Fall 2005 Human Rights Magazine

By Amy Levine

Consider the plight of foster youth—entering the child welfare system following neglect, abuse, and separation from family; experiencing hardships during care; and lacking a constant adult to aggressively pursue their educational needs—and you start to see why these students need special education services at a high rate and have bleak educational outcomes.

Foster youth are often relocated to different homes several times a year, each time needing a new and appropriate school placement. Their school records are often lost and credits are not always transferred. Youth must begin yet again the arduous task of meeting new friends and teachers. They may even sit out of school for months on end. Such constant change compounds existing mental health issues or educational disabilities.

The lack of an involved “parent” to aggressively pursue their educational needs further stymies progress. Under the Individuals with Disabili-ties Education Act (IDEA), procedural rights to obtaining special education services for students belong to their parents. Without strong parental ad-vocates, delivery of special education services to foster youth is often de-layed, inadequate, or overly restrictive.

Through innovative laws and practices, those involved in the care and education of foster youth can begin to remove the barriers to their educational success. Legislators have be-gun to recognize the importance of parental education rights to success in school. The current IDEA regulations allow foster parents to hold educational rights for a child. However, they can do so only if the birth parents’ educational rights have been limited by juvenile court, the youth is placed in long-term foster care and has an ongoing relationship with the foster parent, and the foster parent is willing to make educational decisions for that youth.

The newly reauthorized IDEA includes foster parents in the definition of “parent.” This expands the pool of people who can hold educational rights for foster youth. If a new foster parent gains educational rights each time a youth moves, however, schools can be easily confused as to who holds those rights at any given time. Furthermore, short-term foster parents may lack the necessary knowledge about the youth in their care to make informed decisions. To avoid possible negative consequences, the U.S. Department of Education should maintain the existing regulatory language, i.e., foster parents hold educational rights in limited circumstances. The department has published proposed regulations, but, as of this writing, they have not been finalized.

Another provision under the amended act gives both juvenile courts and school districts the right to appoint educational surrogates. This dual responsibility ensures that if one agency cannot find a surrogate, the other must. However, unless the regulations designate one entity as having first opportunity to appoint an educational surrogate, confusion may cause inaction. Hopefully, the drafters of the new regulations will give first appointing priority to juvenile courts, as they are able to simultaneously limit parental rights and appoint a surrogate. When the courts are unable to find a surrogate, districts should do so.

Other state laws have begun to address unique educational challenges of foster youth. California recently enacted a law, referred to as AB490, that strives to ensure that educational and placement decisions are based on the best interests of the youth and that all people involved in their care and education work together to maintain stable school placements. It also recognizes the importance of educational rights. If the educational surrogate believes that remaining at the “school of origin”—the school at which the youth started the school year—is in the best interests of the youth, then he or she can remain there throughout that academic year, even if moved to a new residence.

Foster youth have poor educational outcomes. While it is important to determine their causes, it is equally essential to implement new laws and practices that begin to allow these youth to access and obtain a quality education.

Amy Levine is an Equal Justice Works/Morrison & Foerster fellow and a staff attorney at Protection & Advocacy, Inc. Her fellowship focuses on educational advocacy for foster youth.

As published in Human Rights, Fall 2005, Vol. 32, No. 4, p.5