Why is it so hard to get our most vulnerable children to school? Transportation requirements for school districts in the Every Student Succeeds Act.

By: Maureen Hanlon[1]

WHY IS IT SO HARD TO GET OUR MOST VULNERABLE CHILDREN TO SCHOOL? TRANSPORTATION REQUIREMENTS FOR SCHOOL DISTRICTS IN THE EVERY STUDENT SUCCEEDS ACT.

In 2015, President Obama signed the Every Student Succeeds Act (ESSA), replacing the often-maligned No Child Left Behind Act.[2] ESSA provides federal funding and federal accountability for primary and secondary education providers. The legislation also contains a reauthorization of the McKinney-Vento Homeless Assistance Act, the seminal federal legislation requiring school districts to provide educational access for youth experiencing homelessness.[3] ESSA places emphasis on the power of federal legislation to shorten achievement gaps by establishing high standards and accountability for educational services provided to vulnerable youth. One question the legislation attempts to improve seems surprisingly basic at the outset – what needs to be done to make sure those vulnerable students are transported to school?

What is the problem?

Both students experiencing homelessness and students in foster care have much lower outcomes on educational tests, high school graduation, and post-secondary enrollment despite previous statutory efforts at protection.[4] One major reason is that, oftentimes, at-risk children have to switch from school to school, losing credits and relationships with peers and adults.[5] Donna Cash, the state coordinator for McKinney Vento and the former state coordinator for Fostering Connections, says that when she started the job she met with students who were formerly in foster care, and that one girl shared that she had been to seven different schools in just her senior year – “It was a miracle that girl was able to advocate for herself, because most adults wouldn’t have able to keep track of her classes and credits.”[6] ESSA re-emphasizes and adds protections to assist with this, such as requirements for districts to enroll homeless students immediately (even if the students don’t have past documentation or vaccinations), a new requirement that schools report specifically on metrics like graduation rates for students in foster care and students experiencing homelessness, and protections for children’s right to remain in their school of origin, which necessarily involves transportation.[7]

To understand this problem of transportation, we need to look at some numbers. Ms. Cash emphasizes that what districts need to look at is the definition of a McKinney Vento student – “any child that lacks a fixed, regular, and adequate night-time residence.”[8] She says, “[i]f a child is staying somewhere where they could get kicked out at any time, even if they are staying with aunts or uncles or grandmother, that isn’t fixed.  Fixed and regular means they need to be able to know they are allowed to go there at anytime. And adequate means that if you are staying somewhere like a shelter, it might be meeting your physical shelter needs, but it isn’t meeting your emotional needs.”[9] Nationally, public schools identified 1.3 million McKinney-Vento students in the 2013-2014 year, with almost 30% of all extremely poor school-aged children and youth experience homelessness.[10] In addition to students identified as homeless, a recent statistic in Missouri shows 11,818 students were in foster care, with again a disproportionate number coming from low-income areas.[11] For an area like St. Louis, with nationally infamous rates of racial and social-economic segregation, that means a few districts are taxed with a huge amount of financial resources, not to mention staff time and coordination, in order to provide transportation to school.

The challenges with transportation don’t stop just with sheer numbers. In St. Louis, many municipalities and the corresponding patchwork of school districts make it feasible for a student to be removed from her home by a St. Louis County Children’s Division worker or evicted by her landlord, moved just a few miles away, and then technically be residing in the geographic area of a different school district. Most districts in the St. Louis region rely on cabs to transport children, which carries a hefty price tag from arranging cab rides twice a day for hundreds of children. Even if money was no issue, there is no guarantee that there will be enough cabs for the number of children that need it. Additionally, cab companies in Missouri follow an “8 or 80 rule.” This rule means cab companies will not transport children under 8 years old or under 80 pounds. So if a child who is under 8 years old is removed from his home and put into a foster home, he may be also cut off from getting back to the school where he has teachers or friends or counselors or any support, adding to the overall trauma he is experiencing. Further, DESE has a public position against school districts using bus tickets to support students getting to school based on a 1957 Missouri Attorney General’s guidance to a school district where the Attorney General says that any vehicle used by the school district needs to follow the same standards as given to yellow school buses (which is laid out in RS Mo § 304.060).[12] Even without that guidance, Ms. Cash says the state would have concerns anyway with the use of bus passes: “On public transportation we have no idea who is driving the city buses, who is riding on them, and depending on the street no way to know how long the student needs to walk… Is it a few blocks? Is it right across the street? We don’t want kids to slip through the cracks.”[13]

No one is, in theory, against at-risk kids going to school. But in practice, there has been a real reluctance to provide families with transportation services that cost such large amounts of money and time.  This has been an incredibly overlooked piece of the dialogue around school funding on the state level.[14]  However, ESSA had to balance this very real concern of Districts with the fact that at-risk students continue to switch schools, over and over again, and continuing to graduate at low rates and with poor educational outcomes. [15]

ESSA and district requirements for student transportation

Under No Child Left Behind, Districts were required to provide transportation for any McKinney Vento student, whether residing in or out of the district borders. However, if a McKinney-Vento student found permanent housing, they were then ineligible for transportation services. As of October 1st, 2016, school districts are required to transport for the remainder of the school year no matter if the student regains housing.[16] Districts now also must provide transportation for students in pre-K, even if their pre-K or Head Start programs don’t usually provide transportation. These are both big additions for districts.[17]

Even more controversial are the new regulations surrounding students in foster care. ESSA is the first formal federal acknowledgement that districts have some role in providing transportation to students in foster care. First, each district now must collaborate with the state child welfare agency to develop and implement some written procedures regarding who is responsible for arranging it or funding transportation.[18] Second, the language of ESSA says that after the procedures are written, districts and child welfare agencies must,

ensure that, if there are additional costs incurred in providing transportation to maintain children in foster care in their schools of origin, the local educational agency will provide transportation to the school of origin if:

(I) the local child welfare agency agrees to reimburse the local educational agency for the cost of such transportation;

(II) the local educational agency agrees to pay for the cost of such transportation; or

(III) the local educational agency and the local child welfare agency agree to share the cost of such transportation….[19]

Ideally, Ms. Cash says, “when a foster care student is placed out of district, the child welfare agency, foster parent, and school all sit down and have an in-depth conversation and really talk about how long the child will likely be in care, whether it is in the best interest to be near their parent in cases of abuse, whether the new school district is a better fit, whether the student is close to the end of a year.” Ideally, this would be a holistic conversation where all needs are balanced. But in practice, essentially ESSA is asking each District and the state child welfare agency go in a room in each situation of a child in foster care out of district boundaries and work out who will pay an extra cost – which can reasonably be anticipated to get thorny. This is complicated by the fact that if the team can’t agree on whether the child should even remain at that school to begin with, non-regulatory guidance from the Department of Education states that the child welfare agency has final decision-making power over whether the child can stay there.[20]

Even more controversial than that is a proposed rule that is currently in the comment-making process.[21] In §299.13(c)(1)(ii), the Department of Education proposed the following regulation to the Title I state plan:

The SEA will ensure that an LEA receiving funds under title I, part A of the Act will provide children in foster care transportation, as necessary, to and from their schools of origin, consistent with the procedures developed by the LEA in collaboration with the State or local child welfare agency under section 1112(c)(5)(B) of the Act, even if the LEA and local child welfare agency do not agree on which agency or agencies will pay any additional costs incurred to provide such transportation.[22]

There has been a strong objection to this further proposed rule.  Commenters such as the National Association for the Education of Homeless Children and Youth (NAEHCY) have strongly argued against this proposal, saying it, “contradicts ESSA’s statutory language by requiring LEAs to provide transportation when the agencies cannot agree on payment. The rule would have the effect of shifting the entire cost of transportation to LEAs unilaterally.”[23] Some other commenters want to retain a provision clarifying that Districts must transport the child while the LEA and child welfare agency work out some kind of dispute resolution process, but others hold the position that transportation of children in foster care is a responsibility of child welfare agencies and argue that Districts should accept financial responsibility only “if they agree.”[24]

The backlash from schools and education advocacy agencies underscores, however, the issue. Child welfare agencies have been tasked with transporting children to their schools of origin (if necessary) ever since the Fostering Connections Act was passed.  Yet, years later, rates of foster student school instability remain incredibly high.  We are simply not currently providing most of our most at-risk students with educational stability with our current resources. Districts, which can and certainly will quibble about the exact extra requirements, are going to be held at least partially responsible for getting these students to school.  In part, this is because there is recognition on the federal level that having transportation as a responsibility of child welfare agencies alone is simply not working.  The emphasis on the requirements for our districts should signal to our state legislatures that extra funding is needed(?).

Ms. Cash says that any speculation on what the final federal rules will contain is premature, and says that Districts will just have to be in a holding pattern until more detailed guidance is released, which she estimates will come later this year. One thing is clear, says Donna Cash, and that is something she tells Districts all the time – “A good Transportation Director is worth their weight in gold.”[25] Her role is to talk to students, parents, schools, and advocates, and to be the final decision-maker to hopefully get the child in a good place as quickly as possible. She’s worked at DESE on this issue since 2008 and says, “[i]f we can keep just one thing constant – and that’s school – we will make a world of difference for these kids.”[26]

 

Maureen Hanlon*

Edited By: Ryan Reed

[1] My initial encounter with the changed provisions in ESSA came while working as a legal intern at Legal Services of Eastern Missouri.  I am also a Court Appointed Special Advocate with Voices for Children. However, the following blog post is written solely in my capacity as a law student at Saint Louis University School of Law, and does not reflect the position or editorial contribution of any other organization.

[2] Every Student Succeeds Act (ESSA), Pub. L. No. 114-95, 129 Stat. 1802.  ESSA reauthorizes the Elementary and Secondary Education Act (ESEA), 20 U.S.C. §§ 6301 et seq., which provides federal funds to improve elementary and secondary education in public schools.

[3] McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§ 11431 et seq. as amended by Every Student Succeeds Act (ESSA), Pub. L. No. 114-95, 129 Stat. 1802.

[4] The McKinney-Vento Act as amended by the Every Student Succeeds Act of 2015, National Association for the Education of Homeless Children and Youth (Sept. 1 2016), available at: http://www.naehcy.org/essa-training-and-professional-development-resources

[5] Id.

[6] Interview with Donna Cash, DESE Supervisor and Homeless State Coordinator, September 13 2016.

[7] 20 U.S.C.A. § 6311(h) (West 2016), 42 U.S.C. § 11432(g)(3)(C)(iii), 42 U.S.C. § 11432(g)(3)(B)(i)-(ii)

[8] 42 U.S.C. § 11434a(2)

[9] Interview with Donna Cash, DESE Supervisor and Homeless State Coordinator, September 13 2016.

[10] The McKinney-Vento Act as amended by the Every Student Succeeds Act of 2015, National Association for the Education of Homeless Children and Youth (Sept. 1 2016), available at: http://www.naehcy.org/essa-training-and-professional-development-resources

[11] Emily L. VanBooven and Kathy Thornburg, The State of Missouri’s Children, Center for Family Policy and Research, University of Missouri (Dec. 2013), available at: http://hdfs.missouri.edu/cfpr/documents/scd/children.pdf

[12] Letter from John M. Dalton, Attorney General, to Hon. William E. Neff, Prosecuting Attorney for Benton County (Dec. 9 1957) (on file at Missouri Department of Elementary and Secondary Education).

[13] Interview with Donna Cash, DESE Supervisor and Homeless State Coordinator, September 13 2016.

[14] Dale Singer, Formula for Missouri Schools is Sharply Underfunded, New Study Says, St. Louis Public Radio, Mar. 19, 2014, http://news.stlpublicradio.org/post/formula-missouri-schools-sharply-underfunded-new-study-says#stream/0

[15] The McKinney-Vento Act as amended by the Every Student Succeeds Act of 2015, National Association for the Education of Homeless Children and Youth (Sept. 1 2016), available at: http://www.naehcy.org/essa-training-and-professional-development-resources

[16] 42 U.S.C.  § 11432(g)(1)(J)(iii)

[17] 42 U.S.C. § 11432(g)(1)(F)(i)

[18] 20 U.S.C.  § 1112(c)(5)(B)

[19] 20 U.S.C. § 1112(c)(5)(B))

[20] U.S. Department of Education and U.S. Department of Health and Human Services, Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care (2016).

[21] The Department of Education is creating rules to accompany ESSA and those rules are currently open for public commentary. “Agencies get their authority to issue regulations from laws (statutes) enacted by Congress. . . . Congress may also pass a law that more specifically directs an agency to solve a particular problem or accomplish a certain goal.” A Guide to the Federal Rulemaking Process, The Office of the Federal Register (Jan. 2011), available at: https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf

[22] Proposed regulations implementing programs under title I of the Elementary and Secondary Education Act of 1965 (ESEA) to implement changes to the ESEA by the Every Student Succeeds Act (ESSA) (proposed May 31, 2016) (to be codified at 34 C.F.R. §299.13(c)(1)(ii)) (emphasis added).

[23] Comments on Proposed Rules of the Department of Education Elementary and Secondary Education Act of 1965, As Amended by the Every Student Succeeds Act: Accountability and State Plans, National Association for the Education of Homeless Children and Youth (Aug. 1 2016), available at: http://www.naehcy.org/sites/default/files/dl/legis/Proposed%20ESSA%20Regulations%20Draft%20Comments%20FINAL.pdf

[24] Notice of proposed rulemaking – publicly submitted comments on the Department of Education’s proposed regulations implementing programs under title I of the Elementary and Secondary Education Act of 1965 (ESEA) to implement changes to the ESEA by the Every Student Succeeds Act (ESSA).  https://www.regulations.gov/document?D=ED-2016-OESE-0032-0001

[25] Interview with Donna Cash, DESE Supervisor and Homeless State Coordinator, September 13 2016.

[26] Id.

* Saint Louis University School of Law, Class of 2018