As individuals in state custody, children accepted into the foster care system have a substantive due process right to be free from harm. This due process right imposes an affirmative duty on states to protect foster youth and properly prepare them for emancipation. At the age of eighteen in most jurisdictions, youth emancipate from state custody into adulthood with the hope of successful independence. In reality, a large proportion of public
wards actually emancipate into homelessness, unemployment, and incarceration.
The public is increasingly recognizing the plight of youth aging out of foster care, and state and federal legislatures are responding to the concern. Legislative proposals to delay the age of emancipation might provide immediate relief for some foster youth in need, but this action is a temporary fix. To become selfsufficient adults, former foster youth must have access to higher educational or vocational programs. To succeed in such programs, most foster youth require some sort of financial support after they reach the age of majority.
This essay will therefore examine state funding of postsecondary educational and vocational training programs for youth after they emancipate from foster care. Part I will consider the state’s responsibility to prepare foster youth for adulthood in light of statistics suggesting that many emancipated youth are
not able to be self-sufficient in the “real world.” Part II will explore the relationship between higher education and independence, as well as the barriers facing foster youth who wish to attend post-secondary academic or vocational training programs. To identify relevant precedent for state-ordered
funding for educational expenses, this section draws an analogy to post-majority support for children of divorce. Many states allow courts to order non-custodial parents to pay for postsecondary education after a youth reaches the age of majority. The same policy justifications underlying such court action for children of divorce, such as the desire to equalize opportunities
for children of broken homes, also apply to former foster youth. Part III then assesses specific ways for states to fund postsecondary educational expenses for former foster youth. Using Massachusetts as a model, Part III proposes state implementation of “Former Foster Youth Educational Assistance
Programs” designed to provide grants and tuition waivers to public colleges, universities, and vocational training programs for former foster youth. By giving youth the skills they need to become self-sufficient, Former Foster Youth Educational Assistance Programs will enable states to fulfill their obligations to prepare emancipating youth for adulthood.
23 St. John's J. of Legal Commentary 383 (2008)