Juvenile Justice and Special Education

1. Juvenile Justice and Special Education Connecticut Legal Services, Inc. Catherine Holahan, Esq.

2. 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).

3. 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.

4. 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.

5. Collaboration in Practice Connecticut Legal Services Collaborative Projects: Inner City Foundation Project (Bridgeport) Stop the School to Prison Pipeline Project (Waterbury & New Haven)

6. Collaboration in Practice Case Examples • “Daniel” • “Juan”

7. 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

8. 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)

9. 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.

10. 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

11. 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.

12. 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.

13. 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

14. 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.

15. 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.

16. 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).

17. School-Based Arrests Another way that schools use the juvenile justice system to address disciplinary issues is through school-based arrests.

18. 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))

19. 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

20. 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.

21. 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.

22. 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)

23. 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)

24. 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)

25. 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 onlyif the school had knowledge that the child had a disability before the conduct occurred. 20 U.S.C. 1415(k)(5)

26. 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)

27. 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

28. 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

29. 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.

30. 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.

31. 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.

32. 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.

33. 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?

34. 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?

35. 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?

36. 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?

37. 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