February 01, 2014

How Courtroom Resources Can Help Judges Address Education Needs of Children in Care

Legal Center for Foster Care and Education

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Why do the education needs of children in foster care need special attention?

Studies show that students in foster care experience: 

  • high rates of school mobility when they enter care and when they change living placements, 
  • delays in enrollment when school changes occur, 
  • school suspensions and expulsions at higher rates than their peers not in foster care, 
  • lower standardized test scores in reading and math, 
  • high levels of grade retention and drop-out, and 
  • far lower high school and college graduation rates. 

Research has shown that abuse and violence can harm children’s cognitive development and ability to learn. Many children experience a lack of school stability, with enrollment delays and the loss of earned credits when they change schools. Students in care are disproportionately placed in restrictive school programs or residential settings. Despite their disproportionate need for special help, including special education, these students are often unidentified or underserved. 

These problems are compounded by frequent confusion over who has educational decision-making authority or the lack of any legally authorized decision maker or advocate.

Why do judges need to help?

Judges are required to address the child’s safety, permanency, and well-being needs—including education. A specific focus on education is now mandated by federal (and increasingly state) law. See a chart detailing the federal and state laws that address school stability for children in foster care

These laws require child welfare agencies, and in some cases school districts, to ensure children in care: attend school, remain in the same school when their living placement changes unless this is not in their best interest, and are enrolled in school promptly with all of their school records when a school change occurs. 

In addition, if children in care are receiving special education services, they must have parents to represent them. Alternatively, they must have competent and legally authorized education decision makers who are not employed by agencies involved with the education or care of the child. 

Judges are needed to oversee these legal requirements and ensure agencies and parties before the court comply with the law. 

How are judges positioned to help?

Because of the multiple systems involved, judges are essential to ensure each system meets its responsibilities. Without clear direction from the courts, caseworkers and child service providers may not prioritize education issues. They also lack the court’s authority to appoint an education decision maker or authorize a person to consent to a special education evaluation. Judges can order a party before the court to arrange and/or pay for transportation when needed for the child to remain in the same school or make sure the agency is making school selection decisions in the child’s best interest. 

How can court rules, policies, or other tools help improve children’s educational outcomes? Which jurisdictions have good models?

Children’s educational needs must be reviewed, systematically and for each child, when: 

  • the child enters care; 
  • at each stage of judicial proceedings; and 
  • whenever a placement change is proposed. 

Several states, including California, Colorado, New York, Oregon, and Pennsylvania, have adopted judicial rules or statutes that require judges to make education inquiries, findings, and orders. 

For example, Judicial Rules in Pennsylvania adopted in 2011 require juvenile courts to consider, make findings, and issue appropriate orders around education at each stage of the judicial process—from the initial shelter hearing to the permanency hearing. They consider various issues: a child’s educational program and progress, whether school changes are being minimized, and whether the child has an authorized educational decision maker. 

What judicial tools or checklists are available?

In 2008, the National Council of Juvenile and Family Court Judges (NCJFCJ) released an updated version of a judicial checklist of education issues. Jurisdictions in many states, including Arizona, Iowa, New Jersey, Ohio, Oregon, Texas, and Utah, as well as Washington, DC, are using protocols and checklists to systematize their courts’ review process. See checklist examples.

The Legal Center for Foster Care and Education has worked with Hamilton County Juvenile Court and the Legal Aid Society of Southwest Ohio to enhance how education issues are being addressed in Cincinnati, Ohio. Through a project known as Kids in School Rule!, Hamilton County Jobs and Family Services has committed two education specialists to support the education needs of children in Cincinnati Public Schools. 

Through their efforts, an “Education Court Report” form was developed to supplement the court report submitted by the student’s caseworker. This Education Court Report details a child’s education needs, performance, and participation in school. Further, data gathered from these reports will be collected to evaluate progress over time. The Legal Center has adapted this tool and created a template for other jurisdictions

Finally, the Legal Center has developed a short School Stability Best Interest Checklist to support jurisdictions in making the “best interest” determinations, as required by the education components of the Fostering Connections Act. This checklist will help child welfare staff respond to courts’ inquiries regarding how school stability decisions have been made for specific children. 


How can courts track education outcomes of children to ensure systems are responding appropriately?

In addition to increasing attention to education within the courtroom, judges can also play a role in elevating education success for children in foster care at a systemic level. To guide courts in identifying education measures to track through court automated systems, the National Center for State Courts worked with organizations and experts from around the country to develop specific education measures, detailed in Educational Well-Being: Court Outcome Measures for Children in Foster Care

Where can I learn more? 

The Legal Center provides training and technical assistance and has a number of tools and resources. Visit our website to access the Q&A Factsheet: Courtroom Education Advocacy

Contact us with questions or to share examples of what is happening in your jurisdiction on this topic.


The Legal Center for Foster Care and Education is a collaborative project by the ABA Center on Children and the Law, the Education Law Center, and the Juvenile Law Center. It provides a strong voice at the national level for the education of children in foster care, a clearinghouse of information on foster care and education, and training and technical assistance nationwide.