ELC advocacy informs new federal guidance for improving educational access for children in foster care

June 27, 2016

The Education Law Center’s long-time advocacy for children in foster care informed new joint guidance issued on June 23rd by the U.S. Departments of Education and Health and Human Services to ensure school stability and improve educational outcomes for the 270,000 children of school age in foster care.

This new guidance directs states, including Pennsylvania, on how to comply with specific provisions in the Every Student Succeeds Act, the new federal law which replaced No Child Left Behind.  These provisions ensure that students placed in foster care will be permitted to remain in the same school even if they move and ensures immediate enrollment in a new school.  The law also requires schools and child welfare agencies to collaborate to provide transportation for students in foster care when needed and requires school districts and states to collect and report data on the academic achievement and graduation rates of children in foster care.

ELC is proud to be a founding member of the Legal Center for Foster Care and Education, along with the American Bar Association’s Center on Children and the Law and the Juvenile Law Center. The Center will continue to work with federal and state officials on effective implementation of the new law in light of this guidance.

Concerns raised about law replacing No Child Left Behind

One month after Congress approved legislation shifting oversight of student accountability standards from federal to state control, state officials, including those in Pennsylvania, are planning how to establish and measure those new standards.

The end of No Child Left Behind, passed by Congress in 2001 and put into effect in 2002, was welcomed by many who objected to its focus on testing and to the complex reporting requirements. The program also did not come close to its goal for 100 percent proficiency by 2014.

But some civil rights and education advocacy groups are concerned that the Every Student Succeeds Act, which replaces the former federal statute known as No Child Left Behind, will create an environment that will not require some under-achieving schools to improve.

“We are concerned that without federal oversight that the schools in Pennsylvania can overlook the needs of educationally vulnerable students,” said Cheryl Kleiman, staff attorney in the Pittsburgh office of the Education Law Center.

The D.C.-based civil rights organization Advancement Project cited the case of Brown v. Board of Education in which the U.S. Supreme Court in 1954 unanimously declared state-sponsored segregation in public schools unconstitutional.

“History tells us the federal government is a necessary party in ensuring equity in education,” the organization said in a release shortly after passage of the ESSA. “Without federal interventions segregated schools would have persisted.”

While, the ESSA was approved by Congress and signed into law by President Barack Obama in December, its exact details won’t be known to states until the voluminous legislation is translated into regulations by the U.S. Department of Education. It takes effect in the 2017-18 school year.

Nicole Reigelman, spokeswoman for the Pennsylvania Department of Education, said the department “is encouraged by the changes brought about by the ESSA,” and plans to work with stakeholders in the development of Pennsylvania’s assessment plan.  The department is working on a timeline for the plan’s completion.

The NCLB required the reporting of student achievement data that was broken down by subgroups such as minorities, English Language Learners, special education and economically disadvantaged students.

Signed into law in 2002, the NCLB created the measure of Adequate Yearly Progress, or AYP, and required all students to hit proficiency targets that increased each year. Schools with grade levels and student groups that did not hit the annual targets were labeled and required to devise improvement plans. Though it was never acted upon, the threat of the loss of federal funds hung over the heads of states and districts if appropriate actions weren’t taken

The ultimate goal was 100 percent proficiency by 2014. According to the National Assessment of Educational Progress, the “Nation’s Report Card,” “proficiency” rates in 2014 were below 50 percent for every racial and ethnic group, in both reading and math, in both fourth and eighth grade. There were two exceptions: Asian students in all subjects scored 51-64 percent and white students in fourth-grade math scored at 54 percent.

Critics of the NCLB said that it set an unattainable goal, created an excessive focus on annual testing and did not take into account other measures of progress. In order to address those issues, ESSA will require states to take a more comprehensive look at student achievement with less emphasis on testing.

Under the ESSA, states are mandated to create academic plans that will produce students who are college or career ready, without remediation. However, they also are required to intervene only in the lowest-performing 5 percent of schools, high schools where a third or more of the students fail to graduate and schools with persistent achievement gaps.

Carey Harris, executive director for educational advocacy group A+ Schools said the legislation leaves room for chronically underachieving schools that don’t fall within the bottom 5 percent to “fall through the cracks.”

“Five percent is a very low bar,” she said. “None of the city public schools would even meet that target, yet you have some that have struggled academically for years. I would hope this legislation would get very serious about addressing that, so we’re not looking at Westinghouse, looking at Carrick, looking at [University Prep] in 10 years and saying they’re still no better off.”

Chad Aldeman, an associate partner at the education consulting and research group Bellwether Education Partners and former adviser in the policy office of the U.S. Department of Education, estimates that about 17,000 schools in the nation that would have been required to come up with meaningful improvement plans under NCLB will now be “off the hook.”

Ms. Reigelman said Gov. Tom Wolf is dedicated to making sure that every Pennsylvania student is college or career ready when they graduate and that he has lobbied for “historic” funding increases to Pennsylvania to work toward that goal.

A holdover from the NCLB included in the ESSA is that student achievement data will still be reported by subgroups. But critics question its value if there is no federal mandate for improvement beyond the bottom 5 percent. However, states can set their own target percentage for improvement, but would receive no federal funding about the bottom 5 percent.

“A lot of that data is available to the public now, although some states and districts are better than others about publicizing it,” said Dwanna Nicole, senior policy advocate for Advancement Project. “Even with all that data, if the school district and state aren’t going to use it to ensure equitable education for young people, then it doesn’t matter.”

Civil rights and educational advocacy leaders say it’s their hope that their organizations can fill the void of federal oversight by holding schools and districts accountable and working with states as those plans are formulated.

That collaboration “should begin now,” Ms. Nicole said.

The groups want to see testing become less of a focus in the measurement formulas. In its place, they want to have other factors incorporated, including the annual academic growth of student groups, school climate, and how students are disciplined. In Pennsylvania, Ms. Reigelman said the governor and Education Secretary Pedro Rivera have had “ongoing meetings with stakeholders to explore alternatives and develop new measures” to make the state’s School Performance Profiles a more effective evaluation tool.

Ron Cowell, executive director of the Education Policy Leadership Center, said the new federal law has been applauded because it gives states far more flexibility than the NCLB, but with that flexibility comes responsibility.

“They need to respond in a way that we don’t lose a sense of responsibility and accountability for how schools are serving particularly kids who are most dependent on public education and historically were not well-served,” Mr. Cowell said.

Like Ms. Reigelman, Mr. Cowell raised funding as an obstacle for those putting together Pennsylvania’s plans. He said to overcome the lack of federal oversight, the state needs an aggressive accountability plan, but that requires adequate and stable funding from federal and state sources.

Mr. Cowell said it will be difficult for the state education department to determine the amount of financial resources it will have in the future, given that the state budget still is not settled and that the parties are in disagreement about the extent of education funding. This is compounded by the fact that education in Pennsylvania is still recovering from the nearly $1 billion reduction in funding in 2011.

In addition, he said, the department, similar to state education departments across the country, has been downsized in staff considerably in the past decade, leaving a smaller staff to carry out the federal mandates.

“When you start out with inadequate resources and no predictability about what available resources will look like year to year in the future, it’s pretty hard to engage in serious planning,” Mr. Cowell said.




Opinion: Unless we’re careful, the new ‘No Child’ may still leave some behind

PennLive Op-Ed – Dec. 24, 2015 – By Deborah Gordon Klehr and Jackie Perlow:

Earlier this month President Barack Obama signed into law a comprehensive overhaul of the Elementary and Secondary Education Act (ESEA), previously known as No Child Left Behind.

First passed by Lyndon Johnson in 1965, the mission of this federal law is “to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education.”

While past iterations of ESEA have failed to fulfill this promise, this month’s reauthorization offers states like Pennsylvania an opportunity to reaffirm ESEA’s central mission to advance educational equity and protect the civil rights of vulnerable students.

In several ways this reauthorization, known as the Every Student Succeeds Act (ESSA), represents an improvement over existing legislation.

It will provide targeted support to struggling schools, including schools where traditionally overlooked student groups consistently underperform.

The new ESSA does more to hold schools responsible for the achievement of English language learners, including those with disabilities, and provides significant educational protections for children in foster care and those experiencing homelessness.

The law also expands educational opportunities for youth in the juvenile justice system and supports their smooth transition both into and out of juvenile justice school placements.

In addition, we know that many vulnerable students experience trauma, and ESSA also takes positive steps to support schools to recognize and address trauma. We applaud these important new provisions.

However, the Education Law Center remains concerned about whether the new law has the teeth to guarantee a quality public education to our state’s most vulnerable students.

On its face, the changes in ESSA will do little to improve resource inequities, discipline disparities, or the lack of opportunities for educationally at-risk students in Pennsylvania.

Most worrisome, however, is the law’s lack of federal oversight and accountability.

Under ESSA, much of the responsibility for ensuring educational opportunities for vulnerable students has been shifted to the states.

Both current research and our experience in Pennsylvania show that when states are given unfettered control over education, the civil rights of the most educationally vulnerable students often go unprotected and their academic outcomes suffer.

We are concerned that without federal oversight, schools in Pennsylvania may ignore the needs of the educationally vulnerable students they serve.

In no area is this concern more pressing than when it comes to school discipline. Under No Child Left Behind, schools faced harsh consequences if students failed to achieve on high-stakes testing.

This focus on standardized test scores incentivized schools to push out the students who posed the greatest challenges.

At the same time, states largely turned a blind eye to the resulting discipline practices that disproportionately excluded students of color and students with disabilities.

While data shows that students of all races violate school rules at the same rate, black students are three times more likely to be suspended or expelled than white students.

The consequences of punitive discipline reach far beyond missing a day or two of class.

Students who are suspended even once in ninth grade are more than twice as likely to drop out of high school.

We know that unless the state actively holds itself accountable for eliminating existing discipline disparities, discriminatory and overly punitive discipline practices will continue to act as barriers for our most vulnerable students.

While ESSA will not require Pennsylvania to address these disparities, it does offer an opportunity to do so.

Under ESSA, each state is charged with developing an accountability plan. This plan must include three academic factors and one non-academic factor.

The law permits states to choose “school climate” – a broad term that encompasses suspensions, expulsions, and removal to alternative education settings – as the non-academic factor in their accountability plan.

The Education Law Center urges Pennsylvania to take advantage of this opportunity and identify school climate as the fourth factor in its accountability plan.

We also caution Pennsylvania not to replicate the incentives in No Child Left Behind that drove schools to adopt exclusionary discipline practices in a failed attempt to improve school performance.

Rather, the state’s renewed attention to an accountability framework should address improving academic performance in tandem with addressing school discipline.

This opportunity is timely because the Wolf administration and the Pennsylvania Department of Education have recently announced plans to revamp the state’s current and flawed School Performance Profile metric, which often penalizes schools impacted by poverty rather than rewarding progress.

However, including this factor is only the first step. As the state begins the process of developing and implementing its accountability plan, it is vital that Pennsylvania engage parents, students, advocates, and educators in these decisions.

We urge the state to seek out communities and leaders with diverse perspectives and include their voices at every step in the accountability plan process.

Only by holding ourselves accountable for eliminating the barriers that harm vulnerable students and providing schools with the resources they need to support them will Pennsylvania be able to avoid the shortcomings of the ESSA and ensure that all students in the state receive the quality education they deserve.

Deborah Gordon Klehr is the Executive Director of the Education Law Center. Jackie Perlow, Esq. is the Kaufman Legal Fellow at the Education Law Center.


President Obama Reauthorizes ESEA, Affording Groundbreaking Provisions for Children in the Foster Care and Juvenile Justice Systems

The following is a joint press release for immediate release by Juvenile Law Center, National Center for Youth Law, Education Law Center of Pennsylvania, and American Bar Association.

Katherine Burdick, Juvenile Law Center   215-625-0551
Jesse Hahnel, National Center for Youth Law   510-835-8098 x 3003
Maura McInerney, Education Law Center of PA   215-238-6970  x 316
Priscilla Totten, American Bar Association   202-662-1094

Washington, DC (December 10, 2015)President Obama today signed into law the Every Student Succeeds Act (ESSA), which is the reauthorization of the Elementary and Secondary Education Act (ESEA), a key federal law governing education, originally signed into law in 1965 and last reauthorized as No Child Left Behind in 2002. The ESSA is the first major overhaul of federal education law in over a decade. Among many new provisions, the law now requires states to ensure certain protections for vulnerable youth in the foster care and juvenile justice systems.

“Children in foster care are often forced to change schools multiple times, disrupting important relationships and derailing children’s educations. The new provisions in ESSA are an important advance in ensuring school stability and academic success for students in foster care, and we look forward to supporting schools and child welfare agencies to ensure smooth implementation,” said Kathleen McNaught of the ABA Center on Children and the Law, who leads the Legal Center for Foster Care and Education.

The Legal Center, a collaborative project between the ABA, Juvenile Law Center and Education Law Center of Pennsylvania, along with the National Center for Youth Law and other members of the National Working Group on Foster Care and Education, have worked for years to educate members of Congress on the unique challenges faced by children in the foster care system.

“Eliminating enrollment delays and ensuring school stability make profound differences for students in foster care. Research shows that even one fewer placement change doubles the likelihood that students in foster care will graduate high school,” said Senior Staff Attorney Maura McInerney at Education Law Center of Pennsylvania.

Although states and districts will be grappling with implementation of ESSA’s many new provisions, the protections for youth in foster care hold great promise. The newly enacted ESSA is expected to reduce disruptions in education for youth in foster care and provide them with greater school stability, continuity and success through a number of provisions, including:

  • Allowing youth in foster care to remain in the same school even when their foster home placements are changed
  • Requiring schools to immediately enroll children in foster care after a school move
  • Requiring points of contact in every state education agency as well as many school districts
  • Requiring planning for school transportation for youth in care
  • Tracking achievement data for youth in care

“Numerous studies have found the educational outcomes of students in foster care to be tragically poor,” said Jesse Hahnel, Executive Director of the National Center for Youth Law. “Disaggregating foster student data will allow the public and policymakers to understand and respond to the student achievement needs of foster youth in a systemic way.”

By requiring the disaggregation of achievement data for various sub-groups including foster youth, African-Americans, English Learners and Special Needs students, school districts and states will be able to see important trends in achievement and use limited resources where they are needed most. Including foster youth as a subgroup will document and make public, for the first time, the extent of the achievement gap for youth in foster care.

The law also affords significant protections for youth in the juvenile justice system. “Youth involved with the juvenile justice system are also at a high risk for academic failure,” said Katherine Burdick, Staff Attorney at Juvenile Law Center. “These students are often struggling with family issues, mental health issues, substance abuse, or abuse and neglect. If we really want these students to succeed, we need to remove the barriers to academic success, not make it more difficult for them.”

New ESSA provisions will improve the rates of success for youth being rehabilitated in the juvenile justice system. Under the new ESSA, states receiving Title 1 Part D funding (funding for prevention and intervention programs for children and youth who are neglected, delinquent or at risk) must provide protections, including:

  • Providing better planning and coordination of education between facilities and local districts
  • Supporting reentry to the community for youth returning from juvenile justice placements, including timely re-enrollment in appropriate educational placements
  • Creating opportunities to earn credits in secondary, postsecondary, or career/technical programming
  • Requiring transfer of secondary credits to the home school district upon reentry
  • Prioritizing attainment of a regular high school diploma

The National Center for Youth Law and the Legal Center for Foster Care and Education (a collaboration of the American Bar Association Center on Children and the Law, Juvenile Law Center, and Education Law Center of Pennsylvania) look forward to working with states to implement these new provisions.


The National Center for Youth Law (NCYL) is a national non-profit organization that has been working for more than four decades to improve the lives of poor children. For more information visit youthlaw.org or follow on Twitter@NCYLNews.

The Legal Center for Foster Care and Education is a national collaboration between the American Bar Association Center on Children and the Law, Education Law Center and Juvenile Law Center designed to provide a strong national voice for the education of children in foster care and a national clearinghouse for information on foster care and education.  For more information visit fostercareandeducation.org or follow on Twitter @FosterEdSuccess.

Juvenile Law Center is the world’s oldest non-profit, public interest law firm for children, working to advance the rights and well-being of youth in the justice and foster care systems. For more information visit jlc.org or follow on Twitter @JuvLaw1975.

Education Law Center of Pennsylvania works to ensure that all children have access to a quality public education, including poor children, children of color, children with disabilities, children in the foster care and juvenile justice systems, English language learners, and other vulnerable children. For more information visit elc-pa.org or follow on Twitter @edlawcenterpa.

With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. Follow the latest ABA news at www.ambar.org/news and on Twitter @ABANews.

Education Law Center Statement on the Every Student Succeeds Act


December 4, 2015

Contact: Ian Gavigan, Education Law Center-PA, 267-825-7713, [email protected]

Education Law Center Statement on the Every Student Succeeds Act

“Since its passage in 1965, the Elementary and Secondary Education Act (ESEA) has been a critically important federal law for ensuring educational equity and protecting the civil rights of the most at-risk students. In several ways the proposed reauthorization, the Every Student Succeeds Act (ESSA), represents an improvement over existing legislation and reaffirms the ESEA’s crucial mission ‘to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education.’ However, the current bill could do much more to protect the rights of the country’s most vulnerable students,” said Deborah Gordon Klehr, executive director of the Education Law Center. Continue reading