school he or she is currently enrolled in, then the state and local child welfare agencies are also
required to coordinate with state and local education agencies to provide transportation to that
school. 47 The goal of the FCA is to achieve stability and continuity for foster youth who have
experienced trauma, are newly placed out of their home environment, and regularly experience
several placement changes that can include enrollment in several schools. 48 This very vulnerable
population of children often suffers academically, experiencing higher grade retention and dropout
rates due to these circumstances. 49 The FCA attempts to improve these dire educational outcomes
for our most marginalized youth.
While the FCA takes great strides toward achieving educational stability for foster youth,
it has often been interpreted as one-sided, requiring child welfare agencies to do the heavy lifting
in collaborating with the state and local education agencies to comply with the Act. 50 Some
critiques of the FCA include, the difficulty resolving differences of opinion between the child
welfare agency and the state or local education agency concerning which school placement is in
the best interest of the child. 51 Also, issues arise when deciding which factors should be considered
priority when determining the best interest of the child in regards to the school placement. 52
Further, determining which agency is responsible for arranging and paying for transportation to a
school that is outside of the child’s neighborhood zoned school to maintain stability is often a
dispute under the FCA. 53 As a result, the recently enacted ESSA attempts to fill in these gaps and
provide further direction to the states on how to ensure educational stability for foster youth. 54
On December 10, 2015, Congress passed the Every Student Succeeds Act, which
effectively reauthorizes the Elementary and Secondary Education Act of 1965 (“ESEA”), 55 and
amends the ESEA to include provisions relating specifically to foster youth and educational
success in Title I. 56 This change is extremely significant, as it is the first amendment to the ESEA
since the No Child Left Behind Act of 2002.57 First, ESSA amendments to the ESEA create a
requirement for state education agencies to collaborate with state child welfare agencies to ensure
educational stability as already set forth in the Fostering Connections Act. 58 This provision
clarifies that the responsibility rests with both state education agencies and state child welfare
agencies to develop and implement plans to allow foster children to remain in their current school
48 GUIDANCE, supra note 27, at 3-4.
50 Id. at 5; see generally LEGAL CTR. FOR FOSTER CARE & EDUC., STATE AND FEDERAL IMPLEMENTATION OF THE
EDUCATION PROVISIONS OF THE FOSTERING CONNECTIONS ACT: PROGRESS AND CHALLENGES (2010) [hereinafter
PROGRESS AND CHALLENGES]; see also John B. King, Sec'y, U.S. Dep’t of Educ. and Sylvia M. Burwell, Sec’y, U.S.
Dep’t of Heath & Hum. Serv., Dear Colleague Letter to Chief State School Officers and Child Welfare Directors (June
23, 2016) [hereinafter Dear Colleague Letter].
51 See generally PROGRESS AND CHALLENGES supra note 50; Dear Colleague Letter, supra note 50.
52 PROGRESS AND CHALLENGES supra note 50.
54 PROGRESS AND CHALLENGES, supra note 50.
55 See generally Elementary and Secondary Education Act, Pub. L. No. 89-10, 79 Stat. 27 (1965).
56 Every Student Succeeds Act, Pub. L. No. 114-95, § 9105(b), 129 Stat. 1802 (2015). ESSA took effect December
10, 2016 and includes a timeline for implementation based upon whether or not the state statutes were covered based
upon the respective states’ definition of homeless youth.
57 See Laws & Guidance, Elementary and Secondary Education, Every Student Succeeds Act (ESSA), U.S. DEP’T of