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SPECIAL EDUCATION AND THE JUVENILE
SYSTEM
by J. William Cain, Jr., General Counsel and Edwin V. Gartin, Staff
Attorney
November 2001
- Special Education Obligations of the State
- Abuse of Juvenile Court Process by School Districts
- Special Education at the Alexander Youth Services Center
During the Juvenile Court process there should be inquiry into
whether the youth who is the subject of the Court proceeding is
eligible for or is receiving special education. This is not because
the Court should make educational decisions, but because it is
relevant to the disposition of most cases. The State, and its
constituent parts, have a particular responsibility in this area.
Overall Responsibility of State to Follow Federal and State Law as
Applied to Children Who Require Special Education and Related
Services The State of Arkansas is statutorily obligated by the
Individuals with Disabilities Education Act (IDEA)1 and the state's
Children with Disabilities Act2 to ensure that all children with
disabilities age 3 to 21 residing in the State have the right to a
free appropriate public education (FAPE), including children with
disabilities who have been suspended or expelled from school.3 This
obligation continues regardless of the placement of the youth with
disabilities requiring special education, including those
individuals who are residents of facilities, including detention
centers, youth services center, and other youth facilities. The
provision of FAPE for individuals placed outside their regular
school is specifically addressed by the rules and regulations of the
Arkansas Department of Education, (ADOE) and by interagency
agreements between ADOE and the Arkansas Department of Human
Services (DHS).
Under IDEA a "child with a disability means a child with mental
retardation, hearing impairments (including deafness), speech or
language impairments, visual impairments (including blindness),
emotional disturbance, orthopedic impairment, autism, traumatic
brain injury, other health impairments, or specific learning
disabilities and who, by reason thereof, need special education and
related services.4 A specialized and individualized course of
instruction must be developed for each student with a disability,
taking into account that child's capabilities.5 The services that a
school district will provide to a child are to be summarized in a
written statement - the Individualized Education Program (IEP).6
IDEA includes an elaborate set of procedures intended to ensure
parents' participation in the ongoing development of their child's
education program.7 If a child requires special education, a school
district must convene a team to formulate an IEP in light of the
child's ability and parental views about the child's education.8
"Related Services" include transportation, and such developmental,
corrective, and other supportive services including speech language
pathology and audiology services, psychological services, physical
and occupational therapy, recreation, including therapeutic
recreation, social work services, counseling services, including
rehabilitation counseling, orientation and mobility services,
medical services for diagnostic and evaluation purposes as may be
required to assist a child with a disability to benefit from special
education.9
If a school decides to initiate a suspension of more than 10
consecutive school days, a suspension that would include the 11th
cumulative suspension day in a school year where a pattern exists,
or an expulsion, it must notify the child's parents and give written
notice of all the procedural safeguards available to them and their
child. Before the school may proceed with any such suspension or
expulsion, it must conduct a review of the relationship between the
behavior at issue and the child's disability to determine whether
the behavior is a manifestation of the child's disability. If the
result of the review is a determination that the behavior at issue
is not a manifestation of the child's disability, the child may be
subjected to the same disciplinary measures, including suspension or
expulsion, as are children without disabilities who engage in
similar behavior. However, the school must continue to provide free
appropriate public education during the suspension or expulsion. If
the review determines that the behavior is a manifestation of
disability, the child may not be suspended or expelled. However, if
appropriate, the school may propose changes to the child's IEP,
placement, or both. IDEA also requires that the school system
convene the IEP Team to plan a functional behavior assessment,
arrange for the assessment to be conducted, and develop and
implement a plan of appropriate interventions.10
IDEA permits a child whose behavior is a manifestation of disability
to be placed in an appropriate "interim alternative education
setting" over parental objection for dangerous behavior under
certain circumstances. School personnel cannot take this action on
their own. Rather, they must request a due process hearing and seek
an order from a Hearing Officer placing the child in the interim
alternative educational setting.11
There should be Court inquiry as to whether the mandated procedures
have been followed by the school district because, if the individual
before the Court is a student with disabilities who is subject to
inappropriate school discipline, the Court should recognize that
schools are obligated to treat behavioral manifestations as
education issues by responding to them with appropriate services and
supports. Children who have disabilities and are suspended or
expelled from school must be provided with a free appropriate public
education. These matters should be considered, at the very least,
within the consideration of alternative disposition plans. The
Eighth Circuit recently referred to regulations of U.S. Department
of Education which instruct schools that suspension or expulsion is
not normally appropriate as a first-line response to behavior
problems resulting from a student's disability, even if the conduct
in question violates school rules.12 The same should be true of
automatically referring the child with a behavior problem to the
juvenile court merely because a statute may allow it. In the same
case, the Eighth Circuit held that a social and emotional behavior
problem is not necessarily separable from the learning process, even
if the problem is not primarily educational.13 There the Court
considered that the behavior problem needed to be addressed in order
for the child to learn. This can be done only at the school level.
Unfortunately, at the present time, school districts may quickly
remove a child from the community, handing the burden to the
juvenile court, while abdicating its own statutory responsibilities.
Section 504 of the Rehabilitation Act of 1973 requires that a
recipient of federal financial assistance that operates a public
elementary or secondary education program shall provide a free
appropriate public education to each qualified person with a
disability who is in the recipient's jurisdiction regardless of the
nature or severity of the person's disability.14 In its enforcement
of Section 504, the Office for Civil Rights (OCR) recognizes that
the initiation of juvenile court proceedings with respect to a child
with a disability for disability related behavior is not only
improper, but unlawful. For example, OCR entered into a "resolution
agreement" with a school district which included the following
terms:
• Where there is an allegation that a student who has a disability
or is suspected of having a disability has committed a delinquent
act on school grounds or at a school function, information must be
gathered as to the disability, including whether the student has a
behavior intervention plan, and the number of days during the school
year the student has been suspended prior to the initiation of any
juvenile court action.
• If a significant change in placement is anticipated, the school
will not initiate juvenile court action until an IEP or Section 504
Team determines whether the behavior is a manifestation of the
student's disability. A significant change in placement is the
removal of the student from the current educational placement for
more than 10 consecutive days.
• All efforts must be made during or after school hours to contact
the parent or person responsible for the student with disabilities.
• The IEP or Section 504 Team must promptly convene and consider all
relevant information including evaluation and diagnostic results for
the student. It must then consider whether the current plan is
appropriate, whether services are being provided consistent with the
IEP or Section 504 plan, whether the disability impairs the
student's ability to understand the consequences of the act, whether
the disability impairs the student's ability to control the
behavior, and whether the behavior otherwise relates to the
disability.
• If the Team determines that the act is a manifestation of the
disability, the school does not initiate juvenile court action.
• In an emergency situation, where court action is initiated before
the IEP or Section 504 Team meets and the Team subsequently meets
and determines that the behavior is a manifestation of the
disability, the school will share the information with the
prosecutor who may move to dismiss the petition.15
Because children with disabilities are protected by federal and
state law relating to education, intake and probation officers,
prosecutors, defense attorneys, and juvenile court judges should
always be aware of the provisions of these laws in handling a case
in juvenile court whether it be a matter of delinquency, family in
need of services (FINS), or dependent-neglected. The Court has a
wide range of options as to the disposition of the child before
it.16 Lack of efforts made by a school system, along with a lack of
procedural safeguards afforded, should be a matter of concern as to,
for example, alternative settings and supplementary aids and
services. In any event, the individual school district must take
care that it is not using juvenile court actions against children
with disabilities for disability related behavior at school in lieu
of and to circumvent the rights and protections provisions of IDEA.
As one of many examples of this sort of abuse, an Arkansas Hearing
Officer found:
“This Hearing Officer finds that the school district has simply been
trying to avoid complying with the IDEA and has tried to use the
juvenile court system to do so. I find that the school district has
been systematically evading the law. . .17”
The School District's Use of the Juvenile Court Process
Federal law allows each school district to report a crime committed
by a child with a disability.18 State law allows school personnel to
report an act of violence or a crime involving a deadly weapon.19
However, school districts should not use juvenile court procedures
in order to evade their responsibilities under federal and state
special education law. Where the school district fails to follow the
IEP (and any behavior modification provisions in the IEP) and fails
to follow the specific discipline procedures and, instead, causes
juvenile proceedings to be initiated, federal law is violated.
This matter has recently been addressed by ADOE in a Director's
Memorandum of August 23, 2001.20 The Department addressed the
specific issue of filing of FINS petitions when a student has
exhibited challenging behaviors in the school setting. The
Department had before it evidence supporting the contention that
school districts are addressing student behavioral issues by
routinely referring students to the juvenile courts. In cautioning
school districts that the relevant statutes do not authorize school
districts to engage law enforcement and judicial authorities in
order to circumvent any of their responsibilities, the Memorandum
states:
“During the development of a student's Individualized Education
Program (IEP), the IEP Team is required to consider, if appropriate,
"in the case of a child whose behavior impedes his or her learning
or that of others, strategies, including positive behavioral
interventions, strategies, and supports to address that behavior."
[34 CFR Sec. 300.346] A failure to, if appropriate, consider and
address these behaviors in developing and implementing the child's
IEP would constitute a denial of free appropriate public education (FAPE)
to the child.
Furthermore, for any student with disabilities whose misbehavior
results in repeated short-term suspensions which accumulate to more
than ten school days in the school year, or in long-term
suspension/expulsion from school, the IDEA requires that the public
school conduct a functional behavior assessment and develop and
implement a behavioral intervention plan to address the student's
problem behavior(s). [34 CFR Sec. 300.520(b) & (c)].
Filing a FINS petition with a juvenile court in order to address the
misbehaviors of a student with disabilities without having
appropriately addressed the behaviors as set forth under the IDEA
can be construed as using the FINS process to circumvent the
requirements of the IDEA. While there may be cases where it is
appropriate for a public school to file or support the filing of a
FINS petition with a juvenile court to address the needs of a
student and his family, it should be the exception and not the rule.
However, the Special Education Office cannot support a practice of
referring students to a juvenile court in lieu of making appropriate
efforts to address challenging student behaviors, including the use
of alternative programs/settings, if needed. The ADE Special
Education Office strongly cautions all school districts against even
the appearance of such conduct.”
The advice of ADOE applies with equal force to any juvenile court
proceeding. Securing appropriate education services for children
whose disabilities entail behavioral manifestations was a key
impetus behind the enactment of IDEA - known when it was enacted in
1975 as the Education for all Handicapped Children Act. Prior to
that time, educators and administrators routinely labeled children
with disabilities as behavioral problems, and thus excluded them
from public education, or relegated them to segregated programs with
inadequate services.21 Statistics before Congress indicated that 82%
of children classified as emotionally disturbed were completely
excluded from school.22 Thus, among the purposes of IDEA is "to
ensure that all children with disabilities have available to them a
free appropriate public education that emphasizes special education
and related services designed to meet their unique needs and prepare
them for employment and independent living."23
It is the duty of school personnel to address problem behavior as an
educational matter, as both an aspect of FAPE and a strategy for
preventing disciplinary exclusion. Not only must the IEP include
strategies to address behaviors, any time a child is suspended from
school or otherwise removed for disciplinary reasons from the usual
educational placement, school personnel must conduct a functional
behavioral assessment and develop a behavioral intervention plan.24
This documentation should be before the juvenile court in any
proceeding involving the child in question. A student suspended for
any amount of time is entitled to procedural due process, meaning,
at a minimum, some form of notice of the charges and an opportunity
to be heard.25 Even a student who admits to misconduct should be
afforded a hearing on the issue of penalty.26
The United States Supreme Court held in Honig v. Doe, supra, that
school personnel are prohibited from unilaterally excluding special
education students; once the parent triggers stay-put,27 school
personnel could remove the child from the current educational
placement over parental objection only by obtaining an order from a
court of competent jurisdiction. To obtain such an order, the school
system must demonstrate that maintaining the child in the current
placement is substantially likely to result in injury to the child
or others and that reasonable efforts to minimize the risk of harm
through the use of supplementary aids and services has not
succeeded.28
The "reporting" of a child to the juvenile court process triggers a
"change of placement" which entitles the student to IDEA procedural
protections, including the convening of an IDEA team meeting prior
to the proposed placement change.29 This documentation, plus the
current evaluation of the student, should be before the juvenile
court when that process begins. IDEA provides that when a school
reports a crime alleged to have been committed by a child with a
disability, it must send copies of the child's special education and
disciplinary records to the "appropriate authorities" to whom it
reports the alleged crime.30 All of those documents should be before
the Court.
It is recognized that the prosecutor makes no determination whether
the child is entitled to the protections of IDEA, if the planned
action will violate the child's or the child's parents' rights under
IDEA, or to defer to the requirements of IDEA. Further, the Court
should not be in the position of making educational judgments,
including that of placement or program, that are properly made by
educational authorities. However, as a matter of fundamental
fairness, the Court should inquire whether the juvenile was afforded
the rights and protections available, including the development of
an assessment plan and a behavioral management plan and a
determination whether the behavior was a manifestation of the
child's disability. During disposition, these matters are relevant
in determining whether services in the community, including the
school, would be better suited in a specific case. The
constitutional and statutory rights of the juvenile with respect to
special education do not end upon the initiation of juvenile court
action.
The Incarcerated Juvenile
It is undisputed that the fact of incarceration in a juvenile
facility does not terminate a child's right to special education. In
Alexander S. v. Boyd31 the Court described the state's obligation to
children incarcerated in both pretrial detention and post
adjudication incarceration. With regard to children in pretrial
detention, the Court adopted the conclusion of the United States
Department of Education holding:
In the case of short-term, temporary confinement, the State may meet
its obligation under IDEA and Section 504. . . by implementing the
IEP from the previous school district or placement instead of
developing a new one. The IEP must be implemented to the extent
possible in the temporary setting. To the extent the implementation
of the old IEP is impossible, services that approximate, as close as
possible, the old IEP must be provided.32
In Arkansas, a juvenile detention facility and the school district
where the juvenile detention facility is located are designated as
responsible for educating the student consistent with federal and
state laws for any period of time the student is being held in the
facility.33
With respect to children in long term confinement, the Alexander S.
Court held that the state is obligated to develop a new IEP as soon
as the juvenile is transferred to one of the long-term institutions.
Once a juvenile is placed at the Youth Services Center, the State of
Arkansas is obligated as follows:
a. The physical facilities and programs at each of the youth
services centers shall be designed and developed to be particularly
suitable for the custody, care, education, and rehabilitation of
youths of particular classifications.
b. In classifying and committing youths to the various centers and
facilities, the Division of Youth Services shall take into
consideration the youth's age, sex, physical condition, mental
attitude and capacity, prognosis for rehabilitation, the seriousness
of the committing offense, and such other criteria as the division
shall determine.
c. The Director of the Division of Youth Services shall prepare or
cause to be prepared courses of study, including regular or special
courses in vocational skills suited to the age and capacity of the
youths, and shall employ teachers to teach such courses.
d. The courses of study taught shall conform to the established
guidelines for alternative learning environments or the minimum
standards prescribed for the public schools of the state, and the
students shall receive credit for courses completed in the
alternative learning environment or the same credit for completing
courses as students receive in public schools.
e. The youth services centers are declared to be educational
institutions and entitled to all the rights and privileges of other
accredited institutions of the state.34 (Emphasis added)
On a single day in February 2001 records of juveniles residing at
the Alexander Youth Services Center were reviewed. Of 80 records
reviewed the following disabilities were present:
conduct disorder 35
polysubstance abuse 33
learning disability 25
attention deficit hyperactivity dis. 20
mental retardation 19
major depression 13
adjustment disorder 13
sexual abuse/predator 11
antisocial personality traits 10
impulse control disorder 6
paraphilia 6
intermittent explosive disorder 6
alcohol addiction 4
mood disorder 3
social maladjustment 2
sexual abuse victim 2
disruptive disorder 2
cognitive disorder 2
sexual acting out 1
oppositional defiant disorder 1
post traumatic stress disorder 1
Turret's 1
schizotypal 1
There were a total of 216 diagnoses for the 80 juveniles involved.
100's - 5
90's - 8
80's - 20
70's - 25
60's - 10
50's - 1
In the below 80 IQ range of juveniles, the highest "crime" found to
have been committed is broken down as follows:
Y felony - 12
A felony - 3
B felony - 10
C felony - 7
D felony - 7
A or B misdemeanor - 9
Fully one half of the juveniles detained for "criminal behavior" at
Alexander on the survey date were low functioning in intelligence,
special education students, and diagnosed with multiple
psychological, mental, and emotional problems. There was no evidence
of an attempt to determine whether the "criminal behavior" was a
manifestation of a disability. There is little evidence that
required special education evaluations, including medical diagnosis,
were present at the facility or before the Court.
Present State of Special Education at Alexander Youth Services
Center
In a monitoring report dated October 5, 2001, the ADOE, Special
Education, found that the Alexander Youth Services Center was out of
compliance with a substantial majority of all state and federal
special education regulations. The violations found included the
following:
The district did not show evidence of a record being kept of all
school age children receiving special education.
There was insufficient evidence presented that the district has
maintained a file documenting child find location and identification
activities.
Due Process:
Referral forms reviewed in student due process folders were
incomplete.
There was insufficient evidence presented that initial notices of
all conferences are being written and mailed to parents.
There was insufficient evidence presented that prior notice is being
given to parents when the district proposes to initiate or change
the identification, evaluation, or educational placement of, or
provide free appropriate public education to student(s) with
disabilities.
Evidence indicates that the district did not adhere to specified
timelines in conducting due process activities.
In the review of student due process folders, there was insufficient
evidence that parents were being notified of decision(s) reached at
the conference(s).
Student folders contained insufficient documentation of reason(s)
for temporary placement.
There was insufficient evidence that the district is conducting
Functional Behavioral Assessments on students with disabilities
either before or not later than 10 business days after removing the
student for more than 10 school days in a school year or commencing
a removal that constitutes a change in placement.
There was insufficient evidence that the district is developing
and/or implementing Behavioral Intervention Plans for students
removed from the regular school setting for disciplinary infractions
for more than 10 school days during the school year.
Protection in Evaluation Procedures:
The review of student folders indicated incomplete evaluation data
on students determined to be emotionally disturbed.
The review of student folders indicated incomplete evaluation data
on students determined to be other health impaired.
The review of student folders indicated missing or incomplete
documentation of a statement of adverse affect on educational
performance.
There was insufficient evidence that the district is insuring that
the evaluation of each student with a disability is sufficiently
comprehensive to identify all of the student's special education and
related service needs, whether or not commonly linked to the
disability category in which the student has been classified.
Individualized Education Programs:
Evidence does not indicate that the district has developed and
implemented an Individualized Education Program for each identified
student with disabilities within the district.
There was insufficient evidence that Individualized Education
Programs are developed and in place prior to the student receiving
special education and related services.
Evidence indicated that parents are not afforded timely notice in
advance of the Individualized Education Program meeting(s) to insure
their opportunity to attend.
The district is not utilizing other methods to afford parents the
opportunity to participate in Individualized Education Program
meetings.
All Individualized Education Programs did not include appropriate
objective criteria and evaluation procedures and schedules for
determining, on at least an annual basis, whether the short-term
instructional objectives are being achieved.
Evidence indicated that components of Individualized Education
Programs were not developed to address the unique needs of
individual students.
Free Appropriate Public Education:
Some special education facilities are inadequate with regard to
health and safety standards.
The teacher/pupil ratios are not in accordance with the Arkansas
Department of Education standards for program approval.
In the review of student folders there was insufficient evidence
that related services are provided to all eligible students with
disabilities, as appropriate.
The district has presented insufficient evidence of a written
comprehensive plan to ensure the provision of related services to
any eligible student.
There was insufficient evidence presented that services provided to
disabled students are addressing all of the student's identified
special education and related service needs, and are based on
student's identified needs and not the student's disability
category.
Comprehensive System of Personnel Development:
The district has presented insufficient evidence of the provision of
annual personnel development activities.
The district has presented insufficient evidence of recruitment
activities to obtain qualified, appropriately certified/licensed
personnel.
The Alexander Youth Services Center has a long history of
violations of federal and state special education law (in addition
to the more publicized violations in other areas); however, the
latest monitoring reports clearly demonstrate a decline in
compliance with no improvement shown. A glaring deficiency is the
lack of certified teachers as required by both federal and state
law. A recent advertisement placed by the Center sought additional
teachers, "certification preferred." The certification is, of
course, mandatory, not preferable. Overall, the Center does not
provide an individualized education as required by law and does not
have record justification nor evaluation data on most students,
including those who are emotionally disturbed.
Conclusions:
Disability related behavior exhibited at school is often behavior
for which IDEA provides an elaborate scheme of discipline measures.
These are matters for the school system and not the juvenile court.
The discipline procedures include a manifestation determination, the
development of a behavior plan, the continuation of an educational
program in an appropriate setting, including an alternative setting,
an expedited hearing and provisions covering instances where a
student brings a dangerous weapon or drugs to school. By reporting
disability related behavior to juvenile authorities, the school
abdicates its statutory responsibility and washes its hands of the
child assuming that the juvenile system will accept all further
responsibilities for the child. When a school engages in this
behavior, it is improper and unlawful. Society is not well served
when, by action of a school, a child is thrust into the system which
is not equipped to deal with the education and other needs of the
child.
Improper referral of students eligible for special education to the
juvenile court system and the lack of special education and related
services throughout the juvenile system are challenges to all
branches of government and must be addressed now.
Endnotes:
120 U.S.C. § 1400 et seq.
2Ark. Code Ann. § 6-41-201 et seq.
320 U.S.C. § 1412(a)(1); 34 C.F.R. § 300.121; Ark. Code Ann. §
6-41-203.
420 U.S.C. § 1401(3); 34 C.F.R. § 300.7.
520 U.S.C. § 1414(d)(1)(A).
6Id.
7Sch. Comm. of the Town of Burlington v. Dept. of Educ. of Mass.,
471 U.S. 359 (1985).
834 C.F.R. § § 300.343(b)(2), 300.346(a)(1).
920 U.S.C. § 1401(22).
1020 U.S.C. § 1414(k); 34 C.F.R. • 300.519 et seq.
11The discipline provisions are found at 20 U.S.C. § 1415(k); 34
C.F.R. § 300.519-529; Procedural Requirements and Program Standards
(Ark. Dept. of Educ. 2000) Sec. 11.00.
12Independent School District No. 284 v. A.C., 258 F.3d 769 (8th
Cir. 2001).
13258 F.3d at 775.
1429 U.S.C. § 794; 34 C.F.R. § 104.33.
15Hickman County (TN) Sch. Dist., 34 IDELR. ¶ 294 (OCR 2000).
16Ark. Code Ann. § 9-27-330; § 9-27-332; § 9-27-335.
17Cabot Sch. Dist. 29 IDELR 300 (9/21/98).
1820 U.S.C. § 1415(k)(9).
19Ark. Code Ann. § 6-17-113.
20ACC-02-025.
21See, e.g., Mills v. District of Columbia Board of Education, 348
F. Supp. 866 (D. D.C. 1972); See also Board of Education of the
Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176 (1982).
22Honig v. Doe, 484 U.S. 305, 309 (1988) (Citing Legislative
History).
2320 U.S.C. § 1400(d)(1)(A).
2420 U.S.C. § 1414(k)(1)(B).
25Goss v. Lopez, 419 U.S. 565 (1975).
26Strickland v. Inlow, 519 F.2d 744 (8th Cir. 1975).
27During dependency of any proceedings, unless the state or local
education agency and the parents otherwise agree, the child shall
remain in the then current educational placement. 20 U.S.C. §
1415(j).
28Light v. Parkway C-2 School District, 41 F.3d 1223 (8th Cir.
1994).
2934 C.F.R. § 300.380-382; Procedural Requirements in Program
Standards (Ark. Dept. of Educ. 2000) Sec. 26.00.
3020 U.S.C. § 1415(k)(9)(B).
6 F. Supp. 773 (D. S.C. 1995).
32876 F. Supp at 153.31
33Procedural Requirements in Program Standards, (Ark. Dept. of Educ.
2000) Sec. 18.07.
34Ark. Code Ann. § 9-28-205. |
