Youth with Intellectual and Developmental Disabilities: Education and the Juvenile Justice System

1. Youth with Intellectual and Developmental Disabilities: Education and the Juvenile Justice System May 27, 2016: 3 p.m. EST Presenters: Selene Almazan, Legal Director, Council of Parent Attorneys and Advocates Diane Smith Howard, Senior Staff Attorney for Education and Juvenile Justice, National Disability Rights Network 

2. School to Prison Pipeline “The United States …school-to-prison pipeline is a term used to describe the increasing patterns of contact students have with the juvenile and adult criminal justice systems as a result of the recent practices implemented by educational institutions, specifically zero tolerance policies and the use of police in schools.”

3. School to Prison Pipeline Factors (include but are not limited to): • Formal School Removal • Informal School Removal/Pushout • School Based Arrest/Juvenile Petitions • Disaffection • Unaddressed Needs (Disability, Trauma, Etc.)

4. Who’s In The Pipeline? National Suspension Rates (K-12) • 1:6 Black schoolchildren suspended at least once - Much higher than 1 in 20 (5%) for Whites • More than 13% of students with disabilities were suspended-- twice the rate of their non-disabled peers • One out of every four Black children with disabilities was suspended

5. Impact of School Removal • Three million kids lost instructional “seat time” • That’s about the number of children it would take to fill every seat in every major league baseball park and every NFL stadium in America, combined. • Suspensions are among the leading indicators of whether a child will drop out of school; increases a child’s risk for future incarceration. • https://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/federal-reports/upcoming-ccrr-research

6. Juvenile Justice Implications

7. Long Term Impacts • Status Offenses can lead to placement • Evidence collected at school/interrogation can migrate • Impact on college applications; military; jobs • Medication/Service Disruption • Disaffection/Peer Group Affiliation Change • Separation from family, community, positive peers • May prevent return to school (illegal)

8. Juvenile Proceedings • Serious (generally) violations may result in reports to law enforcement and prosecution • Educational records related to incident, investigation and determination of culpability may be made available to law enforcement

9. Juvenile Rights at the School • Right to remain silent • Right not to incriminate yourself • Right to counsel • All of these rights can be invoked at the school level

10. Representation in Juvenile proceeding • Does the student have counsel for the juvenile proceeding? • Quickly contact counsel to determine: • if there is shared discovery available • Juvenile counsel’s concerns about student statements in juvenile hearing • Ability of juvenile system to manage problem

11. Utilize educational system to avoid juvenile impact • Educational interventions are more precise • Educational interventions are funded by school system not by the court • Educational interventions are ongoing and reevaluations are built into the law.

12. Formal School Removal Suspension/Expulsion

13. Types of Removal • Short term suspension - less than 10 days Limit of authority of principal • Long term suspension – greater than 10 days Requires approval of superintendent • Expulsion– generally removal for remainder of school term and approved re-entry

14. Protection of all Students • Goss v. Lopez, 49 U.S. 565 (1979) • Public education is a property interested protected by the 14th amendment • Suspension or expulsion impact on student’s liberty interest and consequently student entitled to due process protection

15. Are all discipline removals entitled to Goss protections? • Extent of due process is based on length of removal • Suspensions for less than 10 days are entitled to limited statutory protections

16. Disciplineand Disability • Paradigm Shift • Development of legal protections for Students with Disabilities • Understanding the relationship between disability and behavior • Creating a positive means of changing behavior

17. Providing appropriate services is not “special treatment” • Understanding and overcoming the issue of “special treatment” • Slowing down the process • Creating an atmosphere for conversation • Recognizing the severity of the conduct where appropriate

18. Behavior Framework • TRADITIONAL • Reactive • Focus on Consequences • Behavior = Who the student IS • CURRENT • Proactive • Focus on Setting and Prevention • Behavior = Communication

19. What if Student doesn’t have an IEP • Section 504 – yes manifestation applies • Obtain school system rules • Have they updated their 504 regulations • Suspected students under IDEA • Written request for special education or evaluation • School employee made referral

20. Students suspected but not yet identified as needing an IEP • Student is entitled to the procedural protections of the IDEA if the school had knowledge in accordance with 34 CFR 300.534 (b) that the student had a disability before the behavior occurred. • Knowledge is presumed if: • parent/legal guardian has expressed concern in writing to the appropriate agency that their child is in need of special education and related services, or • parent/legal guardian has requested an evaluation of the student pursuant to the IDEA, or

21. Students suspected but not yet identified as needing an IEP • child’s teacher, or other school personnel, have expressed a concern about the behavior or performance of the child to appropriate school personnel in accordance with the agency’s special education referral system.

22. Federal Protection • 10 day removal for disciplinary reasons is change in placement. Honig v. Doe 484 U. S. 305 (1988) • 10 day change in placement has been incorporated into the IDEA which provides additional procedural protections for students with disabilities who are proposed to be removed from school for greater than 10 days

23. IEP & Behavioral Supports • Behavior must be addressed in the IEP if the behavior is a potential problem in planning an appropriate education. • The regular education teacher must be a part of the development of appropriate positive behavioral interventions, strategies, and supports if the child is part of a regular education class. • A functional behavioral assessment must be conducted, also known as an FBA. A behavior intervention plan (BIP) must be developed from the FBA. (COPAA 465-466)

24. Evidence Based Alternatives • There are alternatives to school removal • PBIS • Restorative Justice • Many school districts have made the switch with good results

25. Functional Behavior Assessment Why: To determine the purpose served by the behaviors displayed by an individual and to understand the events that instigate the behavior and motivate the person.  

26. Functional Behavior Assessment ASSUMES: The motivation for the behavior represents a need, and in using the behavior, the student is communicating a message. • PREMISE: Behavior is learned, reinforced by the consequences that typically follow it, and is affected by other factors such as social stress, physical conditions, environmental changes, and interpersonal conflicts.

27. Functions of Behavior Tangible Social/Attention Sensory

28. Summary Statements • When… (immediate triggers/ antecedents) • The behavior(s) occur • In order to… (function served/outcome) • This is more likely to occur when(setting events)

29. Behavior Intervention Plans • Prevention Supports • Teaching Strategies • Response Strategies

30. Behavioral Intervention Plan Prevention Strategies • Accommodations • Instructional Modifications • Program Modifications • Supplementary Aids & Services

31. Behavioral Goals REPLACEMENT BEHAVIOR (gain attention) • When required to sit and listen or complete seatwork, Marcus will raise his hand to gain teacher attention (avoid work) • During seatwork, Marcus will use a “fast pass” to request a 5-minute break in order to escape work. DESIRED BEHAVIOR • Marcus will remain engaged in classwork throughout the class period.

32. Informal School Removal

33. Informal Removal: Some Methods • “Sent homes” • Homebound/Tutoring • Virtual Schools • Alternative Schools • In school suspension without services • Shortened School Day

34. School Resource Officers

35. SROs: Success • Clearly defined duties • Role limited to law enforcement tasks re: school safety • Clarity around evidence and interrogation standards • Presence of school counselors and others to provide students support • Positive School Climate • Clarity around use of restraint and seclusion.

36. Restraint and Seclusion in Schools

37. Assumption Restraints and seclusion keep the people we serve safe

38. Reality • Edith Campos, 15, suffocated while being held face-down after resisting an aide at the Desert Hills Center for Youth and Families. • Edith’s offense? • Refusing to hand over an “unauthorized” personal item. The item was a family photograph. (Lieberman, Dodd, & De Lauro, 1999)

39. Assumption Unit staff know how to recognize a potentially violent situation (Mohr & Anderson, 2001)

40. Reality • Holzworth & Wills (1999) conducted research on nurses’ decisions based on clinical cues of patient agitation, self-harm, inclinations to assault others, and destruction of property • Nurses agreed only 22% of the time

41. “The breach between what we know and what we do [can be] lethal.” Kay Redfield Jamison Night Falls West

42. What are Restraints?

43. Risks Associated with Restraint Positional Asphyxia Predisposed when in prone (face down) position Aspiration Predisposed when in supine (face up) position Blunt Trauma to the Chest Cardiac arrhythmia leading to sudden death Catecholamine Rush Result of escalating agitation producing heart rhythm disturbances Rhabdomylosis Break down in muscle cells due to strenuous exertion. Psychotropic Medications Neuroleptics increase risk of sudden death (2.39 times) Antidepressants increase QT interval associated with Sudden Death Many medications inhibit body’s cooling mechanisms Thrombosis Fatal pulmonary embolism due to being immobile for long periods of time Psychological Trauma Physical Injury(Staff & Students) (Moore, Petti & Mohr, 2003)

44. Seclusion Seclusion is the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.

45. Types of Timeout Inclusion in the classroom (Not generally a problem) Exclusion outside the classroom Seclusion in a special room or location & prevented from leaving

46. Risks Associated with Seclusion Potential Death, Trauma, Injury: Lack of Supervision Inadequate Safety of environment No evidence Procedure are Therapeutic & Might Actually Escalate Behavior Students consistently perceive seclusion as punishment Overuse results in lack of access to instruction, denial of FAPE Potential Disparity of Treatment (Disproportionality).

47. Research on Restraint and Seclusion in the Schools Beyond our scope for today, but—lack of empirical research supports use of & physical restraint or seclusion as a strategy to change behavior… Must change paradigm to trauma informed, positive practice

48. Quick Facts on Restraint and Seclusion in U.S. Schools • At least 12 states and all U.S. territories, except the District of Columbia, do not have any state policies or guidelines addressing seclusion and restraint in schools. Many states have minimal or questionable policies. • Despite state policies, lack of evidence, and known danger - restraint and seclusion remain Common in Schools • Change at the state policy level has not resulted in reduction of use • Restraint and seclusion have resulted in physical injury, psychological trauma and death to children in public and private schools. • Children are subject to physical restraint and seclusion at higher rates than adults. • Research shows that physical restraints and seclusion are not therapeutic nor are they an effective means to calm a child or teach a child; often having the opposite effect which decreases a child’s ability to learn.

49. Data show: • 70,000 students were physically restrained and 37,000 were secluded • 4,000 students with disabilities were mechanically restrained • Students with disabilities represent 12% of students enrolled in public schools, but represent 75% of students physically restrained in public schools. • Disproportionate use on students of color and young children • Source: CRDC Data (2011-12)

50. Constitutional Claims Section 1983 Fourth Eighth Eleventh Fourteenth