field” without changing what the child is expected to master. For example, a child with dyslexia may not be eligible for special education services, but might qualify for Section 504 accommodations, such as additional time to complete an exam or preferred seating in the classroom. |
3. Referral and Consent
School districts have a "child find" duty to identify, locate, and evaluate children with disabilities to determine which children are currently receiving needed special education and related services. 20 U.S.C. § 1412(a)(3)(A).
If a parent or legal guardian makes a written request to a school district's director of special education services or to a district administrative employee for a full individual and initial evaluation of a student, the district shall, not later than the 15th school day after the date the district receives the request:
• Provide an opportunity for the parent or legal guardian to give written consent for the evaluation; or
• Refuse to provide the evaluation and provide the parent or legal guardian with notice of procedural safeguards under 20 U.S.C. § 1415(b). Tex. Educ. Code § 29.004(c).
If the rights of a parent have been terminated or subrogated by court order or the school has made reasonable efforts and cannot locate the parent, an initial evaluation may be initiated without parental consent. 20 U.S.C. § 1414(a)(1)(D)(iii).
The school has 45 days to complete a full individual and initial evaluation of the student for special education services. Tex. Educ. Code § 29.004(a)(1).
4. Individualized Education Program (IEP)
Children who receive special education services will have an IEP. 20 U.S.C. § 1414(d). Members of the child’s IEP team, known in Texas as the Admission, Review, and Dismissal (ARD) committee, participate in the formulation and approval of the IEP.[25] Tex. Educ. Code § 29.005.
It is the responsibility of the school district to ensure the ARD Committee includes:
• The parents of a child with a disability;
• Not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
• Not less than one special education teacher, or where appropriate, not less than one special education provider of such child;
• A representative of the local educational agency who:
◦ is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
◦ is knowledgeable about the general education curriculum; and
◦ is knowledgeable about the availability of resources of the local educational agency;
• An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in 20 U.S.C. § 1414(d)(1)(B)(ii) – ( vi);
• At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
• Whenever appropriate, the child with a disability. 20 U.S.C. § 1414(d)(1)(B).
5. Special Education Transitions
A receiving school must accept a referral for special education services made for a student in substitute care by a school previously attended by the student. Tex. Educ. Code § 25.007(b)(8). If there is an existing IEP for the child, the receiving school must provide services comparable to those described in the previous IEP, until it either adopts the previous IEP or develops a new IEP. 20 U.S.C. § 1414(d)(2)(C)(i)(I).
6. Manifestation Determination Review
The right to FAPE includes students who have been suspended or expelled from school. 20 U.S.C.§ 1412(a)(1)(A). If a student with a disability is removed for more than 10 days, members of the ARD committee must conduct a manifestation determination review to determine if:
• The conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
• The conduct in question was the direct result of the local educational agency’s failure to implement the IEP. 20 U.S.C. § 1415(k)(1)(E).
7. Graduation
A child who successfully completes their individualized education program under Tex. Educ. Code § 29.005 is eligible for a high school diploma. Tex. Educ. Code § 28.025(c).
H. Eligibility for Special Programs
1. Prekindergarten
A school district must offer free prekindergarten if it identifies at least 15 eligible children who are at least four years old. Tex. Educ. Code § 29.153(a-1). A child is eligible for prekindergarten, without paying tuition, if the child is or ever has been in the conservatorship of DFPS following an Adversary Hearing held as provided by Tex. Fam. Code § 262.201. Tex. Educ. Code § 29.153(b)(6).
Special Issue: The school district will require a prekindergarten verification letter from DFPS to verify eligibility for children currently or formerly in foster care. |
2. Compensatory, Intensive, or Accelerated Instruction
Students in foster care are considered to be at risk of dropping out of school and are eligible for supplemental education services. Tex. Educ. Code § 29.081(d)(11). A school district shall offer an intensive program of instruction to any student who is not likely to receive a high school diploma before the fifth school year following the student’s enrollment in grade 9, as determined by the district. Tex. Educ. Code § 28.0213(a)(2).
3. Nutrition
Students in foster care are categorically eligible for all U.S. Department of Agriculture child nutrition programs including: the National School Lunch Program /School Breakfast Program, Special Milk Program, Fresh Fruit and Vegetable Program, Summer Food Service Program, and the Child and Adult Care Food Program. 42 U.S.C. § 1758.
Special Issue: Schools use DFPS Form 2085 to verify that a child is in foster care and thus eligible for free school meals. If it is not otherwise addressed in the court reports, a court might ask the caseworker about whether the child’s nutritional needs are being met in both the school and home settings. |
4. Texas Virtual School Network (TxVSN)
Each school district must have a written policy about opportunities to enroll in electronic courses provided by TxVSN. Tex. Educ. Code § 30A.007. Children in foster care are eligible for part or full time enrollment in the TxVSN, regardless of whether the student was enrolled in a public school in this state in the preceding school year. Tex. Educ. Code § 30A.002.
Special Issue: The TxVSN is an online resource offered by state certified teachers that can assist student in foster care with obtaining course credit. On a case by case basis, DFPS will determine whether enrollment in virtual instruction is appropriate for a child in foster care. If the child receives special education services, that determination will be made in consultation with the child’s ARD committee. |
5. Early College
An at risk student, as defined by Tex. Educ. Code § 29.081, can participate in an early college education program that:
• Enables a participating student to combine high school courses and college-level courses during grade levels 9 through 12;
• Allows a participating student to complete high school and, on or before the fifth anniversary of the date of the student's first day of high school, receive a high school diploma and either an associate degree; or at least 60 semester credit hours toward a baccalaureate degree;
• Includes articulation agreements with colleges, universities, and technical schools in this state to provide a participating student access to postsecondary educational and training opportunities at a college, university, or technical school; and
• Provides a participating student flexibility in class scheduling and academic mentoring. Tex. Educ. Code § 29.908.
6. Dual Credit
Each school district shall implement a program under which students may earn the equivalent of at least 12 semester credit hours of college credit in high school. Tex. Educ. Code § 28.009(a).
A program implemented under Tex. Educ. Code § 28.009 must provide a student the opportunity to earn credit for a course or activity, including an apprenticeship or training hours:
• That satisfies a requirement necessary to obtain an industry-recognized credential or certificate or an associate degree and is approved by the Texas Higher Education Coordinating Board (THECB); and
• For which a student may earn credit concurrently toward both the student's high school diploma and postsecondary academic requirements. Tex. Educ. Code § 28.009(a-1).
A school district is not required to pay a student's tuition or other associated costs for taking a course under this section. Tex. Educ. Code § 28.009(a-2).
I. Post-Secondary Opportunities
Special Issue: During hearings involving middle and high school students in foster care, courts may inquire about the youth’s post-secondary education goals. If the youth or caregiver is present at the hearing, a court may encourage options, including vocational and two and four-year higher education opportunities. |
1. Tuition and Fee Waiver
A student is exempt from the payment of tuition and fees, including tuition and fees charged by an institution of higher education for a dual credit course or other course for which a high school student may earn joint high school and college credit, if the student:
• Was in the conservatorship of DFPS on his or her 18th birthday, at the time of high school graduation or receipt of a GED, or while enrolled in a dual credit course for joint high school and college credit; or
• Was in the conservatorship of DFPS on his or her 14th birthday, if the student was also eligible for adoption on or after that day; or
• Left the conservatorship of DFPS through adoption or the award of PMC to a person other than a parent, if it occurred on or after September 1, 2009; and
• Enrolls in an institution of higher education as an undergraduate student or in a dual credit course or other course for which a high school student may earn joint high school and college credit not later than the student's 25th birthday. Tex. Educ. Code § 54.366(a).
Notwithstanding Tex. Educ. Code Ann § 54.366(a)(1), a child who exits the conservatorship of DFPS and is returned to the child’s parent, including a parent whose parental rights were previously terminated, may be exempt from the payment of tuition and fees if DFPS determines that the child is eligible under department rule. The executive commissioner of the Health and Human Services Commission shall by rule develop factors for determining eligibility under Tex. Educ. Code § 54.366 in consultation with DFPS and the THECB. Tex. Educ. Code § 54.366(c).
TEA and the THECB shall develop outreach programs to ensure that students in the conservatorship of DFPS and in grades 9-12 are aware of the availability of the exemption from the payment of tuition and fees provided by this section. Tex. Educ. Code § 54.366(b).
TEA must also develop procedures to ensure that a student in substitute care who is in grade 11 or 12 be provided information regarding tuition and fee exemptions under Tex. Educ. Code § 54.366 for dual-credit or other courses provided by a public institution of higher education for which a high school student may earn joint high school and college credit. Tex. Educ. Code § 25.007(b)(12).
Note, Tex. Educ. Code § 54.2001(g) specifically states the conditional receipt of the exemptions and waivers does not apply to students who receive the exemption in accordance with Tex. Educ. Code § 54.366. Tex. Educ. Code § 54.2001(g)(3).
Special Issue: To encourage postsecondary success, it is important for the court, attorneys ad litem, schools, caseworkers, and others to explain the tuition and fee waiver and other benefits to assist youth with the transition out of foster care. A great resource for youth in care is the DFPS Texas Youth Connection, available online at https://www.dfps.state.tx.us/txyouth/. |
2. Education Training Voucher (ETV) and Other Programs
Under the John H. Chaffee Foster Care Independence Program, eligible youth are entitled to up to $5,000 a year to cover education-related expenses from the federal ETV program. Social Security Act § 477,[26] 42 U.S.C. § 677. For more details about the DFPS Preparation for Adult Living services and other higher education resources, please see DFPS Overview of Higher Education Information/Resources for Current and Former Foster Youth.[27]
3. Liaisons at the THECB and Institutions of Higher Education
Each institution of higher education [as defined by Tex. Educ. Code § 61.003] shall designate at least one employee of the institution to act as a liaison officer for current and incoming students at the institution who were formerly in the conservatorship of DFPS. The liaison officer shall provide to those students information regarding support services and other resources available to the students at the institution and any other relevant information to assist the students. Tex. Educ. Code § 51.9356(b).
The THECB shall designate at least one employee of the board to act as a liaison officer for current and incoming students at institutions of higher education who were formerly in the conservatorship of DFPS. The liaison officer shall assist in coordinating college readiness and student success efforts relating to those students. Tex. Educ. Code § 61.0908.
J. Resources
The Texas Blueprint: Transforming Education Outcomes for Children and Youth in Foster Care
In 2010, the Supreme Court of Texas issued an Order Establishing the Education Committee of the Permanent Judicial Commission for Children, Youth and Families (Children’s Commission). The Order was the result of a Texas Action Plan drafted by a team of child welfare experts and designed to study the educational outcomes of Texas children and youth in foster care. The Education Committee, a high-level group of court, education, and child welfare decision-makers, created a collaborative initiative designed to improve educational outcomes of children and youth in the Texas foster care system. The order resulted in over 100 court, education, and child welfare stakeholders coming together over an 18-month period to listen and learn from each other, discuss and debate the issues, and ultimately develop recommendations to improve educational outcomes of children and youth in foster care. Recommendations included changes in legislation, policy, and practice related to:
• Judicial practices;
• Data and information sharing;
• Multi-disciplinary training;
• School readiness;
• School stability and transitions;
• School experience, supports, and advocacy;
• Post-secondary education; and
• Future collaboration.
The recommendations and commentary may be found in the Education Committee’s final report, The Texas Blueprint: Transforming Education Outcomes for Children and Youth in Foster Care.[28]
Texas Foster Care and Education Summit, February 2013
In February 2013, over 200 court, child welfare, and education leaders met in Austin at Texas’ first Foster Care and Education Summit and Texas took another step in its long-term initiative to improve how children and youth in its foster care system fare in schools. This step represented a new chapter in the initiative to improve education outcomes of students in foster care by bringing together a large group of multi-disciplinary stakeholders to raise awareness of the need to improve these outcomes and to begin establishing connections among the courts, DFPS, and local school districts. The summit was initially conceived as a recommendation in the Texas Blueprint.
The Texas Association of School Boards (TASB) published a comprehensive paper on the connection between child welfare and education law in Texas, entitled Education Issues for Students in Foster Care.[29] In addition, two Power Point presentations from the Foster Care and Education Summit provide additional information regarding education of students in foster care:
• Connecting Child Welfare and Education Law[31]
The Texas Blueprint Implementation Task Force
As envisioned by the Supreme Court of Texas, the Education Committee was to be a short-term effort of less than two years. But, as part of its charge, the Court directed the Education Committee to develop a collaborative model to continue systemic improvement of educational outcomes after the submission of the Texas Blueprint. That collaborative model, the Texas Blueprint Implementation Task Force (Task Force), was created by order of the Supreme Court of Texas in December 2012 to ensure implementation of the Texas Blueprint’s recommendations and suggested strategies. In prioritizing the recommendations, three primary issue areas emerged: Data, Training and Resources, and School Stability. The Task Force formed three workgroups based on these issues, identified chairs, and met from July 2013 through December 2014. Many of the workgroup members participated in the Education Committee, attended the summit and, hailing from diverse and multi-disciplinary backgrounds, brought a wealth of professional expertise to their respective workgroup’s efforts at reform and collaboration.
In February 2015, the Task Force assessed progress and presented recommendations for future collaboration in the Texas Blueprint Implementation Task Force Final Report.[32] Going forward, the Children’s Commission approved the Task Force recommendation to create a standing Foster Care and Education Committee to systematically address the intermediate and long term goals of the Texas Blueprint.
Resource Guide for Foster Care Liaisons in School Districts
TEA, DFPS, and the Children’s Commission collaborated on a resource guide for education professionals that has information of use to courts and others involved with CPS cases entitled Foster Care & Student Success: Texas Systems Working Together to Transform Education Outcomes of Students in Foster Care.[33] In addition, TEA has additional resources that may be found on the Foster Care and Student Success webpage, listed below.
Texas Court Appointed Special Advocates (CASA) Educational Advocacy Toolkit
In 2015, Texas CASA released the first resource in its Fierce Advocate Series, the Educational Advocacy Toolkit.[34] The toolkit was a deliverable of the Task Force Training and Resources Workgroup and resulted from several months of collaboration across education, child welfare, court, and advocate stakeholder groups. The toolkit addresses a variety of education-related issues and includes tips and resources for CASA volunteers.
Judicial Checklists
Asking the Right Questions II: Judicial Checklists to Meet the Educational Needs of Children and Youth in Foster Care. Permanency Planning for Children Department, National Council of Juvenile and Family Court Judges (2008), found at:
http://www.ncjfcj.org/sites/default/files/education%20checklist%202009.pdf.
Foster Youth Education Judicial Checklist. Texas specific one page checklist on education, at: http://texaschildrenscommission.gov/media/32210/Education.pdf.
Websites
American Bar Association Legal Center on Foster Care and Education website: http://www.fostercareandeducation.org/Home.aspx.
Child Protective Services Policy Handbook on Education:
https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_x15000.asp#CPS_15000.
Texas Education Agency (TEA) Foster Care and Student Success website: http://www.tea.state.tx.us/FosterCareStudentSuccess/.
Transforming Education Outcomes for Children and Youth in Texas Foster Care website: http://education.texaschildrenscommission.gov/.