Roughly a month ago, we reported on how the Every Student Succeeds Act puts a new emphasis on students in foster care by requiring that states report disaggregated data about their academic performance. But after the release of the draft ESSA accountability rules last month, a dispute is emerging over another issue related to foster care students—the cost of getting them to and from school.

The disagreement relates to how the law tries to create more stability for foster care students by allowing students to remain in their original school whenever possible. There’s a big debate over whether the local district or the welfare agency is on the hook for the sometimes-expensive transportation costs to keep a child in his or her school of origin.

ESSA states that if there’s any additional such cost for transporting students in foster care, the district “will provide transportation” for the child if:

• the local child welfare agency agrees to reimburse the local educational agency for the cost of such transportation;
• the local educational agency agrees to pay for the cost of such transportation; or
• the local educational agency and the local child welfare agency agree to share the cost of such transportation;

According to a recent federal report, about 415,000 children were in foster care in 2014, a figure that had declined from 513,000 in 2005. In 2014, the median age of children in foster care was 8 years old.

So what do the U.S. Department of Education’s proposed ESSA rules say? States must ensure that districts provide such transportation to and from schools of origin for foster care students, “even if the LEA (local educational agency) and local child welfare agency do not agree on which agency or agencies will pay any additional costs incurred to provide such transportation.”

That language is alarming some advocates. They argue that the proposed rule is not only inconsistent with ESSA’s actual language, but that it would hamstring any sort of compromise that districts might reach with welfare agencies about costs.

“What the rule does, essentially, is say: ‘Never mind, schools are going to pay, because all child welfare agencies need to do is decide not to negotiate,’” said Barbara Duffield, the director of policy and programs at the National Association for the Education of Homeless Children and Youth.

Duffield added that it’s very clear in the law that where there isn’t any additional cost for districts to transport foster care students to schools of origin, they’re required to provide that transportation.

So what are arguments for placing more of the responsibility on school districts for this transportation cost?

In ESSA comments submitted earlier this year, a variety of groups like the NAACP and Children’s Defense Fund also said that districts need to try to work with more than one child welfare service organization in seeking to share this cost burden.

In a policy brief published by the California Foster Youth Education Task Force about a previous piece of 2006 state legislation about foster care, the task force noted that districts are, of course, provided public funding for the purpose of transporting students. County child welfare agencies, the brief also notes, should be made aware of all the transportation options that districts make available.

And the California policy brief also says the state might consider requiring districts to set aside a certain share of their transportation funding to address the needs of students in foster care.

As we reported in May, ESSA’s statutory language doesn’t explicitly say who’s ultimately on the hook for the costs if both a district and the child welfare agency decline to cover these costs and can’t reach an agreement on cost-sharing.

In other words, ESSA left unanswered the question: Where does the buck stop? The draft rules seem to provide a very clear, if controversial, answer to that question: When it comes to transportation costs, the buck stops with the school district.

Want more on this? Last month. Sen. Patty Murray, D-Wash. and the ranking member of the Senate education committee, and four other lawmakers wrote a letter to Secretary of Education John B. King Jr. and Secretary of Health and Human Services Sylvia Burwell emphasizing that child welfare agencies and districts need to begin collaborating on a variety issues related to children in foster care through both regulations and regulatory guidance. Read that full letter.