Happy Birthday, Assembly Bill 490: Celebrating 10 Years Of Improving Educational Stability For Students In Foster Care

By Leecia Welch

This year marks an important milestone in California's effort to improve educational outcomes for youth in foster care. Ten years ago, California became the first state in the country to provide foster youth with an extensive set of educational rights. Modeled after the federal McKinney-Vento Homeless Assistance Act, California's Assembly Bill 490 was designed to increase school stability for youth in foster care, to ensure that they are placed in mainstream classrooms, to speed up the school enrollment and record transfer processes, and to ensure foster youth receive partial credit for classwork and other grade protections. This article explores the background of AB 490, its evolution over the past decade, and recommendations for future policy improvements.

Educational Outcomes of Youth in Foster Care

Countless reports and articles address the numerous obstacles to academic success faced by youth in foster care.ⁱ Many foster youth struggle in school as a result of repeated trauma, but serious challenges also stem from the fact that foster youth often experience multiple placement changes leading to multiple school transfers. Frequent school changes can result in prolonged absences, placement in inappropriate classes, lost and outdated school records, lost school credits, failure to obtain needed support services – and the list goes on.ⁱⁱ

School instability also takes its toll on foster youth's academic achievement and emotional well-being. Studies have shown that California foster youth attend an average of nine different schools.ⁱⁱⁱ The Institute for Higher Education Policy has estimated that it takes four to six months for a child to recover academically from the disruption of changing schools.^iv In addition, foster youth struggle socially when they are forced to repeatedly make new friends at new schools that they have no idea how long they will attend. This transient feeling may eventually result in youth feeling disconnected from school altogether.

California Legislature Passes AB 490

As early as 1981, the California Legislature declared that, “the instruction, counseling, tutoring, and related services for foster children . . . shall be a state priority.”^v Recognizing the abysmal educational outcomes of youth in foster care, California passed legislation in the 1980s and 1990s aimed at supporting the educational needs of foster youth and studying the strengths and weaknesses of existing policies and procedures.^vi Among California's initiatives was the creation of the Foster Youth Services Program, which was designed to provide academic and social support services to youth in foster care.^vii

Building upon these efforts, in February 2003, then-Assembly Member Darryl Steinberg introduced AB 490. California Youth Connection, Children's Law Center, and Children's Advocacy Institute co-sponsored the bill with the support of a broad coalition of children's advocates from across the State. Explaining the need for a comprehensive set of educational protections Steinberg noted:

While a good education is critical to every child's successful transition into adulthood, it is especially true for children who spend long periods of their childhood in foster care. Research indicates that 83 percent of foster children are held back by the third grade, 75 percent are working below grade level, and over 35 percent are in special education. The key to improving outcomes for foster youth is identifying the specific roadblocks to their educational success and working to remove them.^viii

To address these roadblocks, AB 490 afforded foster youth the following rights^ix:

• School Stability: Foster youth are entitled to stay in their school (called “school of origin”) for the remainder of the school year even if their placement changes.^x Educators, county placing agencies, care providers, advocates, and juvenile courts must work together to ensure stable school placements. If a dispute arises regarding whether staying in the school of origin is in the youth's best interests, the youth has the right to remain in the school of origin pending resolution of the dispute.
• Immediate Enrollment: Foster youth are entitled to immediate enrollment if they have to change schools, even if they are missing academic or medical records normally required for enrollment, or owe fees or materials to a previous school.
• Expedited Record Transfers: Foster youth are entitled to timely transfer of records. The law specified that the placing agency has the responsibility of notifying the school of the child's last day; the new school must then request records within two business days of the child's arrival; and the old school must transfer the records within two business days.
• Credit and grade protections: Foster youth's grades may not be lowered due to absences cased by a change in placement, court hearing, or other court-ordered activity. In addition, schools must provide foster youth (and all students) with credit for full or partial coursework completed at another public school or at a juvenile court school.
• Foster Youth Liaisons: All local education agencies must have a foster youth liaison to ensure proper school placement and enrollment, and to assist with the transfer of grades, credits, and records.
• Academic Stability and Equality: Foster youth are entitled to have access to the same academic resources, services, and extracurricular and enrichment activities that are available to all pupils. They also are entitled to be placed in the least restrictive educational programs.

With strong leadership from Steinberg and CYC's then-policy director, Jennifer Rodriguez, AB 490 received widespread support not just from child advocates, but also from counties, child welfare professionals, juvenile court judges, and court appointed special advocates.

A number of school districts and county offices of education opposed an early version of the bill because it initially required school districts to provide transportation to the school of origin. It was estimated that these transportation costs were “likely less than $5 million,” but it became apparent that the bill would not pass unless they were removed. As with most legislation, compromise was required in order to ensure the necessary votes, but the lack of funding for transportation (and other mandates) has proven to be a thorn in the side of successful implementation of the law, as discussed in more detail below.

NCYL Plays Key Role in Implementation of AB 490

Recognizing that laws like AB 490 must be enforced to be effective, a group of child advocacy organizations, including the National Center for Youth Law (NCYL), came together to spread the word. Advocates from NCYL, California Youth Connection, Children's Law Center of Los Angeles, Youth Law Center, and other organizations developed training materials and fact sheets highlighting the new educational rights and responsibilities laid out in the law. Subsequently, advocates across the state worked to educate school personnel, child welfare workers, probation officers, caregivers, courts, and children's attorneys. Thanks to the Skadden Fellowship Program, NCYL received funding for a full-time staff attorney, Sara Woodward, to focus on implementing AB 490 for two years. To this day, NCYL attorneys continue to conduct trainings, respond to requests for assistance, and develop materials designed to educate stakeholders about AB 490 and the numerous foster youth education laws that have since been passed.

NCYL also has played an important role in the implementation of AB 490 through its work representing Dalton Dyer against the California Interscholastic Federation (CIF). In 2007, Dalton Dyer, who was then a 17-year-old foster youth, transferred high schools due to a change in his foster care placement. The CIF, which governs interscholastic sports statewide, forced Dalton's football team at Placer High School in Auburn to forfeit games it had already won because Dalton had not submitted certain paperwork related to his school transfer – even though non-foster students moving with their families to the school district are not required to complete such paperwork. The forfeited games would have kept Placer High School out of the playoffs.

NCYL took Dalton's case to Alameda County Superior Court, and a judge reinstated the wins of Dalton's team, ruling that CIF bylaws violated state law and the Equal Protection Clause of the California Constitution. The court found unequivocally that the CIF's bylaws violate the right of foster youth “to have fair and equal access to all available services, placement, care, treatment, and benefits.” The Court also ruled that the bylaws violate numerous provisions of the California Education Code (as amended by AB 490) designed “to ensure that foster youth have the same access to educational and extracurricular opportunities as other pupils.” Dyer's compelling “David v. Goliath” story touched a nerve with the public and garnered tremendous media attention. Dyer's brave stance provided an incredible “teachable moment” for the community about the educational challenges faced by foster youth and the real-world significance of AB 490. Following this important victory for foster youth, the California Legislature amended the law to strengthen and clarify the right of foster youth to be immediately eligible for extracurricular activities, including sports, upon a change in placement.

California Expands School of Origin Rights following Federal Law Changes

In 2008, Congress followed California's lead and enacted legislation designed to improve school stability for children in foster care. The education provisions of the Fostering Connections to Success and Increasing Adoption Act ^xi required child welfare agencies to (1) develop a plan to ensure “the educational stability of the child while in foster care”; (2) coordinate with the child's school district to ensure the child remains in the school of origin; (3) ensure the child is immediately enrolled in a new school if staying in the school of origin is not in the child's best interests; and (4) ensure that the child's educational records are provided to the new school. Notably, the Act allowed child welfare agencies to claim federal money (under Title IV-E) for the cost of transportation to a child's school of origin ^xii.

Recognizing that the “school of origin” entitlement identified in federal law was broader than the right articulated by AB 490, California child advocates pressed for an expansion of California law. In 2010, Assembly Bill 1933 modified existing California laws to allow foster youth to remain in their school of origin “for the duration of the jurisdiction of the court.”^xiii Moreover, they were entitled to have the “benefit of matriculating with [their] peers in accordance with established school feeder patterns of school districts.” This change meant that not only could a foster youth stay in the same elementary school for the entire time they were in care (rather than just until the end of the school year), they could also move on to the same middle school and high school as their peers, even if these schools were in different school districts. The definition of “school of origin” was also expanded to include: the school the foster youth attended when he or she was permanently housed; the school in which the youth was last enrolled while in foster care; or the school the youth has attended in the last 15 months and to which the youth is most closely connected.

AB 1933 also sought to improve educational stability for foster youth who were exiting the foster care system, e.g. reunifying with their parents or being adopted. The law permitted a foster youth whose court case terminated to remain in his or her school of origin for the duration of the academic school year. Subsequent legislation passed in 2013 (AB 1568) expanded this entitlement to allow a foster youth in high school whose court case terminates to remain in his or her school of origin throughout high school. ^xiv

Senate Bill 1353, passed at the same time as AB 1933, sought to institute other requirements of the Fostering Connections to Success Act relating to the important role child welfare workers play in ensuring school stability. The law required greater consideration of a foster youth's educational stability when making placement decisions.^xv It required adults involved in making placement and school transfer decisions on behalf of foster youth to make a diligent effort to avoid transferring students during the school year. It also encouraged consideration of the long-term consequences of multiple school transfers during a school year, and required that each placement decision take into account educational stability as well as the youth's opportunity to be educated in the least restrictive educational setting necessary to achieve academic progress.

Ongoing Challenges and Opportunities for Improvement

More Data and Research Needed

There is no question that AB 490 has improved school stability for many California foster youth, but much work remains to be done. A recent study of data from the 2009-2010 school year shows that youth in California foster care continue to change schools at alarming rates.^xvi One-third of foster youth were forced to switch schools at least once during the school year. In addition, close to 10% of foster youth attended three or more schools during the school year.

Soon the California Department of Education will be required to track and report district, county, and state data relating to foster youth's academic achievement, truancy, attendance, suspensions, expulsions, and dropout rates.^xvii This data will provide invaluable documentation of the educational challenges California foster youth continue to face. Advocates are hopeful that with this transparency will come an even greater sense of urgency and focus on how we can work together to improve the educational outcomes of students in foster care.

Currently, very few counties consistently collect data regarding school mobility and school of origin, but this data is crucial to understanding educational outcomes and success.^xviii Counties and districts that track this information in their databases have demonstrated how it can improve practice. For example, San Diego tracks how often youth remain in their schools of origin, and has created a tool to systematically assess best interests and ensure foster youth are able to stay in their school of origin. ^xix Similarly, by tracking school of origin data, Mt. Diablo Unified School District has uncovered various patterns in school mobility to address through collaboration with child welfare.^xx

On-going Challenges Relating to Transportation

From the get-go, lack of transportation has posed a major obstacle to ensuring foster youth can continue in their school of origin.^xxi As discussed above, AB 490 did not include the costs of transportation due to fiscal concerns. Under California law, school districts have discretion to provide transportation to students, and state funding of school transportation has been a contentious issue in California for decades. ^xxii

Following the Federal Fostering Connections Act, in 2011, California began reimbursing foster parents for reasonable travel expenses relating to travel to and from a child's school of origin (including use of public transportation or paying someone else to transport the child).^xxiii While reimbursing foster parents for these travel costs was a huge step forward, many counties report that few caregivers are accessing these funds to keep youth in their school of origin. Barriers include lack of information about the availability of educational travel reimbursements, lack of willingness to drive foster youth to the school of origin, and inability to juggle transportation needs of multiple foster youth.

California has the ability to track the extent to which educational travel reimbursements are being utilized, and should do so in order to determine necessary policy improvements. If statewide data reveal infrequent usage, CDSS and/or counties should take steps to address barriers, including improved training for social workers and caregivers on the importance of school stability and availability of travel reimbursement, enhanced practices to develop more foster care placements in around specific school sites^xxiv, and modifying California law to allow for travel reimbursement to be made directly to school districts to provide transportation. ^xxv

Conclusion

As Senator Pro Tem Darryl Steinberg reflects: “Over ten years ago, I authored AB 490 to acknowledge that the state had a unique responsibility to ensure that foster children had every opportunity to succeed. I am proud to have been part of landmark legislation affirming that our students in foster care deserve increased educational rights. Since then, California's recent education reform has recognized the obligation that children in foster care must be included with all our children to have full access to the benefits of education.”

In the coming years, California will have increasingly robust data on foster youth educational outcomes, and school districts will be held accountable for these outcomes.^xxvi

Advocates, social workers, school officials, and caregivers also have the advantage of a strong legal framework and policies in place to address school instability and to improve the underlying problem of placement instability for foster youth. But data and laws, alone, will not ensure foster youth can participate fully in their schools and thrive academically. California must focus renewed energy on implementation of these groundbreaking laws and fostering stronger partnerships between the child welfare and education communities so that all students in foster care have the educational opportunities they deserve.

Leecia Welch is a Senior Attorney at NCYL, focusing on foster youth education and child welfare litigation.

1. Vanessa X. Barrat, & BethAnn Berliner, The Invisible Achievement Gap, Part 1: Education Outcomes of Students in Foster Care in California's Public Schools (WestEd, San Francisco) 2013, at 2.
2. Fostering Success in Education: National Factsheet on the Educational Outcomes of Children in Foster Care (National Working Group on Foster Care and Education) January 2014, at 2-3; Report to the Governor and the Legislature: Foster Youth Services Program (California Department of Education) October 2012, at 7-10.
3. Kathleen Kelly, The Education Crisis for Children in the California Juvenile Court System, 27 Hastings Const. L.Q. 757, 757-73 (2000); See also Melissa J. Sullivan, Loring Jones, & Sally Mathiesen, School Change, Academic Progress, and Behavior Problems in a Sample of Foster Youth, Children and Youth Services Review, 32, 2010, at 164-170 (finding that foster children reported a mean of 8.26 school transfers over the average of 6.6 years in foster care.)
4. Report to the Governor and the Legislature: Foster Youth Services Program (California Department of Education) October 2012, at 5-7; Thomas R. Wolanin, Higher Education Opportunities for Foster Youth: A Primer for Policy Makers (The Institute for Higher Education Policy) December 2005, at 29.
5. Cal. Educ. Code § 42920.
6. Tom Parish et al. Policies, Procedures and Practices Affecting the Education of Children Residing in Group Homes (American Institutes for Research) March 17, 2003, at ii.
7. Report to the Governor and the Legislature: Foster Youth Services Program (California Department of Education) October 2012, at 10-11.
8. AB 490 Bill Analysis, Hearing Date July 2, 2003 at 7, http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml
9. See Sarah Woodward, Advocates Seek Improvements in Education for Foster Youth, Youth Law News, Oct-Dec 2004.
10. As discussed below, the “school of origin” right has been expanded to allow youth in care to remain in the school of origin for the duration of their time in foster care.
11. Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No 110-351, 122 Stat. 3949.
12. 42 U.S.C. § 675(4)(A). States have flexibility to determine how to classify these school stability transportation costs. States can claim them as either an administrative cost or as part of the foster care maintenance payment. Foster Care & Education Issue Brief, When School Stability Requires Transportation: State Considerations (Legal Center for Foster Care and Education) May 2011, at 9.
13. See Cal. Educ. Code § 48853.5(e); See also New California Laws Enhance Foster Youth Educational Stability, Youth Law News, September 2011.
14. Cal. Educ. Code § 48853.5(e).
15. Cal. Educ. Code § 48850(a); Cal. Welf. & Inst. Code §§ 16010, 16501.1
16. Vanessa X. Barrat, & BethAnn Berliner, The Invisible Achievement Gap, Part 1: Education Outcomes of Students in Foster Care in California's Public Schools (WestEd, San Francisco) 2013, at 17.
17. Cal. Educ. Code § 49085(c). See also California Embraces Comprehensive School Finance Reform and Protects Educational Services for Foster Youth, Youth Law News, April-June 2013 (noting that, in 2013, California became the first state in the country to include foster youth in their education accountability framework).
18. Findings of School Stability Workgroup (California Foster Youth Education Task Force School Stability Workgroup) 2012, at 7.
19. Id.
20. Id.
21. See Report to the Governor and the Legislature: Foster Youth Services Program (Counseling, Student Support and Learning Office, California Department of Education) February 15, 2006, at 17.
22. Cal Educ. Code §§ 41850 et seq.; Arcadia Unified School District v. State Dept. of Educ, 2 Cal. 4^th 251 (1992) (finding that “transportation is not an essential element of school activity”). During fiscal year 2012-13, the California Department of Education distributed $474,077,169 to school districts for home to school and special education related transportation. While this amount may seem high, it is nearly $100,000,000 less than the amount distributed 7 years ago. Due to budget cuts, many districts have discontinued school transportation altogether (other than federally mandated transportation for entitlements such as special education).
23. See All County Letter No. 11-51 from California Department of Social Services at 2 (September 23, 2011).
24. Two promising practices in this regard are San Diego County's “Neighborhood for Kids,” which targets the recruitment of foster families at particular school sites, and Sacramento's School Connect software, which uses technology to take into school district information of foster families in an effort to match children with families near their school of origin.
25. In California, CDSS has classified school stability transportation costs as part of the foster care maintenance payment. See All County Letter No. 11-51 from California Department of Social Services at 2 (September 23, 2011). This classification means that foster parents are entitled to reimbursement for transporting foster youth to the school of origin. There is flexibility for the foster parent to provide transportation, arrange for another adult to provide transportation, have the foster family agency provide transportation (if applicable), or have the youth use public transportation. However, California child welfare agencies do not currently have flexibility to use school stability Title IV-E funding to contract with school districts to provide transportation. Other states, such as Connecticut and Minnesota, have passed laws allowing child welfare to work directly school districts to finance the costs of transportation to keep children in their school of origin. Foster Care & Education Issue Brief, When School Stability Requires Transportation: State Considerations (Legal Center for Foster Care and Education) May 2011, at 12. In 2009, Assembly Bill 1067 (Assembly Member Brownley) attempted to address school stability transportation costs for foster youth by including them in California's home to school transportation funding formula and proposing other systemic improvements. Unfortunately, this bill died before making it out of committee. See AB 1067 History at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml.
26. See California Embraces Comprehensive School Finance Reform and Proteects Educational Services for Foster Youth, Youth Law News, April-June 2013