By Gillian S. Barjon
Historically foster children experience more negative educational outcomes on average than non-foster students. See “Fast Facts: Foster Care and Education Data at a Glance,” ABA Center on Children and the Law, January 2022. Nevada’s laws reflect the federal mandates to ameliorate educational problems facing children in foster care; such as the requirement for immediate enrollment, or the “school of origin” presumption. See 42 USC § 675(1)(G)(ii)); 20 USC § 1111 (g)(1)(E)(i).
One Nevada provision that implicates multiple foster education laws is the requirement that an Educational Decision Maker (EDM) be appointed to every foster child. NRS 432B.462. Because the EDM serves as the legal parent for education purposes, their participation and consent is explicit or implied in most steps that government stakeholders must take to help foster pupils. For example, an EDM should weigh-in on the academic plans required by NRS 388, which require schools to identify foster children, link them with school-based support staff, and create specific support plans for them. NRS 388.155, 388.165, 388.205. An EDM must also participate in disciplinary meetings, such as those where school administrators must examine a foster student’s unique circumstances when considering disciplinary removal for a behavioral infraction. NRS 388.466.
Since a parent’s right to make educational decisions regarding their children is established by federal precedent (e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925)), the Nevada EDM law is significant because it specifies who can and cannot be appointed, and details that person’s rights, duties, and limitations. Parents or guardians are presumptively the EDM, with the statutory preference being the person identified as the permanent placement resource/goal, unless they are: 1) unwilling or unable; or 2) it is not in the child’s best interest. NRS 432B.462(2). If the parent or guardian is not appropriate for the role, the court can appoint a relative, foster parent or care provider, a fictive kin, the guardian ad litem, or another qualified person. Id. at 462(3). In Clark County, that other qualified person is usually a community layperson called a Volunteer Education Advocate (VEA) who dedicates their time to defending a foster student’s educational rights and is trained by the Legal Aid Center of Southern Nevada.
The “who” matters a great deal to the trajectory of many foster children’s education because addressing their issues typically requires informed parental consent, ongoing communication, and consistent involvement. An absent or uninvolved EDM can also be as detrimental as one who doesn’t understand the child’s needs or who is ill-equipped to advocate for that child. Thus, the statute lays out a litany of responsibilities for the role, including advocating for the child’s special education rights as the surrogate parent (if the EDM is not the biological parent or guardian). Id. at 462(7, 9). An EDM must meet with the child and participate in any school meetings. For example, there might be a special education meeting where the EDM must agree or disagree with placement and accommodations or a discipline meeting where the EDM must accept or appeal an expulsion recommendation. Id. at 462(7).
An EDM or VEA should also appear at juvenile dependency court hearings to communicate recommendations and express concerns to the court about the educational services provided to the child, the child’s educational placement, and, when appropriate, services for transitioning to independent living for a child over age 14. Id. The statute requires similar communications between the EDM or VEA and other stakeholders, like the child’s Children’s Attorneys Project (CAP) attorney or Department of Family Services (DFS) Permanency Specialist (case worker). Id. To fulfill these communication duties, it is clear, though not written, that the EDM or VEA needs to keep contact with the student’s teachers to stay abreast of how the student is doing and have access to the student’s educational records.
The EDM is not alone in their duties to ensure the educational wellbeing of the child in care. At multiple stages of the dependency process, the court is required to review the educational wellbeing of the child. NRS 432B.410 to 432B.590. These hearings create crucial opportunities for the attorneys to provide feedback to the court about the successes, struggles, or barriers facing the EDM and the foster child on the educational front. Attorneys can also opine on whether the EDM is appropriate for the role, or whether a new EDM or VEA would be in the child’s best interests. NRS 432B.462(2,8). While the juvenile court judge has the ultimate power to appoint EDMs and enforce foster children’s educational rights, it is the EDM, the CAP attorney, the parent’s counsel, and the District Attorney for DFS who must help the court understand the educational landscape for a particular child.
While the primary and urgent legal step is the official appointment of an EDM or VEA at the very beginning of the dependency process NRS 432B.462(1), an EDM or VEA may subsequently need the court to enforce their role because of common road blocks that other foster-related laws were created to address. For instance, a school could fail to identify a struggling child as a student in care, and then deny the court-appointed EDM or VEA access to school meetings and educational records—resulting in the foster child’s educational concerns going unaddressed and the student’s educational placement being threatened. In this scenario, a CAP attorney could inform the court of the violation through the hearing process, thus giving the dependency judge the opportunity and basis to review the evidence, and order compliance with the EDM order and foster-related laws.
In summary, upholding the fidelity of this law rests in the hands of the officers of the court just as much as in the appointed EDM or VEA’s hands, and ultimately requires: a) prompt and careful appointment of an EDM or VEA to help students have an educational advocate from the start; b) ongoing involvement and monitoring to combat risks like chronic absenteeism and more frequent suspensions; and c) communication between dependency professionals and the EDM to enable to all stakeholders to further the child’s educational success.
About the author
Gillian S. Barjon is Team Chief of the Education Advocacy Program at Legal Aid Center of Southern Nevada. The program provides advice, advocacy, legal representation, and training in special education to indigent families in the community and to educational decisionmakers and volunteer education advocates for foster children.
About the article
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This article was originally published in the Communiqué (Aug. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-aug-2024/.
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