Analysis: Rhode Island ESSA Case Could Mean an End to Repeated School Transfers for Youth in Foster Care

Her mother deported, her father incarcerated, 6-year-old V. Doe entered Rhode Island’s foster care system in 2005.

By 2017, the girl-turned-teenager had changed residences no fewer than a dozen times as she bounced through foster homes and treatment facilities. All that jostling meant repeated school changes, an experience faced by many foster youth that is known to hurt their academic prospects.

That cycle was about to repeat itself again this past fall, as V. Doe was beginning her senior year of high school. But this time, she had federal law on her side.

The most extensive overhaul of federal education policy in nearly two decades, the Every Student Succeeds Act, includes mandates meant to give students like V. Doe a chance at “educational stability.” So when her district stopped paying her tuition at a school for students with disabilities in September, after yet another change in her foster care address, the state Department of Education ruled the district had violated her rights under ESSA.

That November 21 decision not only required the school district to pay but also ironed out some of the thorniest questions regarding ESSA’s foster care mandates, including transportation.

If the district, North Smithfield, doesn’t appeal by January 20, it will be compelled to pay V. Doe’s costly tuition through the end of the school year. More important, the case becomes legal precedent in Rhode Island, meaning that a dozen or more other districts will have to shoulder similar costs.

Although the V. Doe decision does not hold force of law outside of Rhode Island, it is persuasive and could serve as a template for enforcing ESSA in 10 other states known to be failing at, or clearly struggling with, implementation of the law’s foster youth provisions.

Lisa Guillette, the CEO of Foster Forward, an advocacy group that represents roughly 1,000 Rhode Island foster parents, called the development an “important pivot point” that could affect the lives of foster students like V. Doe across the country.

“Hopefully, other states will take notice and ramp up efforts to enforce ESSA implementation in their jurisdictions,” Guillette said.

‘A tiny, little state’

Research has shown that more than one-third of all foster youth will experience five or more school changes by the time they turn 18, and each change can cost four to six months of academic progress. In California, the chronic absenteeism rate for the state’s roughly 55,000 foster students in the 2016–17 school year was 25 percent, higher than for all other categories of students.

ESSA marked the culmination of at least a decade of consistent advocacy aimed at creating a legal framework to help these students thrive academically.

If the foster care system deems it to be in the students’ best interests to change schools, ESSA requires that they be immediately enrolled in new schools, and that their records be transferred immediately.

If the foster care system deems it in the students’ best interest to stay in the school they were attending before entering foster care, or the school they were attending before a placement change while in care — their so-called school of origin — districts are now required to ensure that these students, like V. Doe, are not disenrolled. ESSA also made it the state education agency’s responsibility to ensure that districts work with child welfare agencies to provide transportation to school.

The deadline for complying with these educational stability mandates was Dec. 10, 2016.

“The biggest struggle is transportation,” said Patricia Hessler, chief of staff of Rhode Island’s child welfare agency. “Remember, we are only talking about a tiny, little state. This shouldn’t be a huge barrier, but it is. DCYF [the state Department of Children, Youth, and Families] doesn’t operate buses, so we have social workers, group home staff, and foster parents driving kids twice a day. It’s a huge resource drain.”

Although the majority of states appear to have fulfilled this requirement, more than one-third of all foster youth in America live in states where implementation of the transportation provision is not happening or is uneven.

In November and December, The Chronicle of Social Change queried all 50 state education departments on whether they had compiled assurances that all the districts under their jurisdiction had created and implemented transportation plans as required by ESSA.

Of the 44 that replied, the Chronicle identified 11 that are struggling to meet ESSA’s transportation requirements.

Illinois, Florida, and Massachusetts, in addition to Rhode Island, all indicated that the mandate to have transportation plans in place has not yet been met.

California’s Department of Education failed to respond to multiple requests; the Chronicle has shown that districts across the state are not fully living up to the transportation requirements.

Responses from Utah, Alaska, Kentucky, Missouri, New York, and Minnesota suggested that while school districts have tried to live up to ESSA, the state agencies there could not definitively confirm that all were doing so.

About 162,000 foster youth, or 37 percent of the nearly 440,000 in foster care nationally, are living in states where compliance is murky at best.

Under the law, the federal Department of Education can restrict Title I funding to districts that fail to comply with the mandates. Title I is the department’s largest grant program, with President Donald Trump’s 2018 budget allotting $14.9 billion to assist low-income students.

Despite the Chronicle’s findings, a communications official said in a statement that the federal Department of Education “has no knowledge that any state agencies are out of compliance with the educational stability provisions.”

In Rhode Island, one girl’s case would serve as an early test of both ESSA’s school of origin provision and the related transportation issue.

One in 162,000

After running away from a group home last March, V. Doe was placed in a 20-bed group home in the small town of North Smithfield. The North Smithfield School Department placed her in a specialized classroom for students with special needs run by a private provider in the town’s high school. “Student V. Doe had several altercations with fellow students at the high school,” according to the November decision.

Accordingly, in May, North Smithfield moved V. Doe to the Bradley School in Providence, which serves children with disabilities and mental health issues. There, it appears, V. Doe started to thrive. She has completed her junior year at Bradley and is set to graduate this spring.

In June, she took part in an Individualized Education Program meeting conducted by North Smithfield. These meetings are required by federal law to ensure students with learning or other disabilities have a plan detailing what services they need.

At that meeting, V. Doe said she would be moving into a new foster home. That placement would ultimately not work out, and DCYF ended up placing her in yet another residential facility in yet another school district.

North Smithfield agreed with DCYF’s determination that despite the change of address, it was in V. Doe’s best interest that she remain at Bradley. But North Smithfield still refused to pay, and the senior was disenrolled.

The school department’s reasoning was simple: She no longer resided in its catchment area, so under Rhode Island law, North Smithfield was off the hook for paying for her costly specialized education.

In response, DCYF filed a petition with the office of the Rhode Island commissioner of education, arguing that the district’s action ran afoul of ESSA.

On September 29, one full month into V. Doe’s senior year, an interim order mandated that she be re-enrolled at Bradley immediately.

‘Making the law as we went along’

At a hearing two weeks before the interim order came down, attorneys arguing the case agreed that ESSA’s focus on foster youth was desperately needed, but its provisions were confusing.

“It’s chaos and unpredictability,” V. Doe’s educational advocate said in sworn testimony. “The kids are suffering, and that’s the irony.”

Said DCYF attorney Benjamin Copple, “Because there wasn’t any precedent to follow, we were making the law as we went along.”

Ultimately, the November 21 decision by the Rhode Island Department of Education clarified some major stumbling blocks in ESSA implementation.

The first has to do with the idea of school of origin. The original definition under ESSA was the school the child attended before entering foster care. Subsequent guidance jointly issued by the federal Departments of Education and Health and Human Services expanded this definition to include the school that a child was attending prior to a placement change while in foster care.

During the hearing, North Smithfield attorneys argued that the school district V. Doe was in when she entered foster care at age 6 — more than a decade earlier — was her district of origin, not North Smithfield.

Hearing officer Anthony Cottone disagreed.

The district’s “overly literal interpretation of ESSA’s school of origin concept would defeat the entire purpose of the Educational Stability Provisions,” Cottone wrote.

This underscored the federal law’s intent that a foster youth’s educational stability should travel with the student.

To emphasize that states are obligated to live up to the letter of law, Cottone cited the U.S. Constitution’s Supremacy Clause, which, he wrote in his opinion, “preempts or invalidates state law that interferes or conflicts with any federal law.” In this case, he meant ESSA trumps Rhode Island’s law tying school payments to students’ addresses.

Finally, Cottone’s opinion, in one paragraph, addressed one of the most controversial clauses in ESSA’s educational stability provisions: which agency had to pay for transportation.

“If transportation is an issue,” Cottone wrote, the local education agency deemed responsible for the child’s education “would be responsible for ensuring transportation using whatever resources are available under relevant state law.”

This is important, as the question of how transportation costs should be shared between the foster care and education systems has been a point of contention in many states struggling with ESSA implementation.

“Seeing cases like this call out what the purpose of ESSA is,” said Maddy Day, director of outreach and training for the Center for Fostering Success at Western Michigan University, who travels the country helping states improve services for foster youth in college, “calling on education to play an active role, and ensuring students [who are] foster youth are receiving the services they need to make it in college.”

Although Day said that V. Doe’s case “should motivate states” to live up to the law, she fears that students in foster care “are at risk of getting lost in the larger implementation of ESSA.”

Meanwhile, V. Doe is still enrolled at Bradley, working through the last semester of her senior year.

Daniel Heimpel is the president of Fostering Media Connections and publisher of The Chronicle of Social Change, a national news outlet that covers issues affecting vulnerable children, youth, and their families.

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