Transcript Juvenile Justice and Special Education

Juvenile Justice and
Special Education
Connecticut Legal Services, Inc.
Catherine Holahan, Esq.
What is Collaboration?
Collaboration is a partnership
between professionals in the juvenile
court system (public defenders,
probation officers, social workers)
and advocates in the educational
system (civil legal services attorneys,
education advocates and school
district personnel).
Why is collaboration so
important?
1. Studies have shown that as many as
70% of incarcerated youth suffer
from one or more disabilities.
Source: OJDDP Juvenile Justice Bulletin, July 2000.
Why is collaboration so
important?
2.
–
“School to Prison Pipeline”
Schools are funneling children and youth into
the juvenile justice system:
Children with disabilities are more likely to be
disciplined at school through suspensions and
expulsions than children without disabilities.
Source: State Department of Education Strategic School Profiles
–
National trend of increased use of juvenile justice
system to address disciplinary issues, (i.e. FWSN
referrals and school-based arrests).
–
Exclusion from school for off-campus conduct.
Collaboration in Practice
Connecticut Legal Services Collaborative Projects:
Inner City Foundation Project
(Bridgeport)
Stop the School to Prison Pipeline Project
(Waterbury & New Haven)
Collaboration in Practice
Case Examples
• “Daniel”
• “Juan”
Intersections of Juvenile
Justice and Special
Education Laws
• Juvenile justice and special education laws
and systems overlap
• Properly navigating the juvenile justice and
special education systems can benefit
children with disabilities through:
– Increased school success and
– Better disposition in juvenile court
Juvenile Justice:
Family with Service Needs
(FWSN)
Definition of FWSN:
“[A] family that includes a child who (A) has without just
cause run away from the parental home or other properly
authorized and lawful place of abode, (B) is beyond the
control of parent, parents, guardian or other custodian, (C)
has engaged in indecent or immoral conduct, (D) is a truant
or habitual truant or who, while in school, has been
continuously and overtly defiant of school rules and
regulations.”
Conn. Gen. Stat. 46b-120(8)
Juvenile Justice: FWSN
• “Truant” = “a child age five to eighteen, inclusive, who is
enrolled in a public or private school and has four
unexcused absences from school in any one month or ten
excused absences from school in any school year.” Conn.
Gen. Stat. 10-198a.
• “Habitual truant” = “a child age five to eighteen,
inclusive, who is enrolled in a public or private school and
has twenty unexcused absences within a school year.”
Conn. Gen. Stat. 10-200.
Juvenile Justice: FWSN
Before making a FWSN referral, a
school must, at a minimum:
• Meet with parent and school
personnel to review reasons for
truancy; and
• Coordinate services and referrals of
children to community agencies.
Conn. Gen. Stat. 10-198a
Special Education:
Getting Services
“Child Find”: Federal and State laws
require school districts to identify
children with mental and/or physical
disabilities and to determine if they
require additional school services.
Special Education:
Getting Services
• Child Find
Federal Law:
Individuals with Disabilities Education
Improvement Act (IDEA 2004) requires that “all
children with disabilities . . . , regardless of the
severity of their disabilities, and who are in need
of special education and related services are
identified, located and evaluated . . .” 20 U.S.C
1412(a)(3)
State Law:
Connecticut Statute 10-76d is consistent with
federal law regarding child find.
Special Education:
Getting Services
• Connecticut State Regulations are even more
specific regarding “child find” requirements being
triggered by problem behaviors:
“. . . Provision shall be made for the prompt
referral to a planning and placement team of all
children who have been suspended repeatedly or
whose behavior, attendance or progress in
school is considered unsatisfactory or at a
marginal level of acceptance.”
CT State Reg. 10-76d-76
Juvenile Justice and
Special Education: FWSN
• The triggers for a FWSN referral and
“child find” are the same.
• Therefore, school districts responding to
behavioral problems through FWSN
referrals should also be considering
referrals to special education.
Juvenile Justice and
Special Education: FWSN
In fact, the FWSN referral process and statute both
recognize the intersection of juvenile justice and special
education.
When making a FWSN referral, school districts must:
• Document that an educational evaluation of the child has
been performed within the past year to assess the
appropriateness of child’s regular or special education
program, including referral to PPT for evaluation of special
education needs of the child.
• Provide dates of referral to a planning and placement team
(PPT), list of evaluations, determination of eligibility, date
of last revised individualized education program (IEP), and
last Annual Review.
Juvenile Justice and
Special Education: FWSN
• For students who are habitually truant
and have not been evaluated within the
preceding year, the court must order the
local or regional board of education to
perform an educational evaluation.
Conn. Gen. Stat. 46b-149(e).
School-Based Arrests
Another way that schools use the
juvenile justice system to address
disciplinary issues is through schoolbased arrests.
School-Based Arrests
• Factors Contributing to Increased
School-Based Arrests
– Increasingly harsh enforcement of
“zero tolerance” policies
– Increased police presence in schools
– State laws mandating referral to court
for certain infractions (e.g. FWSN
referrals pursuant to Conn. Gen. Stat.
10-198(a)(c))
School-Based Arrests
and Special Education
•
Special Needs: Can the Court be Notified?
–
IDEA does not prohibit a school district from reporting a crime
committed by a child with a disability to law enforcement.
20 U.S.C. 1415(k)(6)(A)
– IDEA does require that, when such a crime is reported, the district
“shall ensure that copies of the special education and disciplinary
records of the child are transmitted for consideration by the
appropriate authorities to whom the agency reports the crime.”
20 U.S.C. 1415(k)(6)(B)
– However, any disclosure of records must also comply with the Family
and Educational Rights and Privacy Act, which states that educational
records can only be shared if parent consents in writing.
34 C.F.R. 99.30
School Based Arrests
and Special Needs
• Too often students are referred to
law enforcement for conduct that
could be a manifestation of their
disabilities, and their Behavior
Intervention Plans (BIPs), which were
developed and approved by their
planning and placement teams (PPTs)
are disregarded.
Discipline and Special
Education
It is possible to discipline special
education students, but special
education students are entitled to
significant protections not available
to regular education students.
Discipline and Special
Education
Manifestation Determination
A special education student can be suspended for more than
10 days or expelled, but only if a PPT determines that the
conduct in question was not:
• a “manifestation” of the student’s disability; or
• the direct result of the school’s failure to implement the
student’s Individual Education Plan.
20 U.S.C. 1415(k)((1)(E)
Discipline and Special
Education
Interim Alternative Setting
Even if the behavior was a manifestation of the student’s
behavior, a student can still be moved to an “interim
alternative setting” for 45 days if the student:
– Brought a weapon to school or a school function
– Possessed or used illegal drugs or sold or solicited the
sale of drugs at school or at a school function
– Inflicted serious bodily injury upon another person at
school or at a school function
20 U.S.C. 1415(k) (1) (G)
Discipline and Special
Education
If a special education student is expelled or
placed in an interim alternative educational
setting, the student shall:
– continue to receive the services he/she needs to
continue to make educational progress
– receive, as needed, a functional behavioral assessment,
behavioral intervention services, and modifications,
designed to keep the behavior from occurring again.
20 USC 1415(D)
Discipline and Special
Education
Students Not Previously Found Eligible for Special
Education Services
If a school attempts to expel a student who has
not previously been found eligible for special
education, the student is entitled to the above
protections only if the school had knowledge
that the child had a disability before the
conduct occurred.
20 U.S.C. 1415(k)(5)
Discipline and Special
Education
Students Not Previously Found Eligible for Special Education Services
•
Basis of school’s knowledge:
– Parent of child expressed concern in writing to supervisory or
administrative personnel that child needs special education services; or
– Parent of the child requested an evaluation; or
– Teacher of the child or other personnel expressed specific concerns
about a pattern of behavior directly to the director of special
education.
20 U.S.C. 1415(k)(5)(B)
Discipline: Expulsions for
Off-campus Conduct
A student can be expelled for off-campus
conduct if the conduct is:
• Violative of a publicized school policy; AND
• “Seriously disruptive of the educational
process.”
Conn. Gen. Stat. 10-233d
Discipline: Expulsions for
Off-campus Conduct
“Seriously disruptive of the educational process”
•
Factors to be considered:
–
–
–
–
Whether the incident occurred within close proximity of a school
Whether other students from the school were involved
Whether there was any gang involvement
Whether the conduct involved violence, threats of violence or the
unlawful use of a weapon and whether any injuries occurred
– Whether the conduct involved the use of alcohol
Conn. Gen. Stat. 10-233d
Juvenile Justice and
Education: Off-campus
Conduct
Police records for off-campus arrests:
How can they be used?
There are limits on when police records regarding
juveniles can be shared with the school district –
too often records are shared improperly, violating
students’ right to confidentiality and resulting in
improper expulsion.
Juvenile Justice and
Education: Off-campus
Conduct
Connecticut law allows for police reports
to be shared with school districts only
for Class A misdemeanors, felonies and
one particular Class B misdemeanor
relating to “facsimile firearms”, but not
for other arrests.
Conn. Gen. Stat. 10-233h.
Juvenile Justice and
Education: Off-campus
Conduct
All other records related to
delinquency matters must remain
confidential, unless a court order
for disclosure is obtained.
Conn. Gen. Stat. 46b-124.
Juvenile Justice and
Education: Off-campus
Conduct
When a police report is shared properly, the
report may be shared only with the
Superintendent, who in turn may share the
report only with the Principal or supervisory
agent, who in turn may share it only with
specific staff for purposes of assessing risk of
danger of the student, necessary modifications
to the IEP or disciplinary measures.
Conn. Gen. Stat. 10-233h.
Key Questions/Red Flags
for Court Personnel
• Has the child ever been diagnosed
with a disability?
• Has the child ever had PPT meeting?
(for referral or services)
• Has the child been absent from
school for more than 20 days of the
school-year?
Key Questions/Red Flags
for Court Personnel
• Has the parent been asked to take the
child home early from school and/or asked
to keep the child at home instead of
sending him/her to school?
• Has the child been suspended for more
than 10 days, expelled, or getting into
continuous trouble in school?
Key Questions/Red Flags
for Court Personnel
• Is the child receiving special education services?
– If yes,
• are those services meeting his/her needs and/or has the
child ever been denied a requested evaluation?
• Does the child have a behavior intervention plan at school?
– If no, has the child ever been found ineligible for special
education services, and/or has the child ever been
denied a request for referral/evaluation for special
education services?
Key Questions/Red Flags
for Court Personnel
• Has the child ever been hospitalized for
mental health reasons or placed in a
clinical day treatment program?
• Is the child not getting access to basic
mental health care?
• Does it appear that the child does not
have a thorough evaluation or proper
diagnosis of his/her mental
health/emotional problems?
Conclusion
• Properly navigating the juvenile
justice and special education systems
can benefit children with disabilities
through:
– Increased school success and
– Better disposition in juvenile court