What Do the ESSA Proposed Regulations Mean for At-Risk Students?

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Zachary Malter, Policy Research Assistant

The newly proposed draft regulations for the Every Student Success Act (ESSA), released by the U.S. Department of Education on May 26th, not only give clarity to states about how to interpret the law—they also provide a clearer picture of how the law will serve the needs of at-risk students, in particular students with foster care or juvenile justice experience.

Prior to the draft regulations, there were several pieces written about how the law affects these populations. Building on that analysis, here are four ways the draft regulations impact students with foster care and/or juvenile justice experience:

1. Students who transfer to a juvenile justice facility will be included in accountability systems.

As I highlighted recently, many juvenile justice facilities lack adequate educational services; some do not even grant diplomas. Once students transfer from their home school to a facility, not only are they deprived of an education, but they are also often no longer accounted for in accountability systems. This means their educational progress is no longer tracked. Thus there is no incentive for states to provide an education to these students comparable to other students whose progress does matter in accountability systems.

Per the new regulations, this may change. States will be required to incorporate students in juvenile justice facilities in a school’s graduation rate calculation. If a facility offers diplomas, then its students will be included in that facility’s graduation rate calculation. However, if the facility does not grant diplomas, then its students will have to be included in the graduation rate for their home schools.

Put another way, all students in facilities must be counted in a school’s graduation rate denominator, meaning that whether a student graduates or not, he or she will affect a facility’s or a home school’s graduation rate. As a result of this regulation, the education of students in facilities may be taken more seriously.

2. States must guarantee that transportation is covered for students in foster care.

When students enter foster care, they are often forced to move, disrupting their lives in a number of ways. ESSA (in Title 1, Part A) calls for students entering foster care to stay in their school of origin, unless there is a compelling reason to remove them from there, so that their education remains stable. The question then becomes who is responsible for covering the cost of transportation of a student from the foster home to the school of origin. According to the new regulations, an SEA (state education agency) must ensure that an LEA (local education agency) provides transportation for the student, regardless of whether the LEA and local child welfare agency agree on who should pick up the tab. That is, the regulations assign explicit responsibility to the state for transportation of youth in foster care, and when there is disagreement at the local level over who pays, the state would have to settle the dispute (the regulation does not say how they should settle it, just that they need to provide transportation). This regulation builds on ESSA’s protections for youth in foster care, including its requirement that states report graduation rates and performance data for this subgroup.

3. How to define the “students in foster care” subgroup for the purposes of accountability is an open question, but nevertheless they must be reported on.

As part of the regulations, the Department of Education has called for comment on the specific question of how to define youth in foster care when calculating graduation rates and performance data for this subgroup. To quote the regulations:

“Should a student’s membership in the subgroup be determined only at the time when the student is enrolled in the cohort or should a student be included in the subgroup if the student is identified as…a child who is in foster care at any time during the cohort period?”

What the Department is asking is if a student starts the year in foster care but then leaves before they graduate, should they be counted as a member of the foster care subgroup? The regulations pose the same question about other subgroups—children with disabilities, English learners, and homeless children—while at the same time providing clearer definitions of each of the subgroups. This question of defining sub-groups is likely to be an area for fertile discussion during the comment period.

Youth with juvenile justice experience are not included here, since they are not one of the subgroups established under ESSA (they are given attention in Title 1, Part D). As a result of not being included as a subgroup, will youth with juvenile justice experience lag behind other at-risk populations?

Overall, while questions remain, the regulations make clear that the graduation rate and performance data of students in foster care must be reported on, and cannot be lumped in with other subgroups as part of a “super-subgroup” to conceal its outcomes. To address the lingering questions, the Department of Education has promised to release more guidance on youth in foster care.

4. It is unclear how the state intervention requirements will affect at-risk students in alternative schools and juvenile justice facilities.

ESSA calls for “comprehensive support” from the state for schools that meet one of three criteria:

  1. Falling in the lowest 5% of a state’s Title I schools.
  2. Having less than two thirds of students graduate.
  3. Being a Title 1 school with a subgroup that chronically underachieves and has not previously improved upon previous interventions.

In addition, schools must receive “targeted support” from the state if they have a consistently underperforming subgroup.

The regulations do not specify what types of interventions are required for these schools, as long as they are evidence based.

What will this framework mean for alternative schools or schools in juvenile facilities, which are likely to fall into at least one of these categories? Will these schools be punished in any way, despite the unique characteristics of their student population? Will schools that make progress with these groups receive any recognition or will they be subject to unnecessary interventions?

Some civil rights groups have contended that there is a need for additional regulations to clarify how the law—including the most relevant provision (Title 1, Part D)— affects students with juvenile justice experience. The new draft regulations are a step forward but by no means an end to discussions of how ESSA will affect students with juvenile justice and foster care experience.

Zachary Malter is a Policy Research Assistant at the American Youth Policy Forum.


The American Youth Policy Forum (AYPF), a nonprofit, nonpartisan professional development organization based in Washington, DC, provides learning opportunities for policy leaders, practitioners, and researchers working on youth and education issues at the national, state, and local levels. AYPF events and publications are made possible by contributions from philanthropic foundations. For a complete list, click here.