In 2019, there were over 440,000 children in foster care in the United States. Approximately 270,000 of these students were school-aged. Research shows that foster care students receive special education services at much higher rates than the general population. They may also face profound disruption to their education because they often move homes and schools multiple times.
As a result, students in foster care sometimes struggle to keep up with their classmates. When they move, they may not be able to start school immediately because of missing enrollment paperwork. Once enrolled, they might be absent from class more often for court hearings and other obligations related to foster care. Moreover, students in foster care frequently experience trauma, which can create other challenges in school. Consequently, many do not graduate; research suggests 25 percent of students in foster care drop out of high school.
Although education-related litigation directly focused on foster care is sparse, there are myriad legal issues related to this topic. We focus more broadly on laws that provide protections for students in foster care and then offer additional resources that address additional legal concerns.
Prior to 1987, little attention was paid to the educational needs of students in foster care. In 1987, the McKinney-Vento Homeless Assistance (MVA) Act was enacted to address the educational needs of children experiencing homelessness. Although the MVA focuses on homelessness, it is often relied upon when examining the policies related to students in foster care. This law was reauthorized in 2001 as part of the No Child Left Behind Act, at which time the definition of homelessness was changed to include “children awaiting foster care placement.” It was designed to address enrollment, attendance, and student success in school because of concerns related to stability, transportation, and tracking of students.
The MVA stated that students could remain in their “school of origin” rather than having to enroll in a new school with each move. It also required that the school of origin must provide transportation, even if the student moved out of the district. If a student did have to change school districts, the MVA specified that students could enroll and enter school whether or not documents were missing. Finally, the legislation required that every state and local education agency appoint liaisons to implement MVA and track the number and outcomes of students experiencing homelessness, including those in foster care.
In 2016, after the Every Student Succeeds Act (ESSA) was passed, the Obama administration commissioned a task force to examine the disproportionate educational outcomes of students who have historically experienced barriers in school. Based on the task force’s reports, it was evident that the needs of children in foster care were not being met under the MVA. For example, the MVA does not define “awaiting foster care placement;” therefore, each state had different definitions for the phrase. For example, Connecticut included students in placements lasting less than 30 days, while Delaware included any child placed in out-of-home care. This lack of consistent definition also affected a student in foster care’s ability to receive transportation, enroll without missing documentation, or be consistently tracked.
ESSA removed “awaiting foster care placement” from the MVA and outlined specific provisions for children in foster care. Those provisions are similar to the MVA, but with a few exceptions. ESSA allows students to remain in their school of origin when placement changes, but only if it is in the “best interest of the child” as determined by the state child welfare agency. Schools must still immediately enroll students who do change schools and provide transportation, even if the new placement is out of the student’s district. As in the MVA, state and local liaisons are to be identified to track the enrollment and outcomes of students in foster care. This person must not be the same person as the MVA liaisons.
Recommendations for Principals
ESSA and MVA have made important changes related to the educational outcomes for children in foster care. If followed correctly, students in foster care will experience fewer school disruptions. However, there are still some gaps in the law. School administrators have the ability to address some of these gaps by considering the following:
Gap 1: Address students’ inability to keep up with their peers. Even with more school stability, students in foster care often miss more school because of child welfare obligations. It is important to have an accurate assessment of each student’s current academic abilities and an understanding of where they may be falling behind. They may require extra tutoring or in-class assistance. Students in high school may need to recover credits. Schools should have a plan in place specifically for students in foster care to help them make up ground and graduate.
Gap 2: Address trauma suffered by children in foster care. Every child placed in care has suffered at least one traumatic event—the removal from their family—and has likely suffered other events as well. School staff needs specific professional development in trauma-informed practices, especially as related to school discipline. Punishments like removal from class or isolation can actually trigger the student’s “fight or flight” reaction, pushing them into an emotional state where they cannot “learn their lesson.” Instead, the students just relive their trauma. Schools with in-house social workers, whether hired by the school system or by partnering with outside mental health agencies, have greater success in working with children of trauma.
Gap 3: Address transition plans. Once students age out of foster care, they sometimes lose all of their supports. Extra time needs to be spent teaching them basic life skills, such as workplace skills and how to find and use resources for physical and mental health. There are also several scholarships and grants available for former foster students to go to college or receive career training, but they may not know how to find or access them.
Sharon Dunlevy recently completed the Graduate Education Law Certificate at Indiana University in Bloomington, IN, and is a foster care educational advocate and trainer at Foster Care Training Today. Suzanne E. Eckes is a professor at Indiana University and is also a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.
6 Quick Statistics on the Current State of Foster Care. (2019). Retrieved from: www.ifoster.org/6-quick-statistics-on-the-current-state-of-foster-care.
Clemens, E. V., Klopfenstein, K., Lalonde, T. L., & Tis, M. (2018). The effects of placement and school stability on academic growth trajectories of students in foster care. Children and Youth Services Review, 87, 86–94.
Julianelle, P. (2008). The McKinney-Vento Act and children and youth awaiting foster care placement: Strategies for improving educational outcomes through school stability. National Association for the Education of Homeless Children and Youth.
U.S. Department of Education, U.S. Department of Health and Human Services (DOE/DHHS). (2016). Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care. Retrieved from www.acf.hhs.gov/sites/default/files/cb/ed_hhs_foster_care_guidance.pdf.
White House. (2016). My Brother’s Keeper 2016 progress report. Retrieved from https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/images/MBK-2016-Progress-Report.pdf.