Handling a SCHOOL TICKETING Case

1. TEXAS RIOGRANDE LEGAL AID, INC. School-to-Prison Pipeline Pro Bono Project Handling a SCHOOL TICKETINGCase

2. What is the School-to-Prison Pipeline? • A trend where students are funneled out of public schools into the juvenile and criminal justice systems

3. SCHOOL DISCIPLINE – suspension, disciplinary alternative school (DAEP) & expulsion JUVENILE JUSTICE – juvenile detention or probation, “TYC” CRIMINAL JUSTICE – JP & municipal court (school ticketing cases), adult prison What are stops along the Pipeline?

4. Troubling Trends of the School-to-Prison Pipeline… • “Passing the Paddle” – overreliance of Class C misdemeanor ticketing as a school discipline tool • Over 275K non-traffic tickets issued to Texas youth every year • Students are more likely to dropout once ticketed • Increase in school police presence – 1 for every 250 kids, compared with 1 school counselor for every 437 kids • No legislative requirement to track school-based citations Existing (incomplete) data indicates: • Students of color and special education students are overrepresented • Most tickets issued by school police are for non-violent misbehavior

5. Common School Ticketing Offenses • Failure to Attend School– TX Educ. Code § 25.094 • Simple Assault – TX Penal Code § 22.01 • Disruption of Class* – TX Educ. Code § 37.124 • Disruption of Transportation* – TX Educ. Code § 37.126 • Disorderly Conduct* – TX Penal Code § 42.01 * Effective 9-1-11, charges for these offenses should NOT be brought against a student who engaged in the conduct when in the 6th grade or younger

6. Juvenile vs. JP/Municipal Courts • Most “School Ticketing” cases are heard in justice (JP) and municipal courts, which differ from juvenile courts in the following ways: • Level of Offense: Class C misdemeanors • Criminal, not civil like the juvenile courts • Can result in a finding of guilt, rather than a finding that a juvenile engaged in delinquent conduct/conduct in need of supervision (CINS) • No Automatic Appointment of Counsel • Punishment: up to a $500 fine, court costs, possibility of incarceration at age 17 for unpaid fines, community service and other requirements • Confidentiality

7. Example School Ticketing Charge: Failure to Attend School (FTAS) • TX Educ. Code § 25.094 defines Failure to Attend School as: • 3 or more unexcused days or parts of days within 4 weeks • 10 or more unexcused days or parts of days within 6 months • Schools can’t write tickets to students ages 10-11 or 18-21. • Schools must: • 1) Adopt “Truancy Prevention Measures,” and 2) Tell the court, in the complaint, the measures failed and whether student is eligible for/receives special education. • State law does not define “truancy prevention measures,” but you can argue that no measure, or only a token measure, was taken • Questions to ask: Was there a face-to-face meeting with the student and parent? with the counselor? Were any services not provided by the school that should have been, e.g. when a student was absent due to homelessness?

8. Example School Ticketing Charge: FTAS, cont’d • School districts must excuse some absences (e.g. court appointment, religious holiday, medical appointments) and may accept parent notes • State truancy laws may conflict with federal disability laws (Section 504, ADA) when a student has chronic medical issues • Even when a child’s truancy case is resolved, he/she may not be “out of the clear” because of The Ninety Percent Rule • A student cannot earn class credit unless in attendance at least 90 percent of the days the class is offered (See Texas Education Code Sec. 25.092 for exceptions and the appeals process)

9. Example School Ticketing Charge: Disruption of Classes • Texas Education Code § 37.124 defines the Disruption of Classes offense to include: “Emitting a noise of an intensity that prevents or hinders classroom instruction.” • Note: Such vagueness and room for discretion in the law leaves room for misuse and disproportionality.

10. Practice Points • Advise client to plead not guilty • Talk to prosecutor  try first for dismissal (prosecutor unlikely to dismiss outright w/a no contest/guilty plea) • Always consider intent • A finding from a special education proceeding may assist with your defense (e.g. a school’s determination that the child’s misconduct was a result of his/her disability). Ask the parent for special education documentation, if applicable. • Inform prosecutor/judge of special education or other services the student is receiving/has available through the educational system • You can argue that counseling services in school are more appropriate than court-mandated counseling • Affidavits of Non-prosecution and Statements of Inability to Pay Costs or Fines can help • If all else fails, go to trial!

11. Practice Points, cont’d Think about criminal implications – silence may be golden. • Principals ask students to write statements • No Miranda warnings required here • Parents ask kids to say “I’m sorry” • Complication: school discipline conference usually comes before the court date on the ticket and FERPA may not prevent later verbal communication between administrator and prosecutor • SO, get involved as early as possible! To transfer case or not to juvenile court? Be careful what you wish for – Juvenile court offers more services and confidentiality, but failing to comply with court orders opens up youth to consequences that are far more severe (drug testing, removal from home, etc.) than in JP/municipal court

12. Trial Basics in JP/Municipal Courts • Like other criminal trials, the State must prove its case Beyond a Reasonable Doubt • Defendant has a right to subpoena witnesses and to review the State’s evidence against him/her • Right a jury trial (jury made up of 6 people) • State and Defendant each have 3 peremptory challenges • Defendant has right to file motions (to invoke rule, produce witness statements and favorable evidence, motion in limine, etc.)

13. TRLA Youth Guide Series • For a detailed guide to defending children in JP and municipal courts, reference the 5 booklets in the TRLA Youth Guide Series: • Defending Against a Failure to Attend School Charge • Defending Against a Disruption of Classes Charge • Defending Against an Assault Charge • Defending Against a Disorderly Conduct Charge • Defending Children with Disabilities • Available online at www.trla.org/youthrights

14. Some policy solutions that have been proposed… • Eliminate school-based ticketing or, at least: • Adopt a school policy making ticketing the LAST resort • Repeal Disruption of Class/Transportation laws • Mandate campus/district-level ticketing data reporting • Remove schools’ incentive$ to issue tickets for truancy • Train police in de-escalation/crisis intervention training and how to work with special needs students • Implement school-wide Positive Behavioral Interventions & Supports (PBIS) • Make school-based arrests and use of force more transparent

15. Students with Disabilities • May have both a Class C ticket and a special education case • You can accept both cases (you don’t have to be a lawyer to advocate for a student at school meetings) OR • You can notify TRLA that there is a potential special education case so that we can advise the client

16. Students with Disabilities • Special Education: It’s Not What You Think • Common disabilities linked to the pipeline: • ADHD • PTSD • Oppositional defiance disorder • Severe anxiety or depression • Bipolar disorder

17. Individuals with Disabilities Education Act (IDEA) • Regulations start at 34 CFR §300.1 • Specialized instruction and services that are necessary for a child with a disability to have a “free appropriate public education” (FAPE). 20 U.S.C § 1412(a)(1) • May or may not include instruction outside of the regular classroom. • Students must be taught in the “Least Restrictive Environment (LRE)”

18. What Does FAPE Really Mean? Free Appropriate Public Education • based on the student’s unique individual needs • designed to enable the student to benefit from education • the student must be making progress • more than a minimal benefit is required for program to be appropriate • district does not have to provide the “best” education or one designed to maximize a student’s potential

19. Who is Eligible? • Children ages 3 - 21 • Has one of the enumerated disabilities and, “by reason thereof,” needs special education and related services. 20 U.S.C. 14101(3)

20. Eligible Categories Eligible disabilities include: • Intellectual disability • Serious emotional disturbances • Specific learning disabilities • Hearing impairments, including deafness • Speech or language impairments • Visual impairments, including blindness • Orthopedic impairments • Autism • Traumatic brain injury • Other health impairments, such as a terminal or chronic disorder or ADHD

21. What Are Special Education Services? • Specially designed instruction to meet the unique needs of a child with a disability. • Provided by public school districts at no cost to the family • Includes instruction conducted in the classroom, home, hospitals, institutions and other settings; • Includes instruction in physical education • Adaptive Physical Education (APE)

22. What Are Related Services? Related Services, provided by the district at no cost to the family, can include: • Transportation • Speech language pathology and audiology • Interpreting • Psychological services • Physical therapy • Occupational therapy • Therapeutic recreation • Counseling • Mobility services • Medical services for diagnostic or evaluation purposes • Health services • Social work services • Parent counseling and training • Other • See 34 C.F.R. § 300.34

23. How are children identified? • School may request that a child be evaluated • “Child Find” requirement • State must identify and evaluate ALL children with disabilities who are in need of special education and related services, including children with disabilities who are homeless or are wards of the state and children with disabilities attending private schools. • Parents may request that their child be evaluated • Independent Education Evaluation (IEE) is available if parent disagrees with the school’s evaluation

24. How does the child get services? • An Admission, Review and Dismissal (ARD) Committee meeting is held. The ARD Committee includes: • Parents and student, if appropriate • School district representative • Special education teacher • General education teacher • Someone qualified to interpret evaluations • Others invited by parent, student or school • 34 C.F.R. § 300.501

25. Individualized Education Plan • ARD Committee decides on the student’s Individualized Education Plan (IEP). The IEP is a document that includes: - Child’s present level of performance - Annual goals and short term benchmarks - Accommodations and modifications - Related services - Supplementary aids and services - Transition services (16+ years old) - Deliberations

26. IEP cont. • IEP may also include: • Extended School Year (ESY) services • Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) • Autism Supplement

27. Resolving Disagreements • ARD Process – parent may exercise right to a 10-day recess • Mediation - Texas Education Agency (TEA) provides this for free • TEA Complaint – must be filed within 1 year of the legal violation • Due Process Hearing – must be requested within 1 year when parent knew or should have known of the legal violation • Civil Action

28. Manifestation Determination Review • When a school wants to change a student’s placement for disciplinary reasons (10 days – consecutive or pattern of removals): • An MDR must be held within 10 school days of decision to change placement to determine whether the child’s conduct was either: • Caused by or had a direct and substantial relationship to his/her disability; OR • The direct result of the school’s failure to implement his/her IEP. • If so, schools generally can’t remove the child and must conduct a FBA and create, or review, the BIP. • MDRs also protects kids not in special education if the school knew about their disability!

29. Other Federal Disability Laws: Section 504 & the Americans with Disabilities Act (ADA) • Section 504 and the ADA apply to a broader group of students than the IDEA • They are anti-discrimination statutes, whereas IDEA is a law that requires funding recipients (i.e. public schools) to provide services • Must have a physical or mental impairment that impacts a major life activity. • Unlike under IDEA, a student’s disability does not have to negatively impact his/her educational performance to be protected by these laws.

30. 504/ADA cont. • Schools must give students with disabilities the opportunity to participate in or benefit from an aid, benefit or service that is given to students without disabilities. • Less formal process – “504 Plan” does not have to be in writing (but do it anyway!) • Good stop-gap while the school is completing the FIE • Example 504 Plan accommodation: School allows child with diabetes to snack in class to control blood sugar

31. More 504/ADA • Section 504 includes MDR protection • Complaint resolution options: • Impartial hearing at school (Section 504) • Office of Civil Rights complaint – 180 day SOL (Section 504) • Lawsuit – 2 year SOL (ADA and Section 504) • Student can get monetary damages that might not be available under IDEA

32. Practice Points for Special Education Cases (and negotiating in ARD meetings) • Get school records (FERPA says school has 45 days to provide them) • Know who the decision makers/allies are  If you want certain people at the meeting, ask! • Have an understanding of the family dynamics before entering the ARD meeting • Contact the school district’s attorney in advance to resolve/anticipate as many issues as possible • Focus on interests, not goals (both yours and theirs), and know your client’s BATNA • Expand the pie (invent options) • Try to engage everyone (people support what they create) and hold them accountable • Document all major decisions/requests!! • ASK QUESTIONS (even “dumb” ones) and don’t assume • Be flexible (waive unnecessary rules) • Reconvene if necessary

33. Court Involvement • Courts do not offer children receiving special education services the same due process protections as federal special education law • But remember, INTENT must be shown! – Provide prosecutor and/or judge with copies of favorable MDR findings…and ask for dismissal!

34. A few helpful resources… • Texas RioGrande Legal Aid Youth Booklet Series (on defending children in JP/Municipal courts) (www.trla.org/youthrights) • When My Child is Disciplined at School: A Guide for Families, Texas Appleseed (www.texasappleseed.net) • It’s a New IDEA: The Manual for Parents and Students About Special Education Services in Texas, Disability Rights Texas (www.disabilityrightstx.org)