SPECIAL EDUCATION ADVOCACY Under the Individuals with Disabilities Education Act (IDEA) For Children in the Juvenile Delinquency System Edited by Joseph B. Tulman & Joyce A. McGee Produced by The University of the District of Columbia School of Law Juvenile Law Clinic Sponsored by The Annie E. Casey Foundation Juvenile Detention Alternatives Initiatives _______________ SPECIAL EDUCATION ADVOCACY UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) FOR CHILDREN IN THE JUVENILE DELINQUENCY SYSTEM COPYRIGHT © 1998 All rights reserved. _______________ Copies are available for $15.00 each (includes Postage & Handling). Send payment (check or money order payable to D.C.S.L. Foundation) to Professor Joseph B. Tulman, University of the District of Columbia School of Law, 4200 Connecticut Ave., N. W., Building 38, Room 207, Washington, D.C. 20008. Also available from the above address for $5.00 each: SYMPOSIUM: THE UNNECESSARY DETENTION OF CHILDREN IN THE DISTRICT OF COLUMBIA, produced by the District of Columbia Law Review, (with articles applicable to delinquency detention in any U.S. jurisdiction). Acknowledgments joined this project in 1997 in order (1) to T include in the manual information from and references to the 1997 amendments to the his manual is a product of the vision IDEA, (2) to provide a core version of the chapter on discipline, delinquency, and and financial support of people at the Annie disability, and (3) to apply their unique E. Casey Foundation through its Juvenile expertise in education law to ensure that the Detention Alternatives Initiative. Many presentation of the law in this manual is thanks to Bart Lubow and Maurice Moore of accurate. the Annie E. Casey Foundation for their Susan E. Sutler ("Suji"), a colleague on patience, support, and guidance through the the faculty of the Juvenile Law Clinic, was process of our producing this manual. We the principal author of Chapter Nine: The have received additional financial support Special Education Process: Individualized for editing and formatting the manual from Education Program (IEP). Through the Tracey Hughes and David Stern and from decade of the 1990's, Suji has worked with the Jerry M. Fund. law students in the clinic as she helped to Mary Hynes, a colleague on the faculty of develop strategies for applying special the Juvenile Law Clinic and my principle education law and practice to advance the co-author in this project, wrote much of the cause of children in the delinquency system text presents and elucidates special and to champion, as well, the interests of the education law. An expert in both special parents of those children. education law and child welfare (neglect) Milton C. Lee, Jr. ("Tony"), a former law, Mary spends much of her time using colleague on the faculty of the Juvenile Law special education law on behalf of children Clinic, co-authored Chapter Two: Strategies and families, including foster parents, who for Using Special Education Law to are involved in the child welfare system. Improve the Outcome of an Individual Joyce McGee entered the Juvenile Law Delinquency Case. Tony brought to our Clinic in the Spring of 1997; soon thereafter, clinic unparalleled zeal and irrepressible in addition to becoming the Editor-in-Chief humor. The consummate public defender, of the University of the District of Columbia Tony is now "neutralized" as a hearing Law Review, she became my co-editor of commissioner on the bench of the District of this manual. Displaying an uncanny ability Columbia Superior Court. to mince words, turn phrases, and punctuate Numerous people have provided sentences, she weeded through these pages. assistance in this project, helping us to Her more profound contribution, however, understand, formulate, and frame the issues, was turning "dry legal scholarship" into an arguments, assertions, and insights that entertainingly-formatted publication. Joyce appear in the manual. Particularly, we knows how to use publishing software. extend our thanks to Loren Warboys, Susan Thank goodness! Eileen Ordover and Kathleen Boundy of the Center for Law and Education also Acknowledgments Burrell, and Marc Schindler of the Youth of Children in the District of Columbia”, we Law Center; Glenn Young of the National received support from The Robert F. Institute For Literary; and Dean Rivkin of Kennedy Memorial Foundation and from the the University of Tennessee School of Law. Annie E. Casey Foundation. We apologize for not including the names of – Joe Tulman all of the other people who have contributed. For inaccuracies and other blunders, we accept the responsibility, and we encourage readers of this manual to contact us with corrections and suggestions. For their support as co-conspirators, collaborators, and confidantes, my thanks go to Mark Soler of the Youth Law Center, Pattie Puritz and Wendy Shang of the American Bar Association Juvenile Justice Center, Vinny Schiraldi of the Justice Policy Institute, Ellen Wayne and Leila Peterson of the Institute for Conflict Analysis and Resolution, and, or course, scores and scores of law students who labored in the Juvenile Law Clinic during the last twenty semesters in which we have experimented with using special education to advocate on behalf of the children in the District of Columbia delinquency system. For continuing support of our work in the Juvenile Law Clinic, including support for our advocacy on behalf of children with education-related disabilities who are in the child welfare system, we thank The Eugene and Agnes E. Meyer Foundation. We have also received support for our special education/delinquency advocacy work from The Public Welfare Foundation, The Legal Services Corporation, and The Freddie Mac Foundation. For our work to reduce detention rates in the District of Columbia – specifically, to support the organizing, writing, editing, convening, and printing of the symposium “The Unnecessary Detention Introduction provides a path to productivity and to T acceptance. Advocates who read and use this manual he intended audience for this manual can be catalysts or change agents who help move children from delinquency systems is defense attorneys who represent children back into educational systems that, in turn, in delinquency matters and in status can lead those children to jobs and, when offenses; the intended audience includes appropriate, to higher education. This also disability rights attorneys and other manual is a "how-to" presentation for that public interest attorneys with an interest in effort. Moreover, the IDEA furnishes a representing children who are enmeshed in financial incentive for advocates to use the delinquency system. special education law on behalf of children Children strive to be productive in the delinquency system: the IDEA and to be accepted. Children who are provides for attorneys' fees at market rate for marginalized and considered to be those who prevail in asserting special delinquent are, in large proportions, education rights. also children with education-related Having prepared this manual under the disabilities. Typically, children in the auspices of the Annie E. Casey Foundation's delinquency system "failed" in the Juvenile Detention Alternatives Initiative education system before entering the (JDAI), the authors focused particularly on delinquency system. case precedent from the Second, Seventh, Adults responsible for delinquency and Ninth Circuits -- circuits with JDAI systems and educational systems across the sites. Lawyers who use this manual should country have an opportunity to help make search, whenever appropriate, for additional those marginalized, delinquent children binding and persuasive authority. productive and accepted. Faculty and law students in the Juvenile The advocacy described in this manual Law Clinic of the D.C. School of Law have revolves around the Individuals with been using special education advocacy Disabilities Education Act (IDEA), a federal under the IDEA for the majority of the law incorporated into state law in all fifty clinic's delinquency clients since 1990. This states and in the District of Columbia. manual reflects the experience of those (Other laws are relevant to the enforcement clinicians. The authors present case of educational rights for children with examples, strategies, and theories with the disabilities, notably -- in the federal law -- expectation that they will be useful to section 504 of the Rehabilitation Act and the advocates throughout the country. At the Americans with Disabilities Act. With only same time, the authors acknowledge a few exceptions, however, the authors have emphasizing some laws and practices not addressed or presented those laws in this peculiar to the District of Columbia, and manual.) The IDEA protects children with they trust that this bias will not deter or education-related disabilities, affording distract the reader. them a right to a free, appropriate public education. This central right under the IDEA Dedication MANUAL LABOR Dedicated: CHILD Enforcers, executives, and executioners exigently escort. . . (against essentially nonexistent resistance) . . . adolescents into jails and prisons, amidst reports that the juvenile courts lie dying at the age of one hundred. Pundits, politicians, and professionals proudly produce . . . (while plundering the public’s profits and progeny) . . . “predators” for the minds in manors, and the tycoons are reduced to buffoons, hands standing in the pens of iniquity. Mothers, schoolmasters, and youth-managers mustn’t misunderstand . . . (despite massive media imaginings, imagings) . . . minors shown on screens and bulk prints who, at the start, in the head and the heart, need teaching in the stead of constraining. – JBT ‘98 Table of Contents Chapter 1: The Best Defense is a Good Offense: Using Special Education Advocacy for Delinquency Clients I The objectives: Getting children educated; getting children out of detention; getting children out of the delinquency system II The Problem: Incarcerating children unnecessarily, particularly children with disabilities A. The prevalence of special education needs among children in the delinquency system B. The failure to address educational needs of pre-delinquent and court-involved youth III Client service considerations: Whether and how to use special education advocacy for delinquency clients Chapter 2: Strategies for Using Special Education Law to Improve the Outcome of an Individual Delinquency Case I Using special education in support of a motion to dismiss for lack of jurisdiction A. Status offense cases B. Delinquency cases II Using special education in support of a motion to dismiss for social reasons III Using special education during the intake process IV Using special education as a justification for keeping the child in the community V Using special education rights to guide the residential placement process for delinquent youths VI Using special education evaluations to demonstrate that a child with a disability did not or could not comprehend Miranda Warnings Strategic Overview • Steps to Special Education Advocacy • Steps to Special education Advocacy For a Delinquency Case • Preliminary Steps and Organizing Actions • Steps to Take in an Individual Case • Summary of Strategies for Obtaining Release from Detention or Other Incarceration For Delinquency Clients • Gerald’s cases: A comprehensive joint special education and delinquency legal strategy • Ray’s cases: Designing a meaningful comprehensive IEP Table of Contents Chapter 3: An Organizing Strategy for Children’s Advocates: Combining Special Education with Delinquency Representation I Case aggregation strategy II Roles of persons in the juvenile justice system A. The child B. The defense attorney: Ethical problems C. The parent or guardian D. The judge E. Prison personnel and youth services workers Chapter 4: Delinquency, Discipline and Disabilities I School personnels’ programmatic obligations towards students with behavioral issues II Basic student rights in school discipline A. Procedural due process B. Searches and investigations C. Disability discrimination in investigations D. Case histories III Disciplinary exclusion under the IDEA as amended A. Legal background B. Disciplinary exclusion as a change in placement C. Supplementary rights and procedures in disciplinary exclusion: Manifestation reviews D. Disciplinary exclusion of students accused of conduct involving drugs, weapons or dangerous behavior E. Notice, hearing and “Stay-put” rights under the IDEA as amended F. IDEA rights of students not previously determined eligible for special education and related services G. Exclusions of ten days or less under the IDEA IV Disciplinary exclusion under § 504 and the ADA V School-filed crime reports and delinquency petitions A. Morgan v. Chris L. B. IDEA amendments of 1997 Table of Contents Chapter 5: Special Education Rights for Juveniles Young Adults in Adult Detention Facilities I The IDEA and children incarcerated in juvenile facilities II The IDEA and children incarcerated in adult corrections facilities A. Children aged eighteen through twenty-one B. All children incarcerated in adult facilities III Using the IDEA in representing children in delinquency matters or in criminal cases: Getting them out and keeping them out of incarceration A. In general B. Oliver’s case: Using special education advocacy to extricate a child from a delinquency incarceration facility C. Using special education advocacy on behalf of young people facing incarceration in adult facilities IV Running into walls on the way to prison deconstruction V Conclusion Chapter 6: The Special Education Process: Eligibility & Entitlement I Eligibility A. The IDEA: The basic federal law for children with disabilities affecting education B. The Rehabilitation Act II Entitlement A. The statutory and regulatory entitlement B. The Supreme Court’s definition of FAPE Chapter 7: The Special Education Process: Investigating and Initiating the Special Education Case I An overview on investigation A. Preparing a chart and a time line B. Engaging an expert witness or consultant C. Interviews: People to see and questions to ask D. Documents to obtain II The parent as client: Understanding the consequences of joint representation III Developing a theory of the case A. Developing a special education theory B. Developing a special education theory applicable to the Delinquency case: A reminder of the advantages in understanding special education advocacy for delinquency clients Table of Contents Chapter 8: The Special Education Process: Evaluations I Understanding diagnosis and educational testing A. Serious Emotional Disturbance (SED) B. Specific Learning Disabled (SLD) C. Mental Retardation (MR) D. Other Tests II Procedures related to testing Chapter 9: The Special Education Process: Individualized Educational Program I Parent participation II Purpose of the IEP conference III Contents of the IEP IV Transition Services A. Goals of transition planning B. Transition planning C. Other legal resources for transition services V Preparing for the IEP VI The IEP Conference and Its Participants A. When parties disagree B. Follow-up to the IEP conference Chapter 10: The Special Education Process: Placement I Continuum of alternative placements II The least restrictive environment III Residential placements Chapter 11: The Special Education Process: Due Process Rights I Records II Independent evaluations III Notice IV Consent and surrogate parents V The “Stay Put” provision