Applying Special Education And Other Disability Rights On Behalf of Children In the Delinquency System

1. 12/15/2011 1 Applying Special EducationAnd Other Disability RightsOn Behalf of Children In the Delinquency System Joe Tulman - Jtulman@udc.edu

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3. 12/15/2011 3 More to the Point! To prevent dumping of children – particularly non-violent children – from other systems (education, mental health, child welfare, etc.) into the delinquency system and into incarceration; To educate incarcerated children appropriately; and To get children out of incarceration and to keep them out.

4. 12/15/2011 4 Coverage of the Presentation Introduction: Snapshot Picture of the Current Situation Individuals with Disabilities Education Act Substantive and Procedural Rights (Brief Overview) Remedies Stages of the Process; Stages of a Case Resources The Americans with Disabilities Act Relevant Supreme Court Cases

5. 12/15/2011 5 Coverage of the Presentation:Advocacy and Change Use of Special Education Advocacy in Regard to Individual Children Use of Special Education Advocacy for Systemic Reform Using the IDEA Well – Collision and Collusion on the Road to Integration (LRE) and Normalization

6. 12/15/2011 6 Coverage of the Presentation:Underlying Ideas Institutional “In’s and Out’s” Why and How Children With Disabilities Get to Institutions Ways to Get The Children Out How Our Decisions Discriminate Potential ADA-Based Challenges to Discrimination in Delinquency (and Criminal) Processing

7. 12/15/2011 7 The Current Situation Increased Incarceration Overall (Violence Down; Incarceration Up) Shift of Children… ? From School System to Delinquency (Rise of Zero Tolerance Policies) ? From Mental Health, Child Welfare… ? From Delinquency System to Criminal (Legislative Changes Lowering Age, Increasing Waiver) Bishop/Frazer et al.; NY/NJ studyBishop/Frazer et al.; NY/NJ study

8. 12/15/2011 8 Efficacy of Legal Challenges Challenges Based on Race and Class, Not Particularly Effective Advocacy Based on Disability Discrimination and Accommodation More Effective Legally, Politically, Rhetorically, Psychologically, and Practically (For Solving Problems)

9. 12/15/2011 9 Disparity and Discrimination:Arrest Rates Children with disabilities are 200% more likely to be arrested than non-disabled youth for comparable delinquent activity.

10. 12/15/2011 10 Disparity and Discrimination:Arrest Rates An estimated 18% of youth with MR, 31% of youth with LD, and 57 % of youth with SED will be arrested within 5 years of leaving high school.

11. 12/15/2011 11 Relationship Between Disabling Conditions and Delinquency At trial stage, children with disabilities are 220% more likely to be adjudicated than other children. At disposition, despite similar records of prior offenses, the term of incarceration and/or probation averaged 2-3 years longer for those with disabilities.

12. 12/15/2011 12 IDEA Eligibility Categories of Disabilities – Substantial Impact on Education “Child Find” Right Until Twenty-One (Plus) Effects of Diploma or G.E.D. “Compensatory Education”: Expanding Services or Extending Eligibility

13. 12/15/2011 13 Substantive and Procedural Rights Under the IDEA FAPE (Free Appropriate Public Education) LRE (Least Restrictive Environment) Mainstreaming & Inclusion Continuum of Services, Including 24-Hour IEP (Individualized Education Program) Related Services Transition Services FBAs/BIPs (Functional Behavioral Assessments and Behavioral Intervention Plans) Assistive Technology

14. 12/15/2011 14 Substantive and Procedural Rights, Continued Evaluation “in any area of suspected disability” Psycho-educational Clinical psychological Speech/Language Vocational Neurological Etc. Independent Evaluations Initial, Triennial -- and More Often

15. 12/15/2011 15 Substantive and Procedural Rights, Continued Child Find Parent’s – and Child’s – Right to Participate Right to School Records Stay Put Right to a Due Process, Administrative Hearing

16. 12/15/2011 16 Substantive and Procedural Rights, Continued Right to Counsel Right to Confront Right to Exclude Evidence Right to Record Burden of Proof on School System/Govt Right to Appeal, Bring Civil Action Discipline Protections

17. 12/15/2011 17 Remedies Under the IDEA Burlington and Carter Compensatory Education Attorneys’ Fees at Market Rate for Prevailing Parents Defining “Prevailing” Post Buckhannon

18. 12/15/2011 18 Special Education Advocacy: Stages of the Process Identification & Evaluation Eligibility IEP Placement Providing Services Annual Assessment & IEP Triennial Evaluation

19. 12/15/2011 19 Rights Under the IDEA School System – Exclusion and Zero Tolerance – No! Delinquency System – Must Educate Adult Criminal System – Must Educate* Incarceration – Before, During, and After... Must Educate *Exceptions “After” includes return to school and school administrators/personnel not blocking“After” includes return to school and school administrators/personnel not blocking

20. 12/15/2011 20 In the Adult Criminal System States must provide special ed. & related services to children in adult facilities Under ’97 Amendments, states may exclude from FAPE eligibility youth 18-21 in adult prisons/jails if: Youth not identified in educational placement prior to incarceration, or Youth did not previously have an IEP. Regarding youth aged 18-21 in adult prisons/jails, the states have no affirmative obligation to identify new special ed cases. State can take steps to exclude youth 18-21 if willing to forego proportional federal funding. Transition services not required for youth who will remain incarcerated past age of eligibility. State, through IEP team, can seek to modify an IEP if “bona fide security or compelling pedagogical interest” cannot be accommodated otherwise.

21. 12/15/2011 21 2004Amendments to the IDEA Full Document (190 pages)  http://www.copaa.net/IDEA/IDEA97-04COMP.pdf Summary Chart http://www.wcass.org/IDEA/IDEA%20Comparison%2097%20to%2004%20111704.pdf

22. 12/15/2011 22 Special Education Advocacy:Stages of a Case DUE PROCESS ADMINISTRATIVE HEARING at any time for any violation! Admin. Exhaustion Appeal to State or Federal Court

23. 12/15/2011 23 Resources ADDRESSING THE NEEDS OF YOUTH WITH DISABILITIES IN THE JUVENILE JUSTICE SYSTEM: THE CURRENT STATUS OF EVIDENCE-BASED RESEARCH, National Council on Disability (May 2003).   SPECIAL ED KIDS IN THE JUSTICE SYSTEM: HOW TO RECOGNIZE AND TREAT YOUNG PEOPLE WITH DISABILITIES THAT COMPROMISE THEIR ABILITY TO COMPREHEND, LEARN, AND BEHAVE, American Bar Association Juvenile Justice Center (September 2000).

24. 12/15/2011 24 Resources, Continued National Center on Education, Disability, and Juvenile Justice – Monograph Series (www.edjj.org) Deconstructing the School-to-Prison Pipeline (Fall 2003), www.josseybass.com Center for Law and Education, When Schools Criminalize Disability (2002) National Mental Health Association, Compendiuim of Best Practices (Http://www.nmha.org/children) National Center for Injury Prevention and Control (http://www.cdc.gov/ncipc/dvp/bestpractices.htm) Surgeon General’s Report on Youth Violence (http://www.surgeongeneral.gov/library/youthviolence/report.html)

25. 12/15/2011 25 Resources, Continued The National Center on Education, Disability and Juvenile Justice www.edjj.org Chart of Class Actions Around the Country Regarding IDEA/§ 504 Violations in Juvenile and Adult Incarceration Facilities www.edjj.org/litigation

26. 12/15/2011 26 Finding the ManualOn the Internet You can find the manual Special Education Advocacy under the Individuals with Disabilities Education Act (IDEA) for Children in the Juvenile Delinquency System at ***** http://www.law.udc.edu/programs/ juvenile/pubs.html#Manual

27. 12/15/2011 27 Promising Interventions(List from American Institutes for Research) Programs Identified By… Department of Justice Blueprints Initiative SAMHSA’s National Registry of Effective Programs DOE’s Safe, Disciplined, and Drug-Free Schools Program’s List of Promising and Exemplary Programs Surgeon General’s Report on Youth and Community Violence

28. Multisystemic Therapy

29. Multisystemic Therapy

30. 12/15/2011 30 The Applicability of the Americans with Disabilities Act % Young People with Disabilities in Delinquency Purposes & Provisions of the ADA Supreme Court Cases Yeskey Applicability of ADA to Prisoners Accommodation and Access to Services Olmstead Least Restrictive Environment Deinstitutionalization Lane Applicability of Title II of ADA, notwithstanding Garrett v. Alabama, to Access to Courts and Fundamental Rights

31. 12/15/2011 31 Use of Special Education Advocacy in Regard to Individual Children Getting the Educational and Special Education History Constant Failures; Students Not at Grade Level Finding the IDEA Violations CRAFTING AN IEP THAT WILL GET THE KID OUT and KEEP THE KID OUT!

32. 12/15/2011 32 Avoid or Terminate Unnecessary (Illegal?) Prosecutions Obtain Services Through Spec. Ed. System (Rather than Through Delinquency) Comparison with Families that Have Resources Intake Challenges Legal Basis for Getting Child Out of the Delinquency System Definition of “Delinquent Child” Move to Dismiss (for “Social Reasons” or Equivalent) Dispute Diversion and Other Intake Decisions Challenge Jurisdiction of the Delinquency Court Change of Placement (e.g., Morgan v. Chris L.) Failure to Exhaust Administrative Remedies (e.g., Truancy)

33. 12/15/2011 33 Enhanced Delinquency Defense Miranda Validity of Miranda Waiver (& Other Waivers) Transfer Hearing: Amenability to Treatment Failure to Provide Treatment & Services Unclean Hands of Government

34. 12/15/2011 34 Enhance Delinquency Defense Novel Aspects to Defense Exclusion from Evidence Challenging Inferences from Conversation Significance of Interrogation – Admission/Confession Law of Evidence, ADA, Due Process Reduced Culpability Specific Intent Mitigation at Sentencing Non-Culpability Aider & Abettor or Bystander/Witness? “No Show” Charge (Bail Reform Act) Need Expert Witness(es)

35. 12/15/2011 35 Block Incarceration orExtricate from Incarceration Spec. Ed. Services as Alternative to Detention or to Post-Disposition Incarceration Use the Continuum of Care in Special Education Avoid Preventive Detention Release with Conditions (Plan Prior to the New Case) Who is Being Detained? (Discriminatory Use in Individual Decisions) Mount an A.D.A. Challenge to Diagnostic Probation Officer’s or Judge’s Ignoring Child’s Needs (Disposition)

36. 12/15/2011 36 Block Incarceration or Extricate from Incarceration Re-Frame and Litigate Treatment Standard Applicable to Juvenile Incarceration Facility Mental Health Treatment = Adult Prison Standard? Witnesses Re. FBA & BIP, etc. Training Juvenile Prison Personnel to Help with IEP’s Legitimacy of Revocation Third-Party Contempt Challenge Failure to Provide Special Education Services In Juvenile Incarceration Facility State Prison or Jail Federal Bureau of Prisons Immigration Detention Chicken Bone or Case Aggregation

37. 12/15/2011 37 Systemic Ideas Training of Probation and Aftercare Workers Training of Mental Health, Teachers, and “Counselors” at Juvenile Incarceration Facility Training of Judges Re-Designing Intake Mental Health Screening to Separate Social Factors from Detention Criteria Limit Ability of PO’s and Judges to Override RAI End Reconsideration of Release and Contempt of Court Orders

38. 12/15/2011 38 Integrate the System of Care Stop Locking Up Kids for Social, Racial, and Education-Related/Disability Reasons Utilize Risk Assessment Process For Detention Standard, and… Separate Screening for Social Factors and Needs/Strengths Referral to Other Agencies Include Wraparound Voluntary for Child and Family Limit Ability of PO’s and Judges to Override RAI Social and Treatment Information Inadmissible Until Disposition Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative

39. 12/15/2011 39 A.D.A. Systemic Challenges Disparate Impact Rates of Prosecuting or Detaining Young People with Disabilities Rates of Waiving, Transferring Young People with Disabilities Disparate & Discriminatory Length of Detention, Sentences Right to Treatment Standard of Care Failure to Provide Access to Appropriate Services Federal Bureau of Prisons (not just state facilities) Liberty Implications (including “good time”)

40. 12/15/2011 40 A.D.A. ChallengesContinued Challenge Failure to Grant Probation or Parole Prevent, or Defend Against, Conditions Violation and Failure to Accommodate on Probation or Parole Raise Third-Party/Non-Party Civil Contempt (Interference with Ability to Comply with Probation) Argue Olmstead and Rehabilitation in Delinquency System

41. 12/15/2011 41 A.D.A. ChallengesContinued Motions Miranda Moran v. Burbine Colorado v. Connelly Competency Accommodations for People Who are Marginally Competent or Otherwise Disabled Failure to Accommodate in Trial Process Remember Lane

42. 12/15/2011 42 Article onDisability and Delinquency Disability and Delinquency: How Failures to Identify, Accommodate, and Serve Youth with Education-Related Disabilities Leads to Their Disproportionate Representation in the Delinquency System, is at http://www.law.udc.edu/programs/juvenile/pubs.html

43. 12/15/2011 43 Collision and Collusion on the Road to Integration (LRE) and Normalization Using the IDEA Well

44. 12/15/2011 44 RE-SHAPING THE SYSTEM:Beginning the Pendulum Swing BACK Overwhelming Caseloads for PD’s, Prosecutors, Probation Officer, Casemanagers, Counselors, Special Education Strategy Training Lawyers; Judges; Counselors; Others Attorneys’ Fees Case Aggregation and Mobilizing; (Lots of) Due Process Hearings Impact/Class Action Special Ed. Cases Impact/Class Action/Institutional Cases Expanded Budget, Poorly Allocated; Studies; Emerging Consensus?

45. 12/15/2011 45 RE-SHAPING THE SYSTEM:Integrating the System of Care Reversing the “Path of Least Resistance” Agency Silos and Financial/Budgeting Disincentives Treatment Disincentives (Pushing Out the “Difficult” Child Medicaid Funding (Including EPSDT) Wraparound-Diversion Initiative Risk Assessment Instruments Alternative Pathways Initiative Closing Institutions