Special Education Advocacy ManualSPECIAL EDUCATION ADVOCACY Under the Individuals with Disabilities Education Act (IDEA) Edited by Joseph B. Tulman & Joyce A. McGee Produced by The

SPECIALEDUCATIONADVOCACY

Under the Individualswith DisabilitiesEducation Act (IDEA)

Edited by

Joseph B. Tulman& Joyce A. McGee

Produced by

The University of the Districtof Columbia School of LawJuvenile Law Clinic

Sponsored by

The Annie E. Casey FoundationJuvenile DetentionAlternatives Initiatives

For Children in the Juvenile DelinquencySystem

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SPECIAL EDUCATION ADVOCACYUNDER 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).

AcknowledgmentsThis manual is a product of the vision

and financial support of people at the AnnieE. Casey Foundation through its JuvenileDetention Alternatives Initiative. Manythanks to Bart Lubow and Maurice Moore ofthe Annie E. Casey Foundation for theirpatience, support, and guidance through theprocess of our producing this manual. Wehave received additional financial supportfor editing and formatting the manual fromTracey Hughes and David Stern and fromthe Jerry M. Fund. Mary Hynes, a colleague on the faculty ofthe Juvenile Law Clinic and my principleco-author in this project, wrote much of thetext presents and elucidates specialeducation law. An expert in both specialeducation law and child welfare (neglect)law, Mary spends much of her time usingspecial education law on behalf of childrenand families, including foster parents, whoare involved in the child welfare system. Joyce McGee entered the Juvenile LawClinic in the Spring of 1997; soon thereafter,in addition to becoming the Editor-in-Chiefof the University of the District of ColumbiaLaw Review, she became my co-editor ofthis manual. Displaying an uncanny abilityto mince words, turn phrases, and punctuatesentences, she weeded through these pages.Her more profound contribution, however,was turning "dry legal scholarship" into anentertainingly-formatted publication. Joyceknows how to use publishing software.Thank goodness!

Eileen Ordover and Kathleen Boundy ofthe Center for Law and Education also

joined this project in 1997 in order (1) toinclude in the manual information from andreferences to the 1997 amendments to theIDEA, (2) to provide a core version of thechapter on discipline, delinquency, anddisability, and (3) to apply their uniqueexpertise in education law to ensure that thepresentation of the law in this manual isaccurate. Susan E. Sutler ("Suji"), a colleague onthe faculty of the Juvenile Law Clinic, wasthe principal author of Chapter Nine: TheSpecial Education Process: IndividualizedEducation Program (IEP). Through thedecade of the 1990's, Suji has worked withlaw students in the clinic as she helped todevelop strategies for applying specialeducation law and practice to advance thecause of children in the delinquency systemand to champion, as well, the interests of theparents of those children. Milton C. Lee, Jr. ("Tony"), a formercolleague on the faculty of the Juvenile LawClinic, co-authored Chapter Two: Strategiesfor Using Special Education Law toImprove the Outcome of an IndividualDelinquency Case. Tony brought to ourclinic unparalleled zeal and irrepressiblehumor. The consummate public defender,Tony is now "neutralized" as a hearingcommissioner on the bench of the District ofColumbia Superior Court. Numerous people have providedassistance in this project, helping us tounderstand, formulate, and frame the issues,arguments, assertions, and insights thatappear in the manual. Particularly, weextend our thanks to Loren Warboys, Susan

AcknowledgmentsBurrell, and Marc Schindler of the YouthLaw Center; Glenn Young of the NationalInstitute For Literary; and Dean Rivkin ofthe University of Tennessee School of Law. We apologize for not including the names ofall of the other people who have contributed. For inaccuracies and other blunders, weaccept the responsibility, and we encouragereaders of this manual to contact us withcorrections and suggestions. For their support as co-conspirators,collaborators, and confidantes, my thanks goto Mark Soler of the Youth Law Center,Pattie Puritz and Wendy Shang of theAmerican Bar Association Juvenile JusticeCenter, Vinny Schiraldi of the Justice PolicyInstitute, Ellen Wayne and Leila Peterson ofthe Institute for Conflict Analysis andResolution, and, or course, scores and scoresof law students who labored in the JuvenileLaw Clinic during the last twenty semestersin which we have experimented with usingspecial education to advocate on behalf ofthe children in the District of Columbiadelinquency system. For continuing support of our work in theJuvenile Law Clinic, including support forour advocacy on behalf of children witheducation-related disabilities who are in thechild welfare system, we thank The Eugeneand Agnes E. Meyer Foundation. We havealso received support for our specialeducation/delinquency advocacy work fromThe Public Welfare Foundation, The LegalServices Corporation, and The Freddie MacFoundation. For our work to reducedetention rates in the District of Columbia –specifically, to support the organizing,writing, editing, convening, and printing ofthe symposium “The Unnecessary Detention

of Children in the District of Columbia”, wereceived support from The Robert F.Kennedy Memorial Foundation and from theAnnie E. Casey Foundation.

– Joe Tulman

Introduction

The intended audience for this manual

is defense attorneys who represent childrenin delinquency matters and in statusoffenses; the intended audience includesalso disability rights attorneys and otherpublic interest attorneys with an interest inrepresenting children who are enmeshed inthe delinquency system. Children strive to be productiveand to be accepted. Children who are marginalized and considered to bedelinquent are, in large proportions, also children with education-related disabilities. Typically, children in thedelinquency system "failed" in theeducation system before entering thedelinquency system. Adults responsible for delinquencysystems and educational systems across thecountry have an opportunity to help makethose marginalized, delinquent childrenproductive and accepted. The advocacy described in this manualrevolves around the Individuals withDisabilities Education Act (IDEA), a federallaw incorporated into state law in all fiftystates and in the District of Columbia.(Other laws are relevant to the enforcementof educational rights for children withdisabilities, notably -- in the federal law --section 504 of the Rehabilitation Act and theAmericans with Disabilities Act. With onlya few exceptions, however, the authors havenot addressed or presented those laws in thismanual.) The IDEA protects children witheducation-related disabilities, affordingthem a right to a free, appropriate publiceducation. This central right under the IDEA

provides a path to productivity and toacceptance. Advocates who read and use this manualcan be catalysts or change agents who helpmove children from delinquency systemsback into educational systems that, in turn,can lead those children to jobs and, when appropriate, to higher education. Thismanual is a "how-to" presentation for thateffort. Moreover, the IDEA furnishes afinancial incentive for advocates to usespecial education law on behalf of childrenin the delinquency system: the IDEAprovides for attorneys' fees at market rate forthose who prevail in asserting specialeducation rights. Having prepared this manual under theauspices of the Annie E. Casey Foundation'sJuvenile Detention Alternatives Initiative(JDAI), the authors focused particularly oncase precedent from the Second, Seventh,and Ninth Circuits -- circuits with JDAIsites. Lawyers who use this manual shouldsearch, whenever appropriate, for additionalbinding and persuasive authority. Faculty and law students in the JuvenileLaw Clinic of the D.C. School of Law havebeen using special education advocacyunder the IDEA for the majority of theclinic's delinquency clients since 1990. Thismanual reflects the experience of thoseclinicians. The authors present caseexamples, strategies, and theories with theexpectation that they will be useful toadvocates throughout the country. At thesame time, the authors acknowledgeemphasizing some laws and practicespeculiar to the District of Columbia, andthey trust that this bias will not deter ordistract the reader.

Dedication

MANUAL LABOR

Dedicated: CHILD

Enforcers, executives, and executioners exigently escort. . .(against essentially nonexistent resistance). . . adolescentsinto jails and prisons,amidst reports that the juvenile courtslie 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). . . minorsshown on screens and bulk printswho, at the start, in the head and the heart,need teaching in the stead of constraining.

– JBT ‘98

Table of ContentsChapter 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 childrenwith disabilities

A. The prevalence of special education needs among children in thedelinquency system

B. The failure to address educational needs of pre-delinquent and court-involvedyouth

III Client service considerations: Whether and how to use special education advocacyfor 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 lackof jurisdiction

A. Status offense casesB. 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 thecommunity

V Using special education rights to guide the residential placementprocess for delinquent youths

VI Using special education evaluations to demonstrate that a child with adisability 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 Detentionor Other Incarceration For Delinquency Clients

• Gerald’s cases: A comprehensive joint special education and delinquencylegal strategy

• Ray’s cases: Designing a meaningful comprehensive IEP

Table of ContentsChapter 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 systemA. The childB. The defense attorney: Ethical problemsC. The parent or guardianD. The judgeE. Prison personnel and youth services workers

Chapter 4: Delinquency, Discipline and Disabilities

I School personnels’ programmatic obligations towards studentswith behavioral issues

II Basic student rights in school disciplineA. Procedural due processB. Searches and investigationsC. Disability discrimination in investigationsD. Case histories

III Disciplinary exclusion under the IDEA as amendedA. Legal backgroundB. Disciplinary exclusion as a change in placementC. Supplementary rights and procedures in disciplinary

exclusion: Manifestation reviewsD. Disciplinary exclusion of students accused of conduct

involving drugs, weapons or dangerous behaviorE. Notice, hearing and “Stay-put” rights under

the IDEA as amendedF. IDEA rights of students not previously determined

eligible for special education and related servicesG. Exclusions of ten days or less under the IDEA

IV Disciplinary exclusion under § 504 and the ADA

V School-filed crime reports and delinquency petitionsA. Morgan v. Chris L.B. IDEA amendments of 1997

Table of ContentsChapter 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 facilitiesA. Children aged eighteen through twenty-oneB. All children incarcerated in adult facilities

III Using the IDEA in representing children in delinquency matters or incriminal cases: Getting them out and keeping them out of incarcerationA. In generalB. Oliver’s case: Using special education advocacy to extricate a

child from a delinquency incarceration facilityC. 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 EligibilityA. The IDEA: The basic federal law for children with disabilities

affecting educationB. The Rehabilitation Act

II EntitlementA. The statutory and regulatory entitlementB. The Supreme Court’s definition of FAPE

Chapter 7: The Special Education Process: Investigating and Initiating the Special Education Case

I An overview on investigationA. Preparing a chart and a time lineB. Engaging an expert witness or consultantC. Interviews: People to see and questions to askD. Documents to obtain

II The parent as client: Understanding the consequences ofjoint representation

III Developing a theory of the caseA. Developing a special education theoryB. Developing a special education theory applicable to the

Delinquency case: A reminder of the advantages in understandingspecial education advocacy for delinquency clients

Table of ContentsChapter 8: The Special Education Process: Evaluations

I Understanding diagnosis and educational testingA. 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 ServicesA. Goals of transition planningB. Transition planningC. Other legal resources for transition services

V Preparing for the IEP

VI The IEP Conference and Its ParticipantsA. When parties disagreeB. 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

Table of ContentsChapter 12: The Special Education Process:

Due Process Hearings

I Hearing rights and procedures

II Hearing preparationA. Identifying the legal issuesB. Filing a complaint and requesting a hearingC. Preparing documentsD. Preparing witnesses

III Conducting a hearing

IV Follow-up

Chapter 13: The Special Education Process: Remedies

I Some general strategic considerations

II Private related services

III Private placementA. Legal entitlement to private placementB. Strategies for attacking public placementC. Strategies for demonstrating appropriateness

of private placementD. DocumentsE. TestimonyF. Some pros and cons of private placement for

students in the delinquency system

IV Compensatory education

V Damages and fees

Postscript

ChapterOne

The Best Defense is a Good Offense:Using Special Education Advocacy for Delinquency Clients

By using special educationrights and remedies

to augment competentdelinquency representation,

advocates for children canoften prevent placementsin juvenile incarceration

Written By facilities and unnecessary

Joseph B. Tulman placements in residentialtreatment facilities.

1-2 Chapter One: The Best Defense is a Good Offense

Advocates seeking to improve outcomes forchildren in the delinquency system --and,specifically, to reduce detention rates -- shouldincorporate special education advocacy into theirdelinquency practice. The premise of this manualis that, by using special education rights andremedies to augment competent delinquencyrepresentation, advocates for children can oftenprevent placements in juvenile incarcerationfacilities and unnecessary placements inresidential treatment facilities. Also, advocatescan extricate children from juvenile prisons,detention centers, and restrictive mental healthplacements. Indeed, in some cases, strategic useof special education advocacy can result indismissal of delinquency matters altogether.

I. The objectives: Getting children educated;getting children out of detention; gettingchildren out of the delinquency system

The objectives in using special educationadvocacy for delinquency clients are to obtainappropriate educational services, a lowerincarceration rate, and a lower rate of continuingjuvenile court jurisdiction. Advocates can usespecial education law on behalf of delinquencyclients to address educational problemsunderlying delinquent conduct and, in so doing,can either attempt to extricate those clients fromthe delinquency jurisdiction of the court orinfluence the delinquency court to be lesspunitive toward the clients.

Fundamentally, special education advocacy is ameans for delinquency clients to gain access toservices that can substitute for or negate theperceived need for preventive detention and post-disposition incarceration. Under the federal law,adopted by every state, a child with a disability1

is entitled to educational services, as well as to“related services” and “transition services”. Related services can include group andindividual counseling, speech and languagetherapy, transportation to educational services,and any other service that enables the child tobenefit from the educational services.Transition services2 assist a child in making thetransition from school to post-secondaryeducation, from school to work, and fromdependency to inde-pendency. Related servicesand transition ser-vices are broad categoriesthat allow the creative, pro-active advocate tohelp a client obtain meaningful services toaugment individually-designed educationalservices. Taken together, these services cansubstitute for incarceration; an advocate oftenwill be able to convince a judge that theservices provide a safe and productivealternative to preventive detention or post-disposition incarceration.

Obtaining special education services for a childwith disabilities involves requesting an evalu-ation of the child from the school or school sys-tem.3 If the child is eligible for services (i.e., ifthe child has a disability that substantially

1 To qualify for special educations services,the child must have a disability that substantiallyaffects learning.

2 Transition services are required forchildren with disabilities who are fourteen years oldor older.

3 Following the initial evaluation, theevaluation process must occur at least once everythree years; the parent can request evaluations morefrequently.

!!!

Fundamentally, special educationadvocacy is a means for delinquencyclients to gain access to services that cansubstitute for or negate the perceivedneed for preventive detention and post-disposition incarceration.

!!!


affects the ability to learn at a normal rate), thenthe school personnel must meet with the parent,the child (if the parent and child want the child toparticipate), the evaluators, and a teacher (orsomeone from the school familiar with the child’sschool work) to develop an IndividualizedEducational Program (IEP) of appropriateservices.4 School personnel then must provide anotice of educational placement, proposing aschool program that can implement the IEP.

On behalf of the child – through a representative(including an attorney) or pro se – the parent isentitled to challenge any aspect of the evaluation,eligibility determination, IEP development, andeducational placement on procedural grounds. For example, the parent may contend that theevaluation was improper or that additional orindependent evaluations are needed. The parentmay challenge the objectives outlined in the IEPor advocate for additional related services. Similarly, the parent may contest the schoolplacement proposed for the child by schoolsystem personnel.

Determining what the child needs is anindividualized process: addressing theparticular needs of the particular child. Remarkably, availability of services orfinancial consider-ations are not legitimateexcuses for a school system’s failure to provideservices; the law simply requires the schoolsystem to provide appropriate services asoutlined in an IEP. If the school system fails toprovide appropriate services, the parent canobtain private services and force the schoolsystem to pay.

The role of the parent in the special educationprocess provides a remarkable contrast with therole of the parent in the delinquency system. Typically, in the delinquency system, theparent has no formal role. Moreover, basedupon a feeling that the child’s delinquencyinvolvement reflects badly on the parent, theparent may blame the child for the misconductand inform probation officers, judges, and evenprosecutors that the child needs punitivetreatment. Often parents who are desperatelyseeking services for a troubled child rely on thedelinquency system without realizing that thedelinquency system is rarely constructive andwithout realizing that the educational systemhas services. The special education system isbased on a model of collaboration between theparent, expert evaluators, and educators. Rather than relying on a judge to order adelinquency placement or probationaryconditions, the parent can work with schoolpersonnel – including psychologists andteachers – to design an individualized programfor the child.

Special education advocacy turns delinquencydefendants into special education plaintiffs. Rather than relying exclusively on delinquencydefense strategies (e.g., suppression ofevidence, affirmative defenses), lawyers candevelop alternative solutions and strategiesthrough the special education system. Theadvocate’s challenge is to learn and integratedelinquency law and practice with specialeducation law and practice. Knowing both

4 “Appropriateness” is the operative standard. A school system is not required to provide a child withoptimal services or to maximize the child’s potential;rather, the school system is required to provideappropriate educational and related services that allowthe child to make progress from year to year towardgraduation. The Individualized Education Program (IEP) processtakes place at least once each year, and the parent canrequest more frequent reviews and modifications ofthe IEP (if, for example, the parent perceives that thegoals and objectives in the IEP are inappropriate).

!!!

Remarkably, availability of services orfinancial considerations are not legitimateexcuses for a school system’s failure toprovide services; the law simply requiresthe school system to provide appropriateservice as outlined in the IEP

!!!


areas of law, the advocate can formulate legaltheories that would not otherwise be available. For example, an advocate defending a truancycase can challenge the delinquency court'sjurisdiction based upon an alleged failure of theschool system to exhaust administrative remediesregarding the child's special educational needs.With access to two separate avenues for litigation(the delinquency court and the special educationadministrative hearing process), the advocate candevelop and implement a wide range of problem-solving strategies that would not otherwise bepossible. For example, the advocate can obtainevaluations of the child through the special

education process and, if beneficial, use thoseevaluations in a challenge to a Miranda waiver.

In some jurisdictions, statutory or contract pro-visions appear to limit public defenders to tradi-tional criminal and delinquency defense work.Even in jurisdictions without such limitations,defense attorneys nonetheless may perceive – given the crush of casework – that it would bedifficult, if not impossible, to devote time tolearning special education law and to advocatingfor clients regarding those additional matters.However, because special education advocacycan significantly benefit delinquency clients,defense attorneys who cannot themselvesincorporate special education practice shouldteam up with other attorneys who can providespecial education representation for delinquencyclients.

Special education litigants who prevail areentitled by statute to attorneys' fees at market

rate; hence, defense attorneys seeking toexpand resources for representing indigentdelinquency clients may find that specialeducation representation actually eases thefinancial constraints surrounding delinquencyrepre-sentation. Defense attorneys who opt forteaming with special education attorneys likelywill be able to locate special educationattorneys willing to take the cases based uponthe prospects of recovering attorneys' fees.Public defenders seeking to team with outsidespecial education attorneys may think about thefollowing five, somewhat imprecise, categories:(1) attorneys in private practice who alreadyspecialize in special education representation,(2) attorneys who specialize in specialeducation representation specifically ordisability law generally who work in non-profit, public interest organizations (includingprotection and advocacy centers), (3) attorneys– sometimes referred to as “panel attorneys” –who accept court appointments in delinquencycases who are willing to learn special educationlaw, (4) pro bono attorneys, typically fromlarger firms, who want to help indigent childrenand who are willing to learn special educationlaw, and (5) attorneys and law students fromlaw school disability rights or juvenile lawclinics.

In most cities, towns, and rural areas, public de-fenders and other delinquency attorneys likelywill have difficulty initially finding attorneyswho know special education law and who arewilling to represent delinquency-involved, indi-gent children and their families. Yet, in light of the availability of attorneys' fees – as notedabove – advocates for children enmeshed in thedelinquency system should be able to expedi-tiously train and organize a cadre of attorneyswho are willing and able to provide specialedu-cation representation for this constituency.(This manual is intended to facilitate preciselythat process of training and organizing.)

!!!With access to two separate avenuesfor litigation (the delinquency court

and the special education administrativehearing process), the advocate can

develop and implement a wide rangeof problem-solving strategies thatwould not otherwise be possible.

!!!


II. The problem: Incarcerating5 childrenunnecessarily, particularly children withdisabilities

American unnecessarily incarcerates children inlarge numbers. The problem is well-document-ed,6 and the problem of over-incarceration isparticularly acute in regard to minority and poorchildren, children who are neglected, andchildren with disabilities.

Juvenile court judges detain high percentages ofchildren who appear to be dangerous and whoappear to present a risk of flight. Often, however,judges make detention determinations based uponmisimpressions. Essentially, judges misinterpretcharacteristics associated with learningdisabilities, emotional disturbance, or mentalretardation. Characteristics common to childrenwith disabilities, such as difficulty in listening,thinking, and speaking,7 may lead a judge to

misinterpret the behavior of a child withlearning disabilities; the ultimate result couldeasily be the unnecessary detention of a childwho is not dangerous and who does not pose arisk of flight. A mentally-retarded child who ishaving difficulty understanding the proceedingsmay appear to a judge to be irrational oroffensively disinterested. Similarly, a judgemay incorrectly presume dangerousness orflight risk when encountering an emotionally-disturbed child who appears hostile or defiant.8

Although the defense attorney may have littleinformation about a client’s educational back-ground at the time of the initial hearing,specific questioning of the child or the parentmay indicate a disability. Being sensitive tohonor confidentiality, protect privacy, andavoid stigmatization, the attorney can alert thecourt or the intake officer to the possibleeducational issues; further, the attorney shouldargue that the child will not receive appropriateeducational services in the detention facility,adding to the child’s frustration.9 Thus, theattorney often can defeat proposed detentionthat is based on illegal and inappropriatefactors.

5The term “incarceration” in this contextrefers to pre-trial and pre-disposition (i.e., pre-sentencing) confinement, as well as to post-dispositionconfinement.

6See, e.g., Symposium: The UnnecessaryDetention of Children in the District of Columbia, 3D.C.L. Rev. ix (1995).

7See, Leone et al. at n. 16, citing Thomas MShea & Anne M. Bauer, Learners with Disabilities(1994). A child with a disability might presentapparently illogical reasons for actions. See, id. At n.

17, citing Pencer J Salend, Effective Mainstreaming:Creating Inclusive Classrooms (1994).

8Although the focus of this text is thelikelihood that judges will make misinformeddetention determinations (based upon amisinterpretation of characteristics associated withdisabilities), intake probation officers and juvenileprosecutors are prone to make the same errors ininterpretation and judgment. Defense attorneyscommonly fail to prevent or effectively challengethose misinterpretations and misjudgments and theresulting detention decisions.

9Juvenile court rules typically cite theemotional and mental condition of the child as arelevant factor in detaining a child “to protect thechild.” All parties involved must differentiatebetween behavior that results from a disability andposes minimal or no threat, and behavior that morelikely indicates dangerousness or risk of flight.

!!!Characteristics common to children

with disabilities, such as difficulty inlistening, thinking, and speaking, may

lead a judge to misinterpret the behaviorof a child with learning disabilities;the ultimate result could easily be

the unnecessary detention of a childwho is not dangerous and who does

not pose a risk of flight!!!


A. The prevalence of special education needsamong children in the delinquency system

Youths with disabling conditions are grosslyoverrepresented among those confined in juveniledetention and correction systems. Approximatelyseven percent of all public school students in theUnited States have been identified as havingdisabilities such as mental retardation, emotionaldisturbance, and learning disabilities.10 Withinthe juvenile justice system, however, children andadolescents with disabilities are grosslyoverrepresented and are disproportionate-lydetained and confined. Studies and meta-analysisof disabling conditions among incarceratedjuveniles estimate the prevalence rate at twelvepercent to seventy percent.11

Several theories explain the overrepresentation ofyouths with disabilities among incarceratedjuveniles.12 Examples include the school failure

theory, 13 the susceptibility theory,14 the differ-ential treatment theory,15 and the metacognitivedeficits hypothesis.16 While the school failure,susceptibility, and metacognitive explanationssuggest that learning and behavioralcharacteris- tics of certain youths directly orindirectly lead to delinquent behavior, thedifferential treatment thesis suggests thataspects of policing and judicial processing ofyouths at all stages of the juvenile justicesystem result in more punitive treatment ofsuspects and offenders who have disabilities. Inattempting to explain this overrepresentation,researchers face a complex set of factorsassociated with delinquent be-havior,variability in the classification and re-porting ofoffenses, imponderables connected to judicialdiscretion, and problems with measuringdisabilities. Hence the disability-delinquencylink lacks empirically-established explanations.

10See U. S. Department of Education,Sixteenth Annual Report to Congress on theImplementation of the Individuals with DisabilitiesEducation Act (1994).

11See generally Pamela Casey & Ingo Keilitz,Estimating the Prevalence of Learning Disabled andMentally Retarded Juvenile Offenders: A Meta-analysis, in Understanding Troubled and TroublingYouth 82- 101 (Peter E. Leone ed., 1990); NationalCouncil for the Mentally III in the Criminal JusticeSystem, Responding to the Mental Health Needs ofYouth in the Juvenile Justice System (J.J. Cocozza ed.,1992); Donna M. Murphy, The Prevalence ofHandicapping Conditions Among JuvenileDelinquents, 7 REMEDIAL & SPEC. EDUC. 7(1986); and D.J. Morgan, Prevalence and Types ofHandicapping Conditions Found in JuvenileCorrectional Institutions: A National Survey, 13 J. OFSPEC. EDUC. 283 (1979).

12Leone et al., Understanding theOverrepresentation of Youths with Disabilities inJuvenile Detention, 3 D.C.L. REv. 389, 390 and n.3-6(1995).

13See generally Charles A. Murray, TheLink Between Learning Disabilities and JuvenileDelinquency: Current Theory and Knowledge(1976); Travis Hirschi, Causes of Delinquency(1969).

14See Murray, supra note 3.

15See generally Ingo Keilitz et al.,Learning Disabilities and Juvenile Delinquency, inCONTEMPORARY CRIMINOLOGY 95 (L. D.Savitz & M. Johnson eds., 1981); Ingo Keilitz &Noel Dunivant, The Relationship Between LearningDisability and Juvenile Delinquency: Current Stateof the Knowledge, 7 REMEDIAL & SPEC. EDUC.18 (1986).

16See generally K.A. Larson, A ResearchReview and Alternative Hypothesis Explaining theLink Between Learning Disabilities and JuvenileDelinquency, 21 J. OF LEARNING DISAB. 357(1988).


Particularly under-examined is the dispropor-tionate use, against children with disabilities, ofpreventive detention. Preventive detention is, bydefinition, secure confinement prior to trial anddisposition or prior to a probation or parole(after-care) revocation hearing. Similarly under-scrutinized is judges' securely confining childrenwith disabilities at disposition in disproportionatenumbers; defenders of the status quo justify thisincarceration as treatment.

B. Failure to address educational needs of pre-delinquent & court- involved youth

The overwhelming majority of childrenenmeshed in the delinquency system do notreceive meaningful rehabilitation.17 In the Districtof Columbia, for example, the government hasfailed consistently to generate educationalprograms, foster care placements, counseling andother ser-vices which would help to stemrecidivism and alienation among court-involvedyouth. The District of Columbia does not providelocal residential treatment options for emotionallydisturb-ed children. Conditions at the juvenileincarceration facility are inhumane. Officialsoperating the facility do not adequately protect

the children from physical and emotional harm. Failing to distinguish children who areneglected or home-less from children who aredangerous, judges incarcerate many youngDistrict of Columbia residents unnecessarily.18

Educational deficiencies are a cause ofdelinquency, but few preventative, educationalprograms exist that serve children in the delin-quency system. The majority of childrenentering the delinquency court haveundiagnosed and unattended special educationneeds, but typ-ically no agency attached to thedelinquency system routinely evaluates or evenscreens children for special education needs. Schooling comprises by far the largest part of achild’s day, but the delinquency system usuallyfails to pro-vide adequate schooling forincarcerated children. These systemic breachesare resistant to remediation.19

Federal, state, and local laws obligate govern-ment employees who work with children in thedelinquency system to identify or “find”children who have disabilities that significantlyaffect ability to perform in school. This “childfind” obligation applies, generally speaking, to

17Many children with cases in thedelinquency system are not in need of care andrehabilitation and should be screened out of thesystem. See generally, Tulman, The Role of theProbation Officer in Intake: Stories from Before,During, and After the Delinquency Initial Hearing, 3D.C. L. REV. 235 (1995). Other children couldreceive care and re-habilitation from agencies otherthan the court system and should be screened out ofthe delinquency system. See, note 2, supra

18See generally, Symposium: TheUnnecessary Detention of Children in the District ofColumbia, 3 D.C.L.REV. ix (1995). Children in thedelinquency system are disproportionately neglectedchildren. See, Beyer, Juvenile Detention to“Protect” Children for Neglect, 3 D.C.L.REV. 373(1995). Like educational disabilities, child neglectis a fundamental cause of delinquency. Thedevelopment and dissemination of strategies forrepresenting neglected children in the delinquencysystem is analogous to the special educationadvocacy process outlined in this manual. Advocates must develop strategies that will forcejudges, probation officers (and other social workers)and prosecutors in the delinquency system torecognize and to address child neglect.

19See generally, M. Beyer, N. Opalack, andP. Puritz, “Treating the Educational Problems ofDelinquent & Neglected Children,” (1988) (paperavailable from the ADA Juvenile Justice Center,Washington, D.C.)

!!!Particularly under-examinedis the disproportionate use,

against children with disabilities,of preventive detention

!!!


all executive branch workers who are responsiblefor the care of children, not just to schoolpersonnel. Furthermore, executive branchpersonnel who work with children in juvenileinstitutions and in the community are obligated toobtain appropriate educational services forchildren with disabilities.

III. Client service considerations:Whether and how to use special educationadvocacy for delinquency clients

Various considerations influence whether andhow an attorney implements the strategy ofadvocating for a delinquency client’s rights. Athreshold consideration is the delinquencyclient’s decision whether to pursue specialeducation rights. An attorney representing achild in a delinquency matter cannot, consistentwith professional ethics, pursue special edu-cation rights if the child does not want to pursuethoserights. An attorney in a delinquency matter can-not – and should not – substitute the attorney’sjudgment for the child’s. Often, the client in adelinquency matter has dropped out of school andresists re-entering school. Such resistancetypically reflects an understandable desire toavoid renewed failure and frustration. Theattorney should listen empathetically and, in lightof the client’s own perceptions of self-interest,counsel and advise the client. If such discussionsdo not convince the client to seek a psycho-educational evaluation and to pursue specialeducation rights, the matter ends.

If the child decides to pursue educational rights, asecondary consideration arises; whether thedelinquency attorney or another attorney assumesresponsibility for the special education represent-ation.20 Either way, the attorney handling the

special education matter must involve thechild's parent in that advocacy.21 Many of thespecial education rights, particularly theprocedural rights, inure to the parent rather thanto the child.22

20If another attorney represents the child'sparent regarding special education rights, then thedelinquency attorney will not be in a position toexecute a special education strategy to influence thedelinquency case independent of that other attorney. When a child whom University of the District ofColumbia School of Law (UDCSL) clinical law

students and their supervisors represent in adelinquency case agrees to pursue special educationrights, UDCSL clinicians typically represent boththe child and the parent in the special educationrepresentation. University of the District ofColumbia School of Law clinicians also oftenrepresent children and parents in pursuing specialeducation in situations in which the child is alreadyrepresented by another attorney in one or moredelinquency cases.

21One might substitute the plural "parents"or the term "guardian"; for simplicity, the referencein this text will be to the "parent".

22See, e.g., Individuals with DisabilitiesEducation Act, 20 U.S.C. §1415(b)(I)(A) (parent'sright to examine records), §1415 (b) (I) (C) (right toprior written notice of educational changes), and §1415(b)(2) (right to hearing); but cf generally, id. §1417 (c) (protection of rights and privacy of parentsand students). The regulations, similarly, focus primarily onrights of the parent. See, e.g., 34 C.F.R. §300.500(terms "consent", "evaluation", "personallyidentifiable" all defined with reference to theparent), §300.502 (parent's right to examinerecords), §§300.504 & 300.505 (right to notice andconsent), §300.506 (right to hearing); but see, id.§300.344 (child's right, where appropriate, toparticipate in meetings) and §300.550 (leastrestrictive environment and needs of the child). The IDEA provides for the appointment of asurrogate for a child whose legal custody has beentransferred to the state. ld. §1415(b)(I)(B).

!!!A threshold considerationis the delinquency client’sdecision whether to pursue

special education rights.!!!


The child's attorney in a delinquency matter doesnot face an inherent conflict of interest in con-currently assuming representation of the parent inthe special education system.23 However, theattorney must advise the child and the parent ofthe potential conflicts that can arise between par-ent and child. The attorney must advise the parentand child of the limits of legal repre-sentation inthe event that a conflict arises.24 It is advisable forthe attorney to ask the parent and the child toconsider, and then execute, a retainer agreementdetailing the limits of the representation andnoting the attorney's intentions in the event that aconflict between the parent and the child were toarise.25

Having received permission in advance from the

parent and child, the attorney can help themresolve any disagreements that arise. Inpractice, the need often arises to mediatedisagreements between parent and child clientsin special education matters. If the attorneycannot success-fully mediate a disagreementbetween the parent and the child regarding asignificant matter, then the attorney might berequired to withdraw as counsel in the specialeducation matter.26 The attorney ordinarily willsucceed in helping the clients resolve disputesthat may arise, and, accordingly, the attorneywill rarely, if ever, encounter situations thatrequire withdrawal.

Often, parent-child disputes are central to theproblems that lead to the child’s involvement inthe delinquency system. Indeed, failure atschool and conflict at home are characteristicelements of a serious delinquency case. Representing the child and the parent together,the attorney is well-positioned to work withthem on school and family problems.27 Byhelping to reveal and to resolve some parent-child disputes, the attorney is helping theclients learn to cooperate, to collaborate, and toaddress their own problems. Thus, resolvingdisagreements between the parent and child canbe a critical step for the child educationally, aswell as emotionally.

The attorney must remain sensitive to theclients’ prerogatives, providing forthright andrespectful counsel. For example, some clientswould be inclined to chose a private, residentialtreatment center for emotionally disturbed

23Clinicians at UDCSL maintainconfidentiality with the child regarding all aspects ofthe delinquency matter; they do not communicate withthe child's parent regarding the facts and strategies ofthe delinquency matter. Theoretically, maintainingconfidentiality with the child occurrences ortransactions in the school setting (e.g., a charge forallegedly assaulting someone in school); andexcluding the parent would be even more difficult ifthe school-based delinquency allegation were toimplicate the disability (e.g., if the child charged withthe school-based assault was seriously emotionallydisturbed and assaultive behavior was for that child amanifestation of the disability).

24Conflicts will arise. For example, a parentmay believe that the child's special educational needsdictate placement in a residential school, and the childmay balk at the idea of living away from home.

25The attorney could execute a retaineragreement regarding special education representationwith the parent alone (assuming, as discussed above,that the child had agreed initially). If the "child",however, is over eighteen, the child has a right to be aparty to the special education matter and to contractfor representation without the parent. Clinicians atUDCSL typically execute a special education retaineragreement with both the parent and the child. Whenthe "child" is eighteen or over, UDCSL cliniciansleave to that child the decision regarding whether theadvocates should invite the parent to become involvedin the special education matter.

26In such a conflict situation, an attorneywho also represents the child in a delinquency casewould have to review the ethics of remaining on thedelinquency case.

27Family counseling, as well as individualcounseling for the child, may be appropriate“related services” that the attorney helps to secure inthe child’s special education individualizededucation program (IEP).


children over incarceration.28 Counsel shouldfully inform the client, however, of the likelyoutcomes of those respective placements. If thechild’s post-disposition placement in the juvenileprison is likely to be shorter in duration thanplacement in a residential treatment center, theattorney should advise the client of thatlikelihood. If the juvenile prison is closer to thechild’s home and more accessible for familyvisitation than the residential treatment center,then the attorney necessarily would want to pointout that difference, as well. On the other hand, anattorney who has evidence that a residentialtreatment facility might indeed provide bettertherapeutic and educational ser-vices than ajuvenile prison would share that evidence withthe client and provide appropriate counsel andadvice to the client. After informing a parent anda child regarding disparities in such things as“time served”, distance from home, and availableservices, an attorney must respect the clients’informed decision.

Both the attorney and the clients should investi-gate and visit any special education schools (dayprogram or residential) under considerationbefore making a placement decision. A schoolthat “looks good on paper” may, in reality, bedisorganized, punitive, or non-rigorous. Schoolpersonnel may be insensitive to the client’s needsand background. The staff and student body atmany private schools, for example, may bemajority white. An African-American or Latinoclient must consider whether such anenvironment is acceptable; indeed, attorneys andclients are likely to encounter school officials,teachers, and students who are racist and whostereotype delinquency clients.

The special education placement process can bequite positive for a delinquency client and theparent. The attorney is inviting them toparticipate in designing an IEP and to “goshopping” for a school that fits the child’sneeds. People enmeshed in the delinquencysystem rarely have a sense of control. Exercising special education rights providesthem with real choices of services andapproaches.

28Incarceration and placement in a“residential therapeutic center” both representrestrictive alternatives. The present discussion is notnecessary an endorsement of placing children in suchsettings.

!!!Both the attorney and the clients

should investigate and visitany special education schools(day program or residential)under consideration before

making a placement decision.!!!

ChapterTwo

Strategies for Using Special Education Law to Improvethe Outcome of an Individual Delinquency Case

Knowing and applying

both delinquency law

and special education law, a

delinquency defense attorney

can formulate and prove

legal theories that would not

otherwise be available.

Written by

Joseph B. Tulman

& Milton C. Lee, Jr.

2-2 Chapter Two: Strategies for Using Special Education Law

Using special education advocacy turns delinq-uency defendants into special education plain-tiffs. Knowing and applying both delinquencylaw and special education law, a delinquencydefense attorney can formulate and prove legaltheories that would not otherwise be possible. Adefense attorney can utilize the special edu-cation process to help a client develop altern-atives to incarceration that a judge will accept. Moreover, the special education process(through which the child participates in design-ing an Individualized Education Program (IEP))can be empowering for the child.

In this chapter, six broad theories and strategiesare developed for advocates who wish to utilizethe special education process in conjunctionwith delinquency or status-offense cases. Thesix sections that follow are: (1) Using Special Education in Support of aMotion to Dismiss for Lack of Jurisdiction: (2) Using Special Education in Support of aMotion to Dismiss for Social Reasons; (3) Using Special Education During the IntakeProcess; (4) Using Special Education as a Justificationfor Keeping the Child in the Community; (5) Using Special Education Rights to Guide theResidential Placement Process for DelinquentYouth; and, (6) Using Special Education Evaluations toDemonstrate that a Child with a Disability DidNot or Could Not Comprehend MirandaWarnings

The practice of law is, be definition, a “practice”that evolves and changes. Hence, these broadtheories and strategies are offered as instructiveand illustrative, not as necessarily established orexclusive.

I. Using special education in support of a motion to dismiss for lack of jurisdiction

Advocates for children, in may jurisdictions,must contend with prosecutors, school systemrepresentatives, or both, who initiate the filing

A Sampling of Theories andStrategies Available to the

Delinquency Defense Attorney

Truancy - In a truancy case, an attorney canchallenge the delinquency court’s jurisdictionbased upon an alleged failure of the school systemto exhaust administrative remedies regarding thechild’s special education needs.Miranda - An attorney can obtain evaluations ofthe child through the special education pro-cessand, if beneficial, use those evaluations todemonstrate that the child was not capable ofwaiving Miranda (Miranda v. Arizona, 384 U.S.436 (1966)) rights knowingly and intelligently.Mens Rea - An attorney can demonstrate throughexpert testimony that, notwithstandingappearances and people’s ordinary interpretations,a child with mental retardation or with a receptiveand expressive language disorder was notinteracting meaningfully or knowingly (i.e., wasnot acting with criminal intent) with a purportedco-defendant in an alleged crime or delinquentact.Behavior Management Program - For a childwho is incarcerated and who is seriouslyemotionally disturbed, as attorney can develop,with the assistance of a clinical psychologist, abehavior management program within the IEPthat prohibits the use of aversive techniques (e.g.,corporal punishment, restraints, harsh language)and requires the use of positive reinforcement andrewards.Denial of FAPE - In a special education hearing,an attorney can prove that the juvenile incar-ceration facility is not providing and cannot pro-vide the delinquency client with a free appropriatepublic education; the attorney could use such afinding to argue that the delinquency court mustorder the client moved to a more appropriate placeor released to the community.Collaboration - An attorney might find thatengaging personnel from an incarceration facilitywith regular requests and challenges – includingrecord production, evaluations, IEP meetings andhearings – tends to make those personnel morereceptive to a good-faith proposal from theattorney to place the child in a special educationplacement outside of the institution.


of charges alleging chronic or habitual truancy.1Another status offense, in some jurisdictions, is“ungovernability”, which is defined as “disobey-ing the lawful and reasonable commands of theparent or guardian.”2

The factual basis for charging a child with“ungovernability” could support, in someinstances, a delinquency charge, as well. Forexample, a child who physically resists a parent– even a parent who uses corporal punishment –might be vulnerable to a charge of simpleassault. A child with a disability, as defined inthe Individuals with Disabilities Education Act(IDEA), may appear to be ungovernable when,in fact, the child is incapable – absent appro-priate accommodations – of processing andunderstanding reasonable and lawful commands.Similarly, a child who is emotionally disturbed(as defined in the IDEA) may be “well behaved”or “manageable” if, as part of the child’s IEP, aproper behavior management program is inplace. Hence, in such a case, an advocate mayuse special education law and facts to challengethe jurisdiction of the court, or, in thealternative, to mount a substantive defense to theminor delinquency or status offense charge. These approaches are available typically

whether or not the child has been diagnosedpreviously as disabled.

A. Status offense cases

Some courts have dismissed status offenses andrelated, minor delinquency charges on juris-dictional grounds if, in essence, the schoolsystem had failed to fashion and implement anappropriate educational program for the child. In In re Ruffel P., 582 N.Y.S.2d 631 (Fam. Ct.1992), the principal of the child’s elementaryschool brought a “Persons In Need of Super-vision” (PINS) actions based on an allegation ofseveral acts of violent behavior during theschool year. The eight-year-old was representedby a law guardian who sought dismissal of theaction in the interest of justice and because theschool district had failed to exhaust itsadministrative remedies in an effort to developand secure an appropriate educational setting forthe respondent.

The court, recognizing that it was without juris-diction to review the decisions of the school dis-trict, nonetheless dismissed the petition in theinterest of justice. In dismissing the case, thecourt concluded that

it is appropriate for the school district to attempt to fashion, from its manyresources, a reasonable and appropriateenvironment for a child beforecommencing judicial proceedings. The

1These matters are regarded as “statusoffenses” because the offenses, by legal definition,are unique to children; an adult who acts in theproscribed manner would not, due to the status of“adulthood”, be subject to scrutiny or prosecution. Most state statutes designate these status offenses as“Persons In Need of Supervision (PINS)” or“Children In Need of Supervision (CHINS)” cases. Status offenses are generally viewed as non-criminalin nature. See, e.g., In re B.L.B., 432 A.2d 722 (D.C.1981); District of Columbia v. B.J.R., 332 A.2d 58(D.C. 1975).

2E.g., D.C. Code Ann. § 16-2301(8).Running away (from home or school, etc.) may beclassified as “ungovernable” behavior or mayconstitute a separate status offense category. Children also can be charged, in some jurisdictions,as status offenders, for possessing alcohol orcigarettes.

!!!A child with a disability, as defined in

the Individuals with DisabilitiesEducation Act (IDEA), may appear to

be ungovernable when, in fact, thechild is incapable– absent

appropriate accommodations–ofprocessing and understanding

reasonable and lawful commands.!!!


Court finds that it would be most unjustto adjudicate this young boy as a PINSand subject him to probable destructiveplacements until after the district has atleast attempted, in good faith, to engagethe problem.

Id. At 634

The court felt constrained to dismiss the actiongiven the school system’s admission that its onlyresponse to the problems presented by the childwas nothing more than disciplinary measures. While the school district had elected not toclassify the child as having an educational dis-ability, the evidence produced at a hearingdemonstrated that the child’s emotional prob-lems prevented him from controlling hi behaviorand, as such, interfered with his ability to learn.3

Because the parents were apparently able tohandle the child at home, a reasonable responsewas for school personnel to arrange alternativeeducational services, including services at home,to benefit both the respondent and his parents. The court, in dismissing the action, recognizedthat the respondent might eventually be placedin a facility, but that such placement would beappropriate only in extraordinary circumstancesand only after the school system made a goodfaith effort to solve the problem.

B. Delinquency cases

In delinquency cases, courts have been morehesitant than in status offense cases to recognizerelevant mandates of the IDEA in fashioningdis-positions or sentences for children who havebeen identified as disabled under the IDEA. InIn re Christopher V.T., 22 IDELR 89 (Oct. 31,1994), a child with an emotional disturbancepleaded guilty to assault. The child, throughcounsel, moved to “forego” the dispositionhearing because the court was required todetermine the least restrictive method of meetingthe child’s needs and because the federal law sonarrowed the dispositional alternatives that anyhearing would be “a foregone conclusion.” Specifically, counsel for the child asserted that,because the individualized education program(IEP) required home teaching, any dispositionalorder that required a placement outside of thehome would impinge upon the child’s rightunder the federal law to a free, appropriatepublic education (FAPE) in the least restrictiveenvironment.

In denying the child’s motion, the court noted“concerns [that] are broader than merely en-suring that the respondent is receiving a free,appropriate public education.” Id. at 90. The dis-positional statutory scheme authorized thefamily court judge to determine whether arespondent required supervision, treatment, orconfinement; if so, the judge than mustdetermine the least restrictive method by whichto meet the child’s needs, as well as the needs ofthe community for protection. The court foundthat “least restrictive environment” meant “that

3The Court declined to place the respondenton probation, as requested by the school district, be-cause probation would be futile. As long as theschool refuses to place [the respondent] in a settingwhere he can succeed behaviorally as well asacademically, probation would place respondent inan un-tenable situation. It would only be a matter oftime until respondent would be before this court on aviolation petition which could precipitate placement.

!!!In some cases, children become“behavior problems” only after

school personnel have ignored for yearsthe children’s learning disabilities.

!!!


placement of students with disabilities in specialclasses, separate schools, or other removal fromregular educational environment occurs onlywhen the nature and severity of the disability issuch that, even with the use of supplementaryaids and services, education cannot be satis-factorily achieved.” Id. The court concludedthat the “least restrictive environment” re-quirement is used in the educational placementcontext and is an expression of the clearpreference in the law to mainstream childrenwith disabilities whenever possible.4 Seegenerally, Board of Educ. Of Hendrick HudsonCent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982).

In a similar case in the United States DistrictCourt for the Middle District of Tennessee, thecourt upheld the order of an administrative lawjudge (ALJ) from a due process hearing direct-ing the school district to seek termination of thejuvenile proceedings. In Morgan v. Chris L.,5

school officials initiated the filing of vandalismcharges against a student diagnosed as havingAttention Deficit Hyperactivity Disorder(ADHD). Despite the student’s protracted his-tory of escalating academic and behavioral prob-lems, the school system neither completed aspecial education evaluation nor providedspecial education services prior to the decisionto file a delinquency petition. In addition,school system personnel failed to advise thestudent’s parent of any substantive or proceduralrights under the IDEA. The parent receivedinadequate oral notice of a meeting, held afterthe petition was filed, of the multi-disciplinaryteam designed to develop methods of dealingwith behavior resulting from the disablingcondition.

In response to these violations of the IDEA, theparent requested a due process hearing. At thehearing, the ALJ found, based on experttestimony, that the child’s disabling conditionwas responsible for the behavior complained ofby the school district and concluded that thecommencement of a delinquency proceedingconstituted a change in placement which entitledthe parent and the child to the procedural andsubstantive protections afforded under theIDEA.6 The ALJ also found, that the filing of apetition in juvenile court constituted theinitiation of a change in placementcommensurate with expulsion or suspension formore than ten days.7

4At least one jurisdiction has held that thebest interest of the child standard encompasses theIDEA least restrictive environment standard. In reWhite, 429 N.E.2d 1383 (Ill. App. 1982).

5927 F.Supp. 267 (E.D. Tenn. 1994) aff’d,106 F.3d 401 (6th Cir. 1997), cert. denied, 117 S.Ct.2448 (1997).

6School officials may not, generallyspeaking, sanction a student for conduct that isrelated to the student’s disability. Rather, if thebehavior is a manifestation of the student’s disability,the school must appropriately modify the child’s IEPand, if necessary, change the child’s placement(through the IEP process) as a means of addressingthe student’s behavior. See, S-1 v. Thurlington, 635F.2d 342 (5th Cir. 1981), cert. denied, 454 U.S. 1030(1981). Recent amendments to IDEA make evenmore explicit schools’ obligation to employappropriate educational interventions rather thanpunitive discipline. For a full discussion of these andother discipline issues. See Chapter 4 (regardingdelinquency, disability, and more school discipline),infra.

7For a more detailed discussion of thesubstantive and procedural rights afforded a childwith a disability regarding a change in placement, seeChapter 10 and Chapter 11. In Honig v. Doe, 484U.S. 305 (1988), the Supreme Court held that thesuspension of a student with disabilities for a periodexceeding ten days constitutes a change in placementthat triggers the “stay put” provision. (“Stay put”refers to the parent’s right to keep the child in thecurrent placement during the pendency of the specialeducation litigation process.) The Court also refusedto infer a “dangerousness” exception to the stay putprovision; holding instead that, in emergency cases,the school may seek injunctive relief to authorizesus-pension of more than ten days. The stay-putrights recognized in Honig have been modifiedsomewhat by the 1997 amendments to IDEA. For a


The district court, reviewing a direct appeal bythe school district, upheld the ALJ’s ruling. Thecourt found that the ALJ had not required thejuvenile court to take any action; rather, thecourt found that the ALJ had ordered the schooldistrict to seek dismissal of the delinquencypetition because of “the potential which juvenilecourt proceedings have on changing a child’seducational placement in a significant manner.” Id. at 785. The district had clearly failed toadhere to the IDEA’s procedural and substantiverequirements.

In upholding the ALJ and district court deci-sions, the Sixth Circuit Court of Appeals foundthat the school system had breached its dutyunder IDEA to identify, evaluate, and providethis student with a free appropriate publiceducation; had unlawfully attempted to secure aprogram for him from the juvenile court, insteadof providing services itself; and had, by filingthe petition, improperly sought to change his ed-ucational placement without following theIDEA’s change-in-placement procedures. Thecourt, like the lower court and ALJ, expresslyheld that the filing of the delinquency petitionconstituted a change in educational placement,entitling the student to IDEA procedural protec-tions, including the convening of an IDEA teammeeting prior to such a proposed placementchange.8

The IDEA does not – and probably could not –preclude school officials' reporting allegeddelinquent conduct to police and prosecutor. Onthe other hand, as demonstrated in the Chris L.case, prosecution is a misguided substitute forproviding special education services to a childwith a disability. Advocates for children shouldprotect clients from such misguided prosecution;advocates can file motions to dismiss in thedelinquency court and can also pursue remediesin the special education administrative forum.Similarly, courts should not tolerate attempts byschool officials to circumvent their responsibil-ities to children and parents.

In determining their own jurisdiction, juvenilecourts appear to distinguish between PINSmatters and delinquency cases in weighing theimpact of IDEA requirements. Courts in PINSmatters are inclined to require school officials tomake a good faith effort at developingappropriate educational interventions beforeseeking relief from the court. In delinquencyallegations, on the other hand, courts are moreinclined to balance the best interests of the childand the protections made avail able under theIDEA against concerns involving the perceivedsafety of the community. As Morgan v. Chris L.suggests, however, when school officials filedelinquency charges based upon the very con-duct that federal education law requires them toaddress, advocacy that brings to the court'sattention school officials' breach of theirsubstantive obligations can prove effective.

full discussion on this issue, see Chapter 4.

8The Sixth Circuit's otherwise unpublishedper curiam opinion is reported at 25 IDELR[Individuals with Disabilities Education Law Report]227. As part of the IDEA Amendments of 1997, and

subsequent to the Sixth Circuit decision in Morgan v.Chris L., language was added to IDEA stating that"[n]othing in this part shall be construed to prohibitan agency from reporting a crime committed by achild with a disability to appropriate authorities or topre-vent State law enforcement and judicialauthorities from exercising their responsibilities withregard to the application of Federal and State law tocrimes committed by a child with a disability." 20U.S.C. §1415(k)(9) as added by Pub. L. 105-17, IIISTAT. 88 (June 4, 1997). As discussed infra inChapter 4, this new provision in no way overrules orotherwise undermines the holdings in Morgan v.Chris L.

!!!The IDEA does not – and probably

could not – preclude school officials’reporting alleged delinquent conduct

to police and prosecutors.!!!


II. Using special education in support of a motion to dismiss for social reasons

In almost all cases, whether PINS or delin-quency, the jurisdiction of the juvenile court ispremised on a need for care and rehabilitation ofthe child.9 If, in representing a child in a delin-quency matter, an advocate can demonstrate thatthe child is not in need of care and rehabilitationor that the child is receiving adequate care andrehabilitation through sources other than thecourt, the court may relinquish – and perhapsmust relinquish – its power over the child.10

Children diagnosed with an educational dis-ability under the IDEA (e.g., emotional disturb-ance, learning disabilities, and mental retarda-tion) are eligible to receive, in the least restric-tive environment, appropriate services to accom-modate for the disability or otherwise respond tothe child's individualized educational needs.11

In the District of Columbia, as in many otherjurisdictions, the court rules provide for the dis-missal of juvenile and PINS cases for socialreasons when dismissal is in the interest ofjustice and welfare of the child.12 This standard

commits to the discretion of the trial judgewhether dismissal is appropriate or that the childwould benefit from further court action.13 Thecourt’s authority to dismiss a juvenile action forsocial reasons exists not only before a trial orplea, but also after an adjudication of guilt.14 The authority to dismiss in such a situation ispremised upon the basic philosophy of the juve-nile system that “more stress is placed on thewelfare and rehabilitation of the individual childthan on the technical questions of factual guilt orinnocence.”15

Special education advocacy can help a family toobtain specialized services and appropriate op-portunities for a child with an educational dis-ability. Specialized services and appropriate op-portunities, in turn, can form the basis of amotion to dismiss a pending delinquency orPINS case.16 Zealous and competent child ad-vocates will recognize in this strategy thepossibility of focusing the delinquency court onthe child’s potential and productivity rather thanon the need to punish and constrain the child.

9See D.C. Code §§11-1101(13) and 16-2301(6) for an example of a juvenile courtjurisdictional statute.

10See D.C. Code §§11-1101(13) and 16-2301(6) for an example of a juvenile courtjurisdictional statute.

11See, Hendrick Hudson Dist. Bd. of Educ. "Rowley, 458 U.S. 176 (1982).

12Rule 48(b) of the Juvenile Branch of theFamily Division of the Superior Court of the Districtof Columbia authorizes the dismissal of a juvenile orPINS action for social reasons. Super. Ct. Juv. R.48(b) provides, in relevant part: Even though theDivision may have required jurisdiction, it may atany time during or at the conclusion of any hearingdismiss a petition and terminate the proceedingsrelating to the child, if such actions is in the interestof justice and the welfare of the child. . . .

13A rebuttable presumption from case law inthe District of Columbia supports a conclusion thatthe commission of a delinquent acts shows the needfor care and rehabilitation; if an advocate for a childpresents evidence and successfully rebuts thepresumption, the court must dismiss the case. See, Inre M.C.F., 293 A.2d 874, 877 (D.C. 1972).

14See, In re C.S.McP., 514 A.2d at 448.

15In re M.C.F., 293 A.2d at 877.

16An advocate is more likely to succeed on amotion to dismiss for social reasons in situations inwhich the disability contributes to the behavior that isthe subject of the court action. Similarly (and self-evidently), judges are more likely to dismiss delin-quency cases that are relatively less serious. None-theless, advocates are well-advised to assert clients’rights to a dismissal for social reasons in delinquencycases that involve alleged behaviors that are not amanifestation of a child’s disability and indelinquency cases that reflect alleged behavior of alllevels of seriousness.


Moreover, for decades, families with access toprivate health insurance to pay for therapy andsufficient income to pay for private schools –including boarding schools and military schools– have often spun those services and opportun-ities into lifesavers for floating children out ofthe delinquency system. The availability of spe-cial education services and opportunities, byrights established in federal law, allow indigentand low-income families to benefit from essen-tially the same argument to extricate their chil-dren from delinquency involvement.

A proactive child advocate will work activelywith the child’s family and with school person-nel to develop or refine an IEP that meets theindividual child’s needs and, therefore, forms asolid basis for dismissing a pending delinquencymatter. To advocate in this manner, one mustunderstand not only special education services,per se, but also the range of available “relatedservices” and “transition services”.17 Relatedservices are, essentially, developmental, corre-tive, and other supportive services that help thechild benefit from special education.18 Hence,

related services include, but are not limited to,transportation, individual and group counseling,speech and language therapy, physical andoccupational therapy, and recreational therapy. Transition services are, essentially, acoordinated set of activities to help the childmove from school to work, from school to post-secondary education (if appropriate), and fromliving dependently to living independently.19

17For a more detailed explanation of relatedservices and transition services, see Chapter 9.

18“Related services” means “transportation,and such developmental, corrective, and othersupportive services...as may be required to assist achild with a disability to benefit from specialeducation ...” 20 U.S.C. § 1401(22); 34 C.F.R. §

300.16 (1997). In October 1997, the U.S. Departmentof Education published extensive proposed changesto the regulations implementing the IDEA. See 62Fed. Reg 55025 (October 22, 1997). These proposedregulations should be finalized before the end of1988; both the substance and citations for someregulatory provisions (e.g., current 34 C.F.R. §300.16) likely will change.

19The term "transition services" has beendefined as "a coordinated set of activities for astudent, designed with an outcome oriented process,which promotes movement from school to post-school activities, including [but not limited to] post-secondary education, vocational training,... employ-ment... [and] independent living...." 20 U.S.C. §1401(30). Transition services include, but are notlimited to, instruction, related services, communityexperiences, development of employment and otheradult-life objectives and vocational evaluation. Id.Transition services focusing on a student's course of

!!!A proactive child advocate will

work actively with the child’s familyand with school personnel to develop

or refine an IEP that meets theindividual child’s needs and, therefore,

forms a solid basis for dismissinga pending delinquency matter.

!!!


Based upon the broad definitions of related andtransition services, the advocate can help theparent and school personnel construct for a childwith significant needs a fairly comprehensivepackage of services, including, for example,individual, group, or family counseling, recrea-tional services, internships and job supports,tutoring, and, if needed, one-on-one transport-ation to school. The student may also needremedial instruction for designated subjects,along with particularized vocational instruction.Developing this information may put the ad-vocate in a position to demonstrate that the childis receiving services designed to provide careand rehabilitation; accordingly, in such a case,further intervention by the court would notprovide any additional service.20

If the child has received specialized treatmentwhile the court case is pending, counsel mayseek to demonstrate that not only is the childreceiving services designed to meet the child'sneeds, but also that the child has so benefittedfrom the services that care and rehabilitation areno longer necessary. In such a case, arguably,court intervention would no longer be appro-

priate. If the court-involved child has notpreviously been identified as eligible to receivespecial educational services,21 the advocate might convince the court to dismiss simply byinitiating the special education process andarranging for appropriate services. Advocatesmust constantly monitor and assess the educa-tional status and progress of a child to determinewhether to seek or renew a request for dismissalin the interest of justice.

III. Using special education duringthe intake process

The decision to petition, paper, or charge a caseis much like the decision to dismiss a case forsocial reasons. The decision-maker must deter-

study must be included in the IEP beginning at agefourteen. 20 U.S.C. § 1414(d)(1)(A) (v)(ii). The fullarray of transition services must be in place by nolater than age sixteen, and younger if appropriate. Id.

20A prosecutor may contend, or a judge maymuse, that the pendency of a delinquency matter"hanging over the child's head" is valuable in keepingthe child focused and disciplined. This beliefprobably is not sustained or supported by studies.The real question is whether fear of incarceration --the only "service" available through the delinquencysystem that is not available in other systems -- is, byitself, a sufficient reason to keep a delinquency caseopen. Counsel might reassure the judge that if thechild "messes up", there probably could be a newcharge that a well-meaning prosecutor could bring tore-invigorate the fear of incarceration. Within a fairsystem, however, the fear of incarceration shouldrarely be a factor. Incarceration should be a consider-ation only if the child is violent and demonstrablydangerous to others.

21The court has some authority to refer thechild adjudicated as in need of supervision to theschool system for special education evaluation. E.g.,Oscar F: v. County of Worcester, 587 N.E.2d 208(Mass. 1992). The court also can refer a child facinga delinquency charge for special educationevaluation. In some jurisdictions, state law explicitlyprovides for such evaluations, including schoolsystem involvement in the delinquency proceedingfor the purpose of see-ing that evaluations areconducted. Tennessee law, for example, requiresjuvenile courts to follow state and federal lawregarding evaluations whenever special education isdeemed necessary. TENN. CODE ANN. § 37-1-128©)(1). New Hampshire law provides for joinderof the school district for the purpose of determiningwhether the child has a dis-ability or, where the childalready receives special education services,reviewing the services being provided. See N.H.REV. STAT. ANN. § 169B :22. The advocate can work with the child's parent -- or, ifthe child is eighteen or above, with the child alone --to initiate the special education process; therefore,typically, the advocate does not need to ask the courtto order an evaluation or to refer the child for evalua-tion. In some instances, the advocate may perceivean advantage to involving the court in referring thechild for special education evaluation. For example,if school system personnel are slow to evaluatechildren or resist dealing with children in thedelinquency system, a court order may provide theadvocate with some useful "clout".


mine whether the child "needs" the court or thejuvenile justice system. Police officers, intakeprobation officers, and prosecutors all have thediscretion to keep a child out of the delinquency system. Police officers not infrequently decideto release, rather than to arrest, a child basedupon a perception that the child is "a good kid"and that the parents have the situation in hand.Based on reports that a child is doing well inschool, an in-take probation officer may decideto "informally adjust" the case. Considering thestatus of a child's parents and their promises toput the child into private treatment, a prosecutormay decide to informally divert or to "no-paper"a case.

In seeking to use special education on behalf ofa child facing a delinquency charge, an advocateshould examine carefully standards and proce-dures governing the intake function.22 The legalstandard for “no-papering”, diverting, or ad-justing a prosecution is often unclear to thoseapplying it, and the process for “no-papering”,diverting, or adjusting a prosecution is often hid-den and out of view.23 Indeed, people rarelyscrutinize the standard or question how theswitch was pulled.

Many people immersed as role-players in the de-linquency system – including defense attorneys,prosecutors, probation officers, and judges – aresurprised to hear that standards and proceduresexist for “no-papering”, diverting, or adjusting adelinquency case. They assume that decisions toproceed with a prosecution are wholly within thediscretion of the prosecutor and that onlyinstances if selective prosecution or blatantdiscrimination give rise to grounds to challengethat discretion. A close reading of the

delinquency statute in a given jurisdiction,however, likely will reveal such standards andprocedures. In the District of Columbia, forexample, the intake probation officer – in motcases – must make a recommendation to petitionor not to petition the case. A decision by theintake probation officer not to petition isreviewable by the prosecutor only upon appealby the complainant. D.C. Code § 16-2305. Theintake probation officer should be evaluating,principally, whether the child who is the subjectof the prospective petition is “in need of careand rehabilitation.” Hence, in such a case, theintake probation should de-rail the prosecution(or – to extend the metaphor – not allow thetrain to leave the station).

A child who is receiving, or should be receiving,special education services may be a child forwhom that standard arguably requires switchingsystems, from the delinquency track to the educ-ational track. Often the people responsible formaking that decision are simply asleep at theswitch or do not realize that the switch isactually functional. Yet, a non-exercise ofdiscretion is, by law, an abuse of discretion. Afailure to apply a standard constitutes aprocedural violation.

An advocate may be well-advised to provideinformation about the child’s educational status(including the fact that appropriate special ed-ucation services are, or will be, available to thechild) to the intake probation officer and even,

22See generally, Tulman, The Role of theIntake Probation Officer in Detention: Stories fromBefore, During, and After the Initial Hearing, 3D.C.L.REV. 235 (1995).

23Someone pulls the hidden switch to de-railthe prosecution typically when the child is “from theright side of the tracks.”

!!!A child who is receiving,

or should be receiving, specialeducation services may be a childfor whom that standard arguably

requires switching systems,from the delinquency track

to the educational track.!!!


perhaps, to the prosecutor.24 In a surprisinglyhigh percentage of cases, the intake probationofficers – and, less surprisingly, the prosecutors– are not aware of the child’s educational status. The information that appropriate services areavailable for the child through the special educa-tion system might be sufficient to persuade theintake probation or the prosecutor to foregocharges. In addition, the advocate should, when-ever possible, challenge any violation of the in-take process and any abuse (or non-exercise) ofdiscretion that results in charges being filedagainst a child who can receive care andrehabilitation through appropriate specialeducation services.

IV. Using special education as a justificationfor keeping the child in the community

Over the last several years, rates of preventivedetention of juveniles have risen in jurisdictionsall over the country. Rates of post-dispositionand post-sentencing incarceration in juvenileand adult facilities, respectively, also are highand rising precipitously.25 Advocates can use thespecial education process to develop for a childan individualized program that will function asan alternative to detention or as an alternative topost-disposition, or post-sentencing,incarceration.

In determining pre-trial placements, courts aregenerally concerned with issues of dangerous-

ness and risk of flight.26 Generally speaking, de-tention statutes provide that a court can orderdetention of a child in a delinquency matterbased upon evidence that a child is dangerous toself or to others. A court also can detain a childwho presents a risk of non-appearance. To besufficient to support a detention order, evidencemust be clear and convincing.27

Arguably, a child charged with a delinquent actwho is also eligible for special educationservices is entitled to receive those services inthe least restrictive environment.28 Delinquencylaw – and, in particular, delinquency preventivede-tention standards – requires in somejurisdictions that the court maintain the child inthe least restrictive environment or that the courtprovide for the child the most home-likeenvironment possible.29

24An attorney, of course, cannot disclose,without agreement from the client, confidentialinformation obtained from the client or other “secret”information obtained during the course of therepresentation.

25In light of this "steep inclination" byjudges to incarcerate children, advocates should beaware that, by law, children retain benefits of theIDEA even when preventively detained orincarcerated post-disposition or post-sentencing. SeeChapter 5, infra.

26See D.C. CODE § 16-2310 for an exampleof a preventive detention statute. The District ofColumbia's provision permits pretrial detention if thegovernment demonstrates that the child presents adanger to the safety of other persons, a danger to self,or a danger of serious loss or damage to the propertyof others; in addition, the provision permits detentionif the child poses a demonstrable risk of flight.

27See, Julia Colton-Bell & Robert J. Levant,Clear and Convincing Evidence: The Standard Re-quired to Support Pretrial Detention of JuvenilesPursuant to D.C. Code Section 16-2310, 3 D.C. L.REV. 213 (1995). Before trial, of course, a child --like an adult charged with a crime -- enjoys apresumption of innocence.

28See, In re White, 429 N.E.2d 1383 (Ill.App. 1982). While in White the court determined thatresidential placement was necessary for threechildren with mental retardation where the parent hadto follow through on community resources madeavailable to the children, the court recognized that theleast restrictive environment was a preference.

29See, e.g., DISTRICT OF COLUMBIASUPERIOR COURT JUVENILE RULE 2 (courtremoving child from home must secure for the child"custody, care and discipline as nearly as possibleequivalent to that which should have been provided


On behalf of a child who is receivingparticularized services through the schoolsystem, an advocate can argue that theseservices will address behaviors that, otherwise,could justify a detention order. One can envisionreadily how related services could targetbehaviors that are dangerous or problems that, ifun-checked, would create a risk of flight. Forexample, a court may be inclined to permit achild to remain in the community based upon theinformation that the child will be engaged inindividual and group psychological counseling.In addition, the providers of special educationservices often are, in essence, monitoring thechild as well. If the child is eligible for, but isnot receiving, services that would addressdangerous behaviors or running away (or otheravoidance behaviors), the advocate can andshould work rapidly to get those services inplace in order to avoid or to rescind a detentionorder. If the child's IEP does not require servicesthat would ameliorate the problematic behaviors,the child's parent (through counsel) can alwaysrequest that the multi-disciplinary team re-convene to revise the IEP.

A judge may resist ordering detention if thejudge knows that special education services willnot be available to a child if that child is remov-ed from the home.30 A judge likely will notknow that a detention center does not providespecial education and related and transitionservices unless the child's advocate demonstratesthose facts. An advocate should not assume that

a judge will respond merely to an argument tothat effect or an appeal to the judge’scompassion or parental instincts. Courts shouldnot assume facts that attorneys have asserted butnot proved.

When a child is removed from the home –whether pretrial, pre-disposition, or disposition31

– the child retains the right to receive a free,appropriate public education.32 (For a detailedpresentation of rights of incarcerated youngpeople to special education, see Chapter 5,infra.) Thus, when confronting a situation inwhich a judge may impose a period of incarcera-tion, an advocate should be mindful of thechild’s right to special education services.33

for [the child] by his parents.")

30A requirement that the court provide theleast restrictive environment and provide specialeducation services in the least restrictive environmentsuggests a corollary: a detention center at which staffcannot provide special education services is, bydefin-ition, not the least restrictive environment atwhich special education services can be provided.Hence, a court should not detain or incarcerate achild with education-related disabilities at a facility atwhich staff cannot provide a free, appropriate publiceducation.

31In fashioning an appropriate dispositionunder the laws in most jurisdictions, courts mustconsider the best interest of the child. Any valid con-sideration of the best interests of a child with educa-tion-related disabilities should result in a dismissal orsome other dispositional order through which thechild is able to obtain a free, appropriate publiceducation.

32Courts have long recognized that incar-cerated youth with disabilities (whether in juvenile oradult facilities) retain their rights under IDEA to afree appropriate public education, including specialeduca-tion and related services. In Green v. Johnson,513 F.Supp. 965, 976 (D. Mass. 1981), for example,students incarcerated in an adult facility brought anaction under the IDEA claiming that they had beendenied a free, appropriate public education whileincarcerated. The district court held that thestudents’ “incarcerated status may requireadjustments in the particular special educationprograms available to them as compared to programsavailable to children with special educational needswho are not incar-cerated, but their incarceratedstatus does not evisc-erate their entitlement underfederal and state law.” See also Alexander S. v.Boyd, 876 F.Supp. 773 (D.S.C. 1995) (juvenilefacilities); Donnel C. v. Illinois State Bd. of Ed., 829F.Supp. 1016 (N.D. Ill. 1993) (pre-trial detention).

33Advocates should be aware that the 1997amendments to the IDEA modified the rights of someyouth who are incarcerated in adult facilities. The


V. Using special education rights to guide theresidential placement for delinquent youth

In an occasional delinquency case, a court willdetermine that a child will not benefit from careand rehabilitation in the community and that thetype of treatment necessary is only availablethrough a residential treatment center. In such acase, the advocate must be aware of the child’sright to obtain appropriate educational serviceswhile in a residential placement. The advocatealso must be aware of the ability to influence theselection of an appropriate residential placementgiven the educational needs of the child.

In some instances, placement in a residentialtreatment center may be consistent with the pref-erence expressed in the IDEA for the leastrestrictive environment.34 The evaluationprocess conducted by the local school system isan important aspect of obtaining an appropriateresidential treatment placement. During theevaluation period, the school system will (or, atleast, should) complete a social history,psychological evaluation, intelligence testing,hearing and speech evaluations, and any othertests necessary. These evaluations andassessments will be used in determining the typeof disability and the level of placementnecessary for the child’s treatment. The ultimateplacement should be a facility designed toprovide the educational services specified in thechild’s individualized education program (IEP).

VI. Using special education evaluations todemonstrate that a child with a disability didnot or could not comprehend Mirandawarnings

Courts traditionally have scrutinized with a greatdeal of caution statements obtained by the policefrom juveniles.35 Before any statement that wasthe product of custodial interrogation36 may beintroduced into evidence, the government mustprove by a preponderance of the evidence thatthe accused was provided with a complete set ofMiranda warnings.37 The government bears theadditional burden of demonstrating, by a pre-ponderance of the evidence, that any waiver orintentional relinquishment of Miranda rightswas knowing, voluntary, and intelligent.38 Waiver is determined by a careful review of allthe facts and circumstances surrounding the

1997 changes permit states to enact laws denyingspecial education and related services to youth aged18 through 21 who are incarcerated in adult facilitiesand who were not identified as needing special educ-ation in their last educational placement prior toincar-ceration. 20 U.S.C. § 1412(a)(1)(B)(ii), asadded by Pub. L. 105-17 (June 4, 1997). Theamended law also modifies certain IEP requirementsfor youth who have been convicted as adults underState law and incarcer-ated in adult facilities. See 20U.S.C. § 1414(d)(6). For a detailed discussion ofthese provisions, see Chapter 5.

34See, e.g., In re White, 429 N.E.2d 1383(Ill. App. 1982).

35E.g., In re Gault, 387 U.S. 1 (1967); In reC.P., 411 A.2d 643 (D.C. 1980); In re F.D.P., 352A.2d 378 (D.C. 1976).

36The threshold question in determiningwhether a Miranda violation has occurred is whetherthe accused’s statement was the product or result ofcustodial interrogation by government agents. “Inter-rogation” has been defined to include “not just ex-press questioning, but also any words or actions onthe part of the police (other than those normallyattendant to arrest and custody) that the police shouldknow are reasonably likely to elicit an incriminatingresponse from the suspect.” Rhode Island v. Innis,446 U.S. 291, 201 (1980). “Custody” has beendefined as the deprivation of freedom of action in anysignificant way. Miranda, 384 U.S. at 444. The test– as formulated by the D.C. Court of Appeals – iswhether “the investigating officer physically deprivesthe suspect of his freedom of action in any significantway.” Miley v. United States, 477 A.2d 720, 722(D.C. 1984).

37Miranda v. Arizona, 384 U.S. 436, 444(1966).

38See generally, Brewer v. Williams, 430U.S. 387 (1977); Lego v. Twomey, 404 U.S. 477, 489(1972).


relinquishment of the privilege.39 Factors thathave traditionally guided courts in determiningissues regarding waiver include the individual’sprior experience with the legal system, thecircumstances of the questioning, anyallegations of coercion, and any delay betweenarrest and confession.40 The age and educationallevel of the accused are factors that should wightheavily in the consideration of the totality of thecircumstances in determining issues relating tothe waiver of constitutional protections.41

The advocate for a child who is eligible for orreceiving special education services has anopportunity – based, in part, upon theeducational disability – to contest the validity ofany purported waiver of constitutional rights. Thus, the advocate may be able to blockadmission into evidence by the prosecution ofany statement made by the child. Courts havedemonstrated concern and skepticism regardingthe ability of a child who has educationaldifficulties to waive Miranda rights.

For example, in Cooper v. Griffin, 455 F.2d1142 (5th Cir. 1972), petitioners were convictedin state court of armed robbery at the age offifteen and sixteen. In a subsequent habeascorpus action, petitioners challenged the validityof their Miranda waivers. Witnesses testifiedabout the petitioners’ level of functioning at thetime that they waived their rights and made thestatements. Petitioners’ mother and father testi-fied that they were mentally retarded at birth. Atleast two teachers also testified, indicating thatthe petitioners were placed in a special educationclass for mentally retarded children, read at asecond grad level, and had IQ scores belowsixty-nine. All of the witnesses doubted thateither petitioner was capable of intelligently

waiving constitutional protections. Theappellate court, in reversing the lower courtruling and finding that the waiver was invalid,emphasized that both petitioners had beendiagnosed as being mentally retarded since birthcould barely read, had no prior experience withthe legal system, and in no way could haveunderstood the “gravity of the charges againstthem, the consequences of a conviction, anydefenses which might be available to them, orany circumstances which might mitigate thecharges.” Id. at 1145.

An invalid waiver was also found in UnitedState v. Blocker, 354 F. Supp. 1195 (D.D.C.1973). In Blocker, a twenty-one year old wasarrested and charged with passing an altered onedollar bill. Blocker was questioned extensivelyfor one and one-half hours, strip searched andtold that he would face a stiff sentence and highbond if he did not cooperate with the agents. Asa result, Blocker finally waived his Mirandarights and made a statement. During the courseof pretrial motions, evidence was presentedthrough school records and psychologicalevaluations that Blocker was of low intelligence(IQ of 70), completed the seventh grade but haddifficulty reading, and had been enrolled inspecial education classes. The court found thatthe government had failed to meet its burden ofdemonstrating that Blocker had voluntarilywaived his Miranda rights.

In each of these cases, the successful challengeto the validity of the purported Miranda waiverwas greatly supported by the presentation ofeducational records and individuals who werefamiliar with the juvenile’s educational abilities.Cf., In re F.D.P., 467 (D.C. 1983) (a fifteen-year-old child with an IQ of 74, but with priorexperience, was found to have been able towaive Miranda, in part, because no experttestimony was presented regarding appellant’sabilities).

39North Carolina v. Butler, 441 U.S. 369(1979).

40E.g., In re F.D.P., 352 A.2d at 380.

41See, e.g., McBride v. Jacobs, 101 U.S.App. D.C. 189, 190, 247 F.2d 595, 596 (1957).


Excerpt

Leone, et al., Understanding the Over-representation of Youths with Disabilities inJuvenile Detention, 3 D.C.L. Rev. 389 (1995): To further illustrate the difficulties youngstershave in understanding the justice system, tworesearchers conducted investigations regardingjuveniles’ comprehension of their Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1996). Thomas Grisso found that many adolescents donot fully understand their Miranda rights.1 Wilethe majority of the more than 400 delinquentyouths studied had faulty understandings ofMiranda rights, the most noteworthymisconceptions involved the right to an attorneybefore and during interrogation. Additionally, theresults indicated that age and IQ scoressignificantly predicted the juveniles’understanding of Miranda rights. Within Grisso’ssample, younger respondents and youths withlower measured levels of intelligence wereassociated with faulty understanding of legalrights. In a similar investigation, Barbara Zarembainterviewed 115 male public school students inVirginia aged fourteen to eighteen. Nearly one-third of those studied had been identified aslearning disabled by their school systems.2 Theinfluences of IQ, age, socio-economic status, andschool placement on the understanding of Mirandawarnings were considered. When asked what“You have the right to remain silent” means, onerespondent stated, “I have to remain silent, whilethey arrest me, I think.” Another stated, “I don’thave to say anything until the police ask mequestions.” In response to the second warning,“Anything you say can be held against you in acourt of law,” adolescents made statements suchas, “What does that mean?”, “I can’t figure thatone out”; “After they ask me to remain silent, Ishouldn’t say anything because it will be used

against me”; and “If you say anything unless theytell you to say anything, it will be on your recordwhen you go to court.” Another warning, “You have a right to anattorney before and during interrogation,” wasinterpreted by some as follows: “You can have alawyer, but I don’t know when”; “At the time ofyour trial one of your privileges is to have anattorney present”; and “I don’t know about that.” “The court will appoint an attorney if youcannot afford an attorney” is another Mirandawarning. One respondent thought this meant,“They’ll give me a lawyer that’s not so good fromdowntown.” The most significant finding reportedby Zaremba was that the presence of a learningdisability severely hampered youths’understanding of the Miranda warnings, regardlessof other factors. While empirical evidence is limited, the Grissoand Zaremba studies indicate that young peoplewith lower IQ levels and those with learning dis-abilities misunderstand rights intended to guardagainst self-incrimination extended to juveniles asa result of In re Gault, 387, 387 U.S. 1 (1967) andKent v. United States, 383 U.S. 541 (1966). Ironically, although unable to comprehend theirrights, many youths nevertheless waive them. Again, their deficits impede their capability toprotect their own interests and maneuversuccessfully through this process. In short, thebehavior, language, and communication skills ofyoung people with disabilities can contribute totheir unnecessary detention while awaiting adispositional hearing.___________________________1 See Thomas Grisso, Juveniles’ Capacity to WaiveMiranda Rights: An Empirical Analysis, 68 CAL.L.REV. 1134; and Thomas Grisso, Juvenile’s Waive ofRights: Legal and Psychological Competence (1981).2 Barbara A. Zaremba, Unpublished data, 1995 (on filewith the District of Columbia Law Review).


Steps to Special Education Advocacy

Identification and Pre-referral Intervention

! “Child-Find": Public school agency is required to identify, locate, and evaluatechildren who are disabled and need special education. See 34 C.F.R.§ 300.220 and Chapter 6 of this manual.

! If it appears a child may be retained, the school system must take intervention steps to ensurepromotion of the child.

! If a child is retained despite intervention, the school system must make formal referral for specialeducation assessment and obtain parental consent before doing so.

! Four to six week intervention period in regular education setting is optional.

Formal Request to Public School to Evaluate Child

! A formal request for assessment should be sent to the school that the child attends to formally request assessment of the child.

! Once form is filed, child is under IDEA.

Evaluation of Child

! After the formal request, a full assessment of the child should occur.! Types of evaluations: Psychoeducational cognitive (IQ) (academic, perceptual);

Clinical Psychological (emotional personality); Occupational/Physical Therapy(motor skills); Medical (vision, auditory, psychiatric, neurological, physical);Speech/Language; Vocational.

! BLMDT Members: Parent or guardian; Child; and Assessment Team: coordinator, psychologists(school, clinical, neuropsychologist), speech therapist, social worker, principal, teacher(s),counselor, transitional & vocational persons, occupational & physical therapists.

! Miscellaneous: Each assessor must draft written report describing results of test andrecommendations; Parents must get a copy of evaluations before IEP meeting to review; Parenthas a right to an independent evaluation and under certain instances, at public expense;Evaluations must be in the child's native language.

Eligibility of Child for Special Education under IDEA

! Child must be between the ages of three and twenty-one and have a disability thatadversely affects his or her ability to learn or make progress in school.

! The child needs specialized instruction, and/or related services in order to learn andmake progress in school.

! Eligibility -- and final recommendation -- is a team decision that includes parent input.! If ineligible, school system must draft and send letter to parent, explain reasons for ineligibility

and include educational prescriptions to be carried out in the regular classroom.! Parent has a right to challenge eligibility, classification of disability, and/or evaluations.! Disability classifications: Learning Disabled (LD); Seriously Emotionally Disturbed (SED);

Mental Retardation (MR); Autistic; Visual Impairment (VI); Speech/Language Impairment (SI);Other Health Impairment (OHI); Traumatic Brain Syndrome; Orthopedic Impairment (0I);Hearing Impaired (HI)

STEP1

STEP2

STEP3

STEP4


Steps to Special Education AdvocacyIndividualized Educational Program (IEP)! The IEP is a written document and a conference/meeting.! Purpose of IEP: Create a document with objectives, measurable goals, specialized

instruction and related services for a child’s unique need.S Provide a working guide for school personnel to implement the

goals set out in the IEP.S Provide an opportunity for the team to discuss their findings with the parent and

answer any questions the parent many have.! Notice: School must notify parent – in writing – of time, place and who will attend IEP

conference, and notice must be in a language and manner the parent can understand.S If student is sixteen years of age, transitional services must be included in the notice and

be stated in IEP.S If transitional services are to be included in IEP, the school system must invite the

student.! Other Requirements: Parent must have input and has a right to bring advocate or anyone else to

IEP.S Parent should receive all evaluations within a reasonable time prior to the IEP.S The school team may bring a draft IEP, but parent has the right to change, amend, or

modify it.S When in disagreement, complete as much as IEP as possible to ensure the student gets

some services while dispute gets resolved.Placement!The school system must consider placement annually in accordance with the child’s IEP.!The child should be place in the Least Restrictive Environment.!The child should be placed as close to home as possible.!The child should get instruction within the regular education setting as much as possible.

! A parent has the right to challenge any proposed placement and the “stay put” provision willallow the child to remain at his or her last current placement while the dispute gets resolved overthe proposed placement.

! If the public school system can not provide a child with the services required by his or her IEP, aparent can seek to have the child placed into a private placement – at public expense – in order toreceive a free, appropriate public education.

! The continuum of services is the range of levels of special education services available; the rangeof levels is as follows: regular education classroom, separate special education classroom,separate special education school, residential placement, hospital/institution, detention facility.

! The team – which includes parent – determines which level of placement is appropriate.

Annual Reviews! A child’s IEP and placement must be reviewed on an annual basis.! A parent may request a review at any time during the year.! Purpose of Annual Review: To determine student’s progress; to modify or develop

new IEP; and to revisit the student’s disability classification and placement level.Triennial Reviews! A triennial review involves a complete assessment of the child, comparable to the

initial testing that took place to determine eligibility.! Triennial reviews must occur within three years of last complete assessment.! The purpose of the triennial review is to reconfirm the student’s disability,

instruction and related service needs.

STEP5

STEP6

STEP7

STEP8


Steps to Special Education Advocacy for a Delinquency Client

Preliminary Steps and Organizing Actions1 Counsel should read and study this manual. In addition, counsel should obtain copies of relevant

state and local laws and regulations, as well as relevant school board and youth authority policies.2 Counsel should identify local attorneys (e.g., private practitioners specializing in special

education law, attorneys from the protection and advocacy center, law school clinicians), as wellas educators (e.g., university-level professors of special education) who have expertise regardingspecial education law, practice, services, and evaluations. Counsel should organize trainingsessions with those experts for delinquency attorneys, social workers, and other interestedadvocates who work with children in the delinquency system.

3 Counsel also should consider organizing training sessions (regarding special education rights andservices) for judges; probation and parole officers; detention center counselors, teachers, andadministrators; mental health workers; vocational rehabilitation agency workers; private serviceproviders (including organizations that run alternative-to-detention programs); neglect systemsocial workers and administrators; and school system personnel.

4 Ideally, counsel would create a fund to support independent or private evaluations and privateBurlington remedies for clients.

5 Counsel should learn how to file for attorney’s fees when prevailing in a special educationproceeding or matter.

6 Counsel should consider raising money from foundations and other sources in order to set up aspecial education advocacy project in the local public defender office, as part of a law schoolclinic, or as an independent project. Such a project can become self-funding based upon theattorney-fee-shifting provision of the IDEA.

7 Delinquency counsel should consider whether to provide special education representation andadvocacy or to advise the delinquency client and the parent to engage outside counsel for thespecial education representation. If the latter, delinquency counsel should identify specialeducation attorneys who are willing and able to provide special education representation fordelinquency-involved children (and their parents).

8 Counsel should check ethical rules of the jurisdiction to determine any limitations or concernsregarding representing the child and the parent jointly in the special education matter. Counselshould study and reflect upon conflict-of-interest provisions and solicitation provisions. Inaddition, counsel should avoid discussing facts of the delinquency case with the parents. Thiscaution to avoid discussing the delinquency facts with the parents is particularly difficult torespect in the context of a delinquency case (or truancy case) that arises from an incident thatallegedly occurred at the child’s school.

9 Counsel should draft a special education retainer agreement for use with delinquency clients andtheir parents; counsel also should draft a retainer agreement for use with delinquency clients whoare eighteen years old or above and who decide to assert their special education rights withoutparental involvement.


Steps to Special Education Advocacy for a Delinquency Client

Steps to Take in an Individual Case

Counsel should:

1 Discuss with the child advantages and disadvantages of employing a special education strategywithin the delinquency case. Counsel also should discuss with the child the need to engage a“parent” as a client also for purposes of the special education representation. (If the child iseighteen, counsel should discuss with the child the choice of representing the child alone in thespecial education matter.)

2 Execute a retainer agreement with the client(s) and obtain from the parent and the child a releaseform to facilitate collection of records, etc.

3 Have extensive discussions with the client(s) to determine, at least preliminarily, the goals of theclient in terms of education and (for the child) in terms of the delinquency case.

4 Obtain all relevant educational, medical, psychological records and evaluations. Counsel shouldinvestigate the child’s educational, medical, and social history.

5 Chart the child’s educational history, literally creating a chart that organizes the information byyear, grade-in-school, school attended, grades on report cards, scores on achievement tests,evidence of special education actions (including referrals for evaluation), etc. In essence, counselmust think of every possible category to include in the chart.

6 Based upon relevant special education legal provisions, identify the rights and legal theories thatadvance the educational and delinquency-case goals of the client(s); Construct a strategy thatincorporates all of the steps in a special education case (identification through triennial reviews)and that takes advantage of special education remedies (including private placements viaBurlington and compensatory education claims). See also, Summary of Strategies for ObtainingRelease from Detention or Other Incarceration for Delinquency Clients on following pages.


Summary of Strategies for Obtaining Release from Detentionor Other incarceration For Delinquency Clients

Detained Child Committed and Incarcerated Child Based on special education actions (includingprovision of services not previously availableor supplied to the child), move forreconsideration of detention (or equivalentprocedural action to effectuate release).

IEP exists Begin at Step 5 in the special educationprocess: implement or re-design IEP; based onnew-found services, obtain child’s release; ifchild not properly evaluated (or not evaluatedwithin past three years), begin at Step 3 or Step8 in order to obtain accurate evaluation; basedon new understanding of child’s disability andneeds, effectuate release.

Eligible for Special Education:no current IEP or placement. Begin at Step 5 or at Step 6 in specialeducation steps: find interim placement or stayput in last placement or design IEP and thenlocate placement.

Not previously identified as eligible forspecial education Begin at Step 2 in special education steps:request evaluation and/or ask court to refer forevaluation; consider ex parte evaluationsthrough delinquency system in order toexpedite special education evaluation process;explore failure by school and other publicagencies to “find” the child previously (seeStep 1 in special ed. steps); look for appropriate

interim placement services. Work with “treatment” and educationalpersonnel at the institution to understand thechild’s general status, behavior, andadjustment, and to determine the child’s schoolstatus. Based on special education actions(including provision of services not previouslyavailable or supplied to the child), either movethe court for child’s release or persuadeexecutive-branch authorities to release thechild).

IEP exists: school personnel at theinstitution not implementing the IEP. Locate appropriate school placement in thecommunity, with related services and transitionservices. Seek agreement from authorities torelease the child. If agreement not reached,challenge the educational placement in aspecial education hearing; compel attendance athearing (to the extent strategically helpful) ofinstitution personnel; also, challenge theplacement, to the extent legally possible, asviolating child’s right to care and rehabilitationor treatment in delinquency commitment.

IEP exists; child receiving appropriateservices at the institution. This scenario is unrealistic. If it ever occurs,determine whether, based upon provision ofeducational and other services, the child hasbeen rehabilitated; argue accordingly forrelease.

No current IEP Enlist cooperation of education, mentalhealth, and other institutional staff to join withthe child, the parent, and other persons invitedby the parent to design an appropriate IEP withrelated services, transition services, andbehavioral supports to allow for safe,productive release of the child.

Child slated for placement at a residentialtreatment facility; child does not want to go Prepare IEP that provides for all appropriatespecial education, related services, andtransitional services (including, as appropriate,wraparound services with in-home familycounseling, drug counseling, externshipopportunities, job coaching, etc.); argue thattwenty-four hour, residential treatment isunnecessary and, in terms of special educationlaw (and delinquency law, if applicable lawallows the argument) not the least restrictiveenvironment.

Child in incarceration facility, not receivingappropriate services: It is not realistic to assume that counsel canpersuade authorities to release the child basedupon the strategies described above; childwould prefer a residential treatment facility. Prepare an IEP with participation of above-described personnel and invitees of parent andchild to require residential treatment placement.

2-21

Cha

pter

Tw

o: S

trat

egie

s for

Usi

ng S

peci

al E

duca

tion

Law

Sum

mar

y of

Str

ateg

ies f

or O

btai

ning

Rel

ease

from

Det

entio

nor

Oth

er in

carc

erat

ion

For

Del

inqu

ency

Clie

nts

Chi

ld A

rres

ted

Faci

ng P

re-tr

ial D

eten

tion

(Or C

hild

Fac

ing

Prob

atio

n/Pa

role

Rev

ocat

ion)

Bas

ed o

n sp

ecia

l edu

catio

n ac

tions

(loc

atin

gse

rvic

es n

ot p

revi

ousl

y av

aila

ble

or c

urre

ntly

supp

lied

to th

e ch

ild),

argu

e th

at th

e ch

ild w

illre

turn

for f

utur

e co

urt h

earin

gs a

nd w

ill n

otco

nstit

ute

a th

reat

to th

e co

mm

unity

.

IEP

exis

ts:

child

in c

urre

nt sp

ecia

l edu

catio

n pl

acem

ent:

reas

onab

le a

ppro

pria

te se

rvic

es in

pla

ce

Expl

ain

to c

ourt

inta

ke p

erso

nnel

and

to th

eju

dge/

hear

ing

offic

er th

at a

ltern

ativ

e-to

-de

tent

ion

prog

ram

is in

pla

ce; g

et p

aren

t and

scho

ol su

ppor

t (te

ache

r or c

ouns

elor

as w

itnes

sat

det

entio

n he

arin

g) to

requ

est t

hat c

ourt

not

dist

urb

curr

ent s

ervi

ces t

o ch

ild; i

f del

inqu

ency

char

ge a

rises

from

alle

ged

cond

uct a

t sch

ool,

expl

ore

whe

ther

cha

rge

is a

n at

tem

pt b

y sc

hool

pers

onne

l to

circ

umve

nt th

eir o

blig

atio

ns to

educ

ate

the

child

(inc

ludi

ng “

stay

put

” rig

ht o

fch

ild);

if ch

arge

invo

lves

alle

gatio

n of

wea

pon,

drug

s, or

“da

nger

ousn

ess”

at s

choo

l, ex

plor

epo

ssib

ility

of I

DEA

45-

day

inte

rim p

lace

men

tas

aff

irmat

ive

stra

tegy

for d

efea

ting

dete

ntio

n;fo

r tru

ancy

cas

e, c

halle

nge

cour

t’s ju

risdi

ctio

nba

sed

upon

IDEA

exh

aust

ion

clai

m a

nd d

efin

i-tio

n of

“tru

ancy

”.

IEP

exis

ts: c

hild

in sp

ecia

l edu

catio

n pl

ace-

men

t, bu

t not

rec

eivi

ng a

ppro

pria

te se

rvic

es(in

clud

ing

rela

ted

serv

ices

like

cou

nsel

ing,

tran

sitio

n se

rvic

es, a

nd b

ehav

iora

l sup

port

s)

Expl

ain

to c

ourt

inta

ke p

erso

nnel

and

toju

dge/

hear

ing

offic

er th

at fr

amew

ork

for a

ltern

-at

ive-

to-d

eten

tion

prog

ram

is in

pla

ce; i

f chi

ldis

trua

nt, e

xpla

in th

at c

ouns

el w

ill e

nsur

e th

atre

late

d se

rvic

es (i

nclu

ding

tran

spor

tatio

n an

dco

unse

ling)

can

be

in p

lace

rapi

dly;

mee

t with

scho

ol p

erso

nnel

to g

et a

ppro

pria

te se

rvic

es in

plac

e or

impl

emen

ted;

to th

e ex

tent

nec

essa

ry,

begi

n at

Ste

p 5

of sp

ecia

l edu

catio

n st

eps t

oen

forc

e im

plem

enta

tion

or re

-des

ign

of IE

P.

Iden

tifie

d as

elig

ible

for

spec

ial e

duca

tion:

no c

urre

nt IE

P or

pla

cem

ent

Expl

ain

to c

ourt

inta

ke p

erso

nnel

and

to th

eju

dge/

hear

ing

offic

er th

at th

e ch

ild h

as (a

nd th

epa

rent

has

, on

beha

lf of

the

child

) a ri

ght t

oap

prop

riate

serv

ices

that

, in

effe

ct, w

ith c

onst

i-tu

te a

com

preh

ensi

ve, a

ltern

ativ

e-to

-det

entio

npr

ogra

m; t

o th

e ex

tent

nec

essa

ry, d

emon

stra

teth

at sc

hool

syst

em p

erso

nnel

hav

e vi

olat

ed y

our

clie

nt’s

righ

ts to

serv

ices

and

ass

ure

the

cour

t of

your

inte

ntio

n an

d ab

ility

to o

btai

n ap

prop

riate

serv

ices

. Be

gin

at S

tep

5 or

at S

tep

6 in

the

spec

ial e

duca

tion

step

s: fi

nd in

terim

pla

cem

ent

or st

ay p

ut in

last

pla

cem

ent o

r des

ign

IEP

and

then

loca

te p

lace

men

t; ex

plor

e po

ssib

le c

olla

-bo

ratio

ns b

etw

een

pre-

trial

del

inqu

ency

auth

ority

and

scho

ol sy

stem

to p

rovi

deco

mm

unity

-bas

ed se

rvic

es.

Not

pre

viou

sly

iden

tifie

d as

elig

ible

for

spec

ial e

duca

tion

Con

side

r exp

lain

ing

to c

ourt

inta

ke p

erso

nnel

and

to c

ourt

that

the

clie

nt li

kely

has

unm

etsp

ecia

l edu

catio

n ne

eds a

nd li

kely

is e

ligib

le fo

rco

mpr

ehen

sive

serv

ices

that

you

will

imm

edia

tely

exp

lore

; exp

lana

tion

can

put t

ru-

ancy

and

oth

er b

ehav

iors

in th

e be

st li

ght;

ifpr

oper

, ass

ure

the

cour

t of y

our i

nten

tion

and

abili

ty –

with

you

r clie

nt’s

invo

lvem

ent –

toid

entif

y ap

prop

riate

serv

ices

; Beg

in a

t Ste

p 2

insp

ecia

l edu

catio

n st

eps:

requ

est e

valu

atio

nan

d/or

ask

cou

rt to

refe

r for

eva

luat

ion;

cons

ider

ex

parte

eva

luat

ions

thro

ugh

delin

quen

cy sy

stem

in o

rder

to e

xped

ite sp

ecia

led

ucat

ion

eval

uatio

n pr

oces

s; e

xplo

re fa

ilure

by

scho

ol a

nd o

ther

pub

lic a

genc

ies t

o “f

ind”

the

child

pre

viou

sly

(see

Ste

p 1

in sp

ecia

led

ucat

ion

step

s); l

ook

for a

ppro

pria

te in

terim

plac

emen

t and

serv

ices

.


Gerald's cases:A comprehensive joint special education anddelinquency legal strategy

Gerald1 progressed well through elementaryschool and tested as high as the ninety-eighthpercentile in some areas of academic achieve-ment before his mom's and dad's drug problemsoverwhelmed the family. After his mom'sincarceration and coincident with his dad'sleaving home, Gerald went to stay with an aunt.He repeated the seventh grade three times. Atsome point during those three years, he went tostay with a twenty-one-year-old cousin. Also,during the third year in seventh grade, Geraldallegedly became involved in a fight in school.School officials suspended Gerald from schooland referred the matter to the delinquency court.Prior to the school-fight arrest, Gerald had neverbeen evaluated or identified as eligible forspecial education services. No one had beenattending to his school-related problems prior tothat first arrest.

Counsel (a court-certified law student and aclinical supervisor) obtained a court appointmentto represent Gerald in the school-fight case. (Seecase #1 in illustration 1-1.) Gerald was fourteenyears old. He presented at various times as with-drawn, sullen, and angry. He needed attention.

Based upon advice from counsel, Gerald decided

to employ a special education strategy. Counselaccordingly initiated a special education case,executing a retainer agreement with Gerald andwith his father. (See case #2 in illustration 1-1.)Gerald's father was not available during approx-imately the first year of the special educationcase. With Gerald's and the father's permission,counsel dealt with the cousin and then with theaunt in place of the father during that initial per-iod of the special education case.

With Gerald's permission, counsel described ingeneral terms to the juvenile prosecutor Gerald'sfamily and school situations and Gerald's plan toobtain special education and related services. Counsel negotiated with the juvenile prosecutoran informal diversion of the school fight (simpleassault) case. The parties accordingly asked thecourt to continue the simple assault case forthree months; the court scheduled a statushearing for three months, with the partiesanticipating a mutual request for a dismissal.During the ensuing months, counsel shepherdedGerald through the special education evaluationprocess and, following a determination thatGerald was seriously emotionally disturbed,prepared to develop an IEP and to seek anappropriate placement.

Gerald was arrested – during this same period –and was charged with distributing cocaine. (Seecase #3 in illustration 1-1.) The cocaine sale,allegedly by Gerald, was from inside a "crackhouse", at the front door, and the buyer was anundercover police officer. The sale preceded alarger-scale police action to raid the house. Boththe sale and the raid occurred on a snowy night.During the raid of the house, several young menfled through the back of the house and throughan alley. The police apprehended Gerald in thatalley; they apprehended an eighteen-year-old male, A.B., as he attempted to flee from the backof the house. A.B. and Gerald were approx-imately the same height and weight, and theywere wearing similar clothing at the time of theirarrests. The police found no drugs on Gerald,but they did find on him a pre- recorded $20 bill

1Name is changed to protect anonymity ofclient.

!!!Prior to the school-fight arrest,

Gerald had never been evaluated oridentified as eligible for special

education services.!!!


allegedly used by the undercover officer topurchase the drugs. The court released Gerald tohis aunt pre-trial, and set a date for trial.

Public school system personnel – in response tocounsel’s special education advocacy – placedGerald into an “appropriate” special educationalprogram with necessary psychological and

speech services. The placement also providedfifteen hours per week of special education in-struction.

At the status date for the simple assault case, thecourt set a new trial date. Counsel’s investi-gation of the simple assault produced evidencethat the complainant and Gerald had engaged inother scuffles – some of which the complainantin this case had initiated. Counsel for Geraldpersuaded the prosecutor to allow counsel to

Case Case/Charge Duration Other Information Outcome

#1 Simple Assault Long-approx.one year

Informal agreement withprosecutor to delay threemonths for status hearing andpossible dismissal; long delaybefore final resolution

Mediation

#2 Special EducationCase - Failure toidentify (child findviolation); denialof FAPE

Longest -approx. sevenyears

Obtained initial placementthat included approx.fifteen hours per week inspecial education; thenvocational placement andG.E.D.; school system fail-ed to serve; developedresidential option; Geraldstayed with G.E.D.program for a while

#3 Possession withintent to distributecrack cocaine

Long-approx.15 months

Much investigation; subpoenato A.B., adult co-defendant;developed argument that co-defendant was guilty and thatGerald had a right to presentsuch evidence; files motionsto suppress evidence

Court granted motion todismiss based upon socialfactors, includingavailability of specialeducation program

#4 PWID-Crack Short-approx.two months

Court granted pre-trialmotion to dismiss basedupon insufficient evidenceto establish guilt

#5 Driving without alicense

Short-approx.three months

Driving uncle’s car duringperiod of time when court wasconsidering dismissing case#2 for social reasons

Dismissal for social reasonsafter a few months’ delay,dismissal based on schoolprogramming primarily


#6 Drug charge Medium -approx. sixmonths

Pre-trial Motions to Suppress Dismissal in pleas with case#7

#7 Drug charge Long-approx.ten months

Ex parte motion forpsychiatric eval. withexplanation of social history);preparation of interlocutoryappeal in case motion denied;filed pre-trialmotions to suppress

Probation

Illustration 1-1: Gerald’s casesarrange for a mediation of the ongoing disputebetween the two children. The mediation led toan agreement between the two children and theiradult family members. Ultimately, the prose-cutor agreed to dismiss the simple assault inlight of the successful mediation of the dispute.

Recognizing that the defense has difficult win-ning undercover drug sales in which the policeofficer has positively identified the alleged sell-er, counsel developed a number of strategies tochallenge the government’s evidence and todelay the day of reckoning in case #3. Counselfiled a motion to suppress the identification andto suppress the tangible evidence (the $20 bill).

Counsel’s investigation revealed that the police,in arresting A.B., had recovered cocaine fromhis pocket. The cocaine recovered from A.B.matched the percentage of purity of the cocaineallegedly sold to the undercover police officer. Counsel developed a theory of misidentificationthat included the possibility that A.B., ratherthan Gerald, had been the seller in theundercover officer’s purchase of cocaine. Counsel researched case law that arguablyallowed the introduction of evidence in Gerald’scase tending to inculpate A.B. Counsel alsoresearched the conflict between A.B.’s fifthamendment rights and Gerald’s sixthamendment rights to call and to confrontwitnesses. Gerald’s counsel served A.B. with asubpoena. A.B. did not show up on one or twotrial dates; counsel argued that A.B. was anecessary witness. Eventually A.B. pled guiltyto possession of the cocaine that he had when

stopped by the police. Counsel obtained awritten statement from A.B. in which, basedupon personal information, A.B. stated thatGerald did not sell cocaine to the undercoverofficer. Counsel prepared an argument – albeit aweak argument – to demonstrate that A.B.’spossession conviction and the undercover salewere part of the same transaction (thus extin-guishing A.B.’s fifth amendment rights). Coun-sel also researched issues that might allow for aninterlocutory appeal in Gerald’s case #3.

Gerald was arrested again and charged withpossession of cocaine with intent to distribute.(See case #4 in illustration 1-1.) The court de-tained Gerald for a week in a medium securityfacility and then, in response to a motion for re-consideration of detention, released Gerald to ayouth shelter house (a detention halfway house). The motion to reconsider relied in part onGerald’s having recently started to participate ina therapeutic school program. Gerald was at theyouth shelter house for an extended time whilecounsel helped him to reconnect with his father;the aunt and the cousin were no longer willing toaccept custody of Gerald. Gerald’s mother, atthat point diagnosed with AIDS, remained incar-cerated in Kentucky.2 Counsel arranged forGerald to visit his mother; the visit was the firstin several years.

2The District of Columbia sends its femaleprisoners to facilities in other states.


The facts of case #4 allowed counsel an oppor-tunity for a quick victory on Gerald’s behalf. Gerald was a passenger in an automobile. Afterstopping the car, the police found drugs under-neath Gerald’s seat. Those drugs, however,were not in plain view, and no other evidenceconnect-ed Gerald to the drugs. Based upon arecently published opinion refining thedefinition of con-structive possession, Gerald’scounsel filed a dis-positive motion arguing that– as a matter of law – Gerald could not be foundguilty of construc-tive possession of the drugs. The trial court granted Gerald’s motion andaccordingly dismissed the case.

Counsel’s delay antics regarding A.B.’s non-availability as a witnesses and other matters incase #3 continued. That case was already closeto a year old. Based upon Gerald’s demon-strated progress in his special education place-ment3 and Gerald’s positive reunification withhis father, counsel filed a motion to dismiss case#3 for social reasons. (The motion is basedupon the legal argument that a child is, by

definition in the District of Columbia, notdelinquent – even if guilty of an offense – if thechild is not “in need of care and rehabilitation.”)

Before the motion to dismiss for social reasonsin case #3 was heard, Gerald was arrested afourth time. (See case #5 in illustration 1-1.) The charge was driving without a license. Thejudge responsible for hearing case #3 and forruling upon the motion to dismiss for socialreasons agreed to continue the hearing on thatmotion. The judge recognized that Gerald wasmaking significant progress overall and thuskept the motion pending. After waiting arespectable amount of time, counsel also filed amotion to dismiss for social reasons in case #5. Event-ually, as Gerald continued to progress athome and in school without any re-arrests, thejudge dismissed both case #3 and case #5.

Gerald interacted actively with counsel. Geraldseemed to appreciate the vigorous advocacyprovided in the delinquency and special educ-ation matters. Within a period of two years, Gerald significantly improved his livingsituation and his school situation. He was not asdepress-ed and did not seem to be sad, sullen, orangry nearly as often as he had been two yearsearlier; his relationship with his father was muchmore stable. Remarkably, his father becamesome-what active in the special educationmatter, speaking with counsel regularly andattending IEP meetings.

Unfortunately, the school system did not provideGerald with the services required by the first twoIEP’s developed over the two years followingGerald’s being identified as eligible for specialeducation. Gerald eventually decided to discon-tinue attending school in the primarily specialeducation program counsel had helped toarrange. Gerald opted instead for a vocationalprogram with a general equivalency degree(G.E.D.), as an alternative. That vocationalprogram was not adequate. Rather than fight forhis education, Gerald stopped attending thatprogram as well.

Counsel represented Gerald and his father in a

3A District of Columbia School of Lawstudent was also tutoring J.M., and J.M. wasresponding positively to the tutoring and to theregular attention.

!!!Gerald seemed to appreciate thevigorous advocacy provided in

the delinquency and specialeducation matters. Within a period of

two years, Gerald significantlyimproved his living situation andhis school situation. He was not

as depressed and did not seem to besad, sullen, or angry nearly asoften as he had been two yearsearlier; his relationship with

his father was much more stable.!!!


special education hearing claiming, among otherthings, that the school system owed Geraldcompensatory education for the time – the threeyears that Gerald spent in the seventh grade –that school personnel failed to identify Gerald asneeding special education services; counsel alsoclaimed a right to compensatory education forthe time that the school system failed to imple-ment Gerald’s IEP’s. Although counselprevailed, obtaining a significant amount ofcompensatory education time as a remedy forthe school system’s failures, Gerald – whosegirlfriend was expecting a baby – was losinginterest in school. Gerald continue to participatein G.E.D. tutoring, but he failed to pass theG.E.D.

Gerald was arrested and charged two more timesin the District of Columbia, both drugpossession charges. (See case #6 and Case #7 inillustration 1-1.) Counsel in a certain sensereplicated the overall strategy in cases #3 and#4, developing additional special educationservices and heavily litigating pre-trial mattersin case #7. Counsel commissioned, on an exparte basis, a psychi-atric evaluation of Geraldin preparation for arranging additional services(including possibly residential treatment).Counsel prepared an argu-ment for aninterlocutory appeal based upon the possibilitythat the court might deny the request for apsychiatric evaluation or deny a subsequentmotion to dismiss. At the same time, counselwrote and filed motions to suppress evidence.The delay occasioned by the litigation andarranging evaluations provided Gerald with timeagain to attempt to stabilize at home and inschool.

Consulting with Gerald's father and with Gerald,counsel prepared to seek a residentialtherapeutic placement for Gerald, either throughthe school system or through the delinquencycourt. Gerald pled guilty to the charges in case#7, in exchange for a dismissal of the charges incase #6. Eventually, notwithstanding continuingmarginal behavior, Gerald was ordered ontoprobation by the Court. He continued tofunction, albeit marginally, in the community.

Counsel continued to work with Gerald on edu-cational and other issues. Law students tutoredGerald for periods of time.4 Gerald remained inthe community without re-arrest, living with hisfather, for the remainder of his "juvenile" years(i.e., past his eighteenth birthday). Gerald'smother was released from prison, but she was infailing health. Gerald's goal was to obtain aG.E.D. and to get a job. He did not succeed witheither goal. As a young adult, feeling the pres-sure to provide for his child, Gerald went backto drug selling and has been incarcerated forrela-tively short periods in the adult system.

In retrospect, counsel understood that – even atthirteen and fourteen – Gerald was "living on thestreet". The "crack house" and his peers becameGerald's support system during his early teenageyears following the disintegration of his family.For a period of three or four years, his mid-to-late teenage years, however, Gerald reunitedwith his father, returned to school, and by-in-large stayed out of serious trouble. A juvenilepros-ecutor who reviewed Gerald's history –after the facts – expressed surprise that Geraldspent virtually no time in secure detention; thepros-ecutor opined that, absent the specialeducation advocacy and the vigorous defensework, Gerald would have been in detention forsignificant stretches of time. The failure ofadvocacy by counsel in Gerald's case was in notforcing the school system to implementmeaningful, com-prehensive special education,related services, and transition services.

Ray's cases: Designing a meaningful and comprehensive IEP

Ray, as a thirteen-year-old involved in his first

4One law student described her time tutoringGerald as the most meaningful experience in her lawschool career.


delinquency case -- much like Gerald -- pre-sented as sad, sullen, and occasionally angry.Like Gerald, Ray was in many respects livinglife independently, getting insufficient supportor structure. In addition to Ray, his mother has ason, S.L., who is one year older than Ray andfive younger children ranging in age from one toseven years old. Ray receives no guidance,nurture, or support from his father. The house ischaotic; three of the little children sleep in a sofabed with the mother in the living room. They donot seem to have toys. The mother has severalbelts placed around the house; she apparentlykeeps them handy in order to "discipline" thechildren. The family seems chronically to haveinsufficient supplies of food, and they run out offood toward the end of the month. The childrendo not have enough clothing.

Ray was arrested and charged with theunauthorized use of a vehicle. The court releasedRay pending trial, and before trial Ray entered adiversion program. Within a couple of months,Ray was charged with another unauthorized useof a vehicle. Based on that second charge, thediversion program dropped Ray As the pressurein the delinquency system mounted, Ray de-cided, based upon advice of counsel, to pursue aspecial education strategy.

At thirteen, having failed a couple of grades inschool, Ray was in the fifth grade, but he wasachieving academically at the second- and third- grade level. Although he was (and is) slender,he towered over the other kids in his class. Because he was chronically underachieving andhe was so much taller and older than the otherkids, he desperately wanted to be out ofelementary school. Not surprisingly, his schoolattendance started to slip.

On behalf of Ray and his mother, counselrequested a special education evaluation of Ray. School personnel did not conduct theevaluations and did not produce the reports in atimely fashion. The evaluations producedseemed inaccurate. For example, the evaluatorwho wrote the psycho-educational report found

Ray to be mildly mentally retarded, but no oneconducted sufficient adaptive testing to confirmthat conclusion. (Ray described to specialeducation counsel during their first meeting howhe managed to participate in stealing andstripping cars in order to sell parts. Thisdescription alone convinced counsel that thischild is operating above the mild mentalretardation range.)

Following several failed attempts over a periodof months to get school personnel to convene anIEP meeting, counsel managed to negotiate an“IEP deal” with those officials. The deal was toplace Ray in a junior high school program withapproximately fifteen hours of special educationclasses per week with various related services,including counseling. As part of the deal, themembers of the IEP multi-disciplinary teamagreed to re-convene and change the IEP to re-quire a segregated, 100% special educationsetting for Ray if the less-restrictive, fifteen-hour-per-week program proved to be ineffectual. School personnel did not implement the IEP, butthey did allow counsel to place Ray into twodifferent school programs. Neither was

!!!Following several failedattempts over a period of

months to get school personnelto convene an IEP meeting,

counsel managed to negotiatean “IEP deal” with those

officials. The deal was to placeRay in a junior high school

program with approximatelyfifteen hours of special

education classes per weekwith various related services,

including counseling.!!!


effective.

Counsel filed a request for a special education,due process hearing claiming that the schoolsystem personnel had failed for several years toidentify Ray as a child with a disability; counselalso alleged that school personnel delayedillegally to conduct the evaluations and thenfailed to implement the first IEP. The hearingofficer granted Ray and his mother a couple ofyears of compensatory education and orderedthe school system to work with the parent toproduce another IEP.

Meanwhile, Ray was not going to school. Hefailed to appear for a court hearing. The policepicked him up on a custody order, and, as aresult, a judge ordered that Ray stay in a youthshelter house. Ray arrived at the shelter houseand announced that he did not intend to stay. The counselor on duty asked Ray to wait untilafter her shift to leave. Ray accommodated thatrequest, leaving five minutes after the counselor. Soon thereafter the court issued another custodyorder.

On behalf of Ray, counsel worked with schoolofficials to design a new IEP.5 This IEP con-tained the following elements: 100% specialeducation placement (thus, given the shortage ofappropriate, 100% special education, publicplacements, ensuring that Ray could select aprivate school placement); computer-assistedinstruction in academic course work; dailytutoring; family counseling with a psychologistor a licensed clinical social worker in order todesign and implement a non-aversive behaviormanagement program; and -- as a transitionservice -- assistance, presumably by the tutor,learning to cook and put out breakfast each dayfor the family.

The school system did not locate a placementand did not issue a notice of placement. Counselattempted, with limited success, to interest Rayin going to interviews at private or public schoolpro grams. Ray may have been wary of going tointerviews based upon a concern that someonewould become aware of the extant custodyorder. For more than a year, Ray remained in thecommunity without being re-arrested.

Counsel located John Malloy,6 a graduatestudent in the Department of Special Educationat a nearby, major university. This graduatestudent agreed enthusiastically to become a tutorfor Ray and for his brother. Based upon thefailure of public school officials to provide theservices in Ray's IEP, counsel obtained a hearingofficer's determination that Ray was entitled toprivate tutoring from John Malloy at publicexpense. Moreover, the school system's attorneyagreed to designate the private tutoring, for fourhours per day, as an interim placement until theparties located an appropriate school programfor Ray.

Counsel has attempted to arrange for in-homefamily counseling and individual counseling, aswell, for Ray The therapist, according to theIEP, must be capable of helping the family tocreate a behavior management program. Theintent behind this requirement is to train themother to reinforce Ray for positive behaviorand, as a consequence, to lighten the mother'sload. For example, Ray and his mother couldagree that he will receive positive, alone timewith his mother in exchange for Ray's babysitting with the younger siblings for a shortperiod of time. (The same arrangement withRay's older brother would make it possible forboth Ray and his older brother to have alonetime with the mother.) Or Ray's mom mightagree to help Ray obtain clothing items inexchange for his keeping a curfew. A therapistdid agree to begin therapy with the family in5Counsel and Ray’s mother also worked

together with school officials to design an IEP forRay’s older brother, ultimately, the two IEP’s –Ray’s and his brother’s – were similar. 6The name is fictitious.


their home; he had two or three sessions with thefamily. He then discontinued after the mother'slandlord locked her out of her house(presumably based upon a claim of non-paymentof rent).

Ray met with the tutor on a regular basis.Among other goals, the tutor attempted to assessRay's current educational achievement and topre- pare Ray academically and emotionally toreintegrate into school. This relationship wasproductive and helped Ray to stabilize and avoidlaw violations. After a year, however, Ray wasre-arrested and, based upon his previous non-appearances and abscondences, Ray was de-tained. In detention for two days, Ray continuedto meet with his tutor and, perhaps moresignificantly, expressed a keen interest inhelping counsel to identify an acceptable specialeducation school.

While the story of Ray does not appear to be anunqualified success, one must consider whetherRay has done better or worse than he wouldhave done without the special educationintervention and, indeed, whether he is involvedin more or less delinquent conduct, and whetherhe is spending more or less time in securedetention than he would have without theintervention. By these measures, Ray isimproving. In addition, his mother-- even withher own nearly overwhelming circumstances(many of which have not been detailed in thisaccount) -- is still at least marginally involvedwith Ray.

Ray has a private tutor with whom he hasestablished a meaningful and socializingrelationship. Ray now calls counsel regularly toask for advice and to discuss his many needs,problems, and aspirations. Moreover, Ray has agood IEP that calls for many significantservices, plus Ray has a couple of years ofcompensatory education "in the bank". He willbe able to use those years of compensatoryeducation to obtain individual lessons,

recreational and transitional services above andbeyond those required by the standard ofappropriateness. The primary challengesoutstanding in Ray's case are helping the motherto stabilize her situation, getting the publicschool system to implement Ray'scomprehensive IEP, and getting Ray to stickwith that comprehensive program as itmaterializes for him.

Chapter

Three

An Organizing Strategy for Children’s Advocates: Combining

Special Education with Delinquency Representation

As part of the case

aggregation strategy,

on of the goals is to

convince persons in the

juvenile justice and

educational systems

to educate and empower

Written by children rather than to

Joseph B. Tulman punish and contain them.

3-2 Chapter Three: An Organizing Strategy for Children’s Advocates

The nominal goal of the delinquency system isto provide care and rehabilitation for childrenwho have committed offenses. However, careand rehabilitation are almost invariably illusory.Decision-makers dispense rhetoric rather thanjustice, and so-called child care professionalsoften provide nothing more than a prison cell.

In failing to provide care and rehabilitation, thestate is applying the law in a manner that is in-consistent with Its own stated norms andprojected outcomes. Gary Bellow, a clinical lawprofessor at Harvard, has described genericallythis type of problem in the following way: apeople processing institution is ignoring its ownnorms and standards to the detriment of poorpeople, some of whom are our clients. Anadvocate for those adversely affected faces thedaunting and complex challenge of attempting toinfluence judges and other decision-makers toapply their own rules notwithstanding a traditionof ignoring those rules and rationalizinginjustice. Professor Bellow prescribes a "caseaggregation strategy" through which advocatescollectively concentrate resources on one kind ofcase in order to vindicate the law and, of course,enforce the rights of the clients and othersimilarly-situated poor persons.

Professor Bellow and his students recognizedthat slumlords in Jamaica Plain were, amongother things, ignoring their obligations to obeyhousing codes; at the same time, tenants werenot asserting their rights to claim housing code

violations and to withhold rent in defendingeviction actions. As a result, the courts were notapplying or enforcing the law that protectedtenants. The Harvard clinicians declared JamaicaPlain an "eviction-free zone" and concentratedtheir efforts exclusively on eviction cases withhousing code defenses. Ultimately they suc-ceeded in injecting these defenses into evictioncases and in effectively halting evictions in thetargeted area.

I. Case aggregation strategy

In the District of Columbia, faculty and studentsin the University of the District of ColumbiaSchool of Law (UDCSL) Juvenile Law Clinichave applied – over the past four years – a caseaggregation strategy to the plight of children inthe delinquency system.1

The clinicians ask children whom they rep-resent in delinquency cases to consider asserting,with the clinicians' help, educational rights thatparallel or strengthen the rights to care andrehabilitation that nominally underlie thedelinquency system.

The clinicians initially identified approximatelyfifty percent of the clinic's delinquency clientsfor whom special education advocacy wasappropriate. In gaining new delinquency clientsover the past four years of the Special EducationAdvocacy Project, the clinicians havemaintained this rate of approximately fiftypercent in which pursuing special educationrights is appropriate.

1University of the District of ColumbiaSchool of Law (UDCSL) Juvenile Law Clinic facultyand students have applied the strategy also tochildren in the dependency (child neglect) system.For current purposes, the focus will be reportingexclusively on efforts affecting children in thedelinquency system. The University of the District ofColumbia School of Law was formerly known as theDistrict of Columbia School of Law (DCSL) prior tomerging with the University of the District ofColumbia in 1995.

!!!An advocate for those adverselyaffected faces the daunting and

complex challenge of attemptingto influence judges and other

decision-makers to apply theirown rules notwithstanding a

tradition of ignoring those ruleand rationalizing injustice.

!!!


"Appropriateness" in this context suggests thatthe client could benefit strategically and sub-stantively from this parallel advocacy and thatthe client agrees to pursue special educationrights.

Part of the case aggregation strategy is changinginstitutional attitudes regarding the clients andthe specific rights being pursued. Clinicians atthe University of the District of ColumbiaSchool of Law (UDCSL) have conducted bi-annual seminars or training sessions for delin-quency and neglect attorneys and for otheradvocates, training a total of more than onehundred attorneys and, in addition, other non-lawyer advocates. These seminars last for atleast nine hours over a three-day period andcover much of the material presented in thismanual. Trainees also receive a comprehensiveset of special education materials, includingstatutes, regulations, cases, resource lists,substantive outlines, charts (summarizing thelaw and process), and hypotheticals. Participantspay a small amount (usually $150) to attend thetraining and to receive the materials. This feeseems to ensure for many participants a moreserious attitude toward the endeavor. In four ofthe past eight semesters, UDCSL clinicians haveinvited a limit ed number of attorneys to parti-cipate in classes and in supervised, special edu-cation casework along with the law students.This arrangement is, labor intensive for thesupervising clinicians, but it has been effectivein preparing a handful of attorneys to practicespecial education law.

Clinicians at UDCSL have focused considerableenergy on eliciting support from the local publicdefender's office for using special educationadvocacy as a parallel for delinquency defense.The orientation training for new publicdefenders contains a short session conducted bya UDCSL clinician on the efficacy of pursuingspecial education services for delinquencyclients. In response to enthusiastic invitationsfrom UDCSL Juvenile Law Clinic faculty toattend (without charge) the nine-hour specialeducation law and practice seminar, a number of

public defenders have attended. In addition,UDCSL clinicians have provided specialeducation advocacy for a number of publicdefender service delinquency clients.

Clinicians from UDCSL present this parallelstrategy in shorter (one or two-hour sessions) atannual conferences for delinquency and criminaldefense attorneys and for delinquency andneglect attorneys. In the fall of 1994, UDCSLclinicians presented a ninety-minute training forlocal judges. Approximately forty-five (out ofsixty) judges attended that training. In June of1995, the Juvenile Law Clinic – with backingfrom the Robert F. Kennedy Memorial, theAnnie E. Casey Foundation, and others –sponsored a symposium on the unnecessarydetention of children in the District of Columbia.The papers and presentations have beenpublished in the D.C. Law Review. SeeSymposium, The Unnecessary Detention ofChildren in the District of Columbia 3 D.C. L.REV. 193 (1995). A significant focus in thesymposium was the tendency to confusedisabilities with dangerousness and, thus, topreventively detain children unnecessarily onthat basis. In the summer of 1995, UDCSLclinicians conducted a training for fortyemployees (educational staff and others) at thejuvenile prison.

Parents who prevail against the school system ina special education matter are entitled by federalstatute to attorneys' fees at market rate. Childrenin the delinquency system, and in particularchildren who are incarcerated, are likely to havespecial education needs that are unmet. Delin-quency attorneys are therefore likely to have

!!!Part of the case aggregation

strategy is changinginstitutional attitudes regarding

the clients and the specificrights being pursued.

!!!


caseloads in which at least half of their clientscould benefit from special education advocacy,and the attorneys could make more moneypursuing special education services for theirclients than if the attorneys were to provide onlydelinquency representation. In the District ofColumbia, attorneys for indigent children incourt-appointed cases receive payment at thestated rate of $50 per hour, billable by theminute with low case caps and an annual cap perattorney. The market rate for special educationrepresentation, in contrast, ranges between $100to $230 per hour with no caps of any sort.

Based in part on this financial incentive fordelinquency attorneys to tackle specialeducation issues, UDCSL clinicians assumedthat training delinquency attorneys in the lawand practice of special education would leadrapidly to a broad expansion in access to specialeducation legal services for parents whosechildren are involved in delinquency cases.University of the District of Columbia School ofLaw clinicians theorized also that the mountingadvocacy would place significant financial,programmatic, and political pressure on thepublic school system to provide better servicesfor poor children.2

Although progressive change almost alwaysseems to take longer than anticipated, attorneystrained by UDCSL are beginning to provide spe-cial education advocacy, and the number of spe-cial education hearings in the District ofColumbia is climbing significantly month by

month. As people have become aware of theneed for special education representation and thestrategic advantages, UDCSL clinicians havereceived a growing number of requests toprovide representation. To date, UDCSLclinicians have made some referrals for specialeducation representation and intend either toformalize a referral network or to establishclosed panels of attorneys for communityorganizations and parent groups seeking specialeducation representation. It is premature to predict whether the public school system willrespond to the mounting pressure by creatingmore and better programs and enhancingservices for special education students.3

When UDCSL began to combine specialeducation with delinquency representation, there were no lawyers in the District of Columbiaproviding special education legal representationto clients they represented in delinquency cases.In addition, lawyers representing children indelinquency matters were not referring theirclients to other lawyers for special educationlegal representation. Both methods for obtainingspecial education representation are nowoccurring. Judges also are now referring childrenwith delinquency cases to attorneys who providespecial education representation.

Since the fall of 1995, UDCSL clinicians haveexpanded the organizing effort. A group of law students with a supervising clinician (as well astwo or three private attorneys) are representingparents of children4 at the juvenile prison (Oak

2The school system has been providingservices disproportionately to children whose parentscould afford to hire attorneys and to advance moneyfor private special education services. Based onSupreme Court case law interpreting the Individualswith Disabilities Education Act (IDEA), a parentwhose child is not receiving appropriate specialeducation services is entitled to obtain privateservices at public expense. This remedy isremarkably effective for people who have money, butpoor people typically are not able to take advantageof this remedy.

3Understandably, students of color who livein "inner city" neighborhoods are less likely thanwhite children from affluent neighborhoods to seekprivate, predominantly white schools. These poorclients typically would prefer quality public schoolprograms in their own neighborhoods.

4Special education rights generally, but, asdiscussed in subsequent chapters, not alwaysexclusively, inure to parents on behalf of theirchildren with disabilities. In the context of specialeducation representation, UDCSL Juvenile LawClinic faculty and law students typically execute


Hill Youth Center).5

For the majority of the clients, appropriatespecial education services could constitute -- asa matter of delinquency law -- sufficient careand rehabilitation or, for detained children,sufficient preventative services to justify releasefrom incarceration. For clients with records ofadjudications for violent offenses for whomrelease from secure placement is not likelyimmediately, the clinicians expect to demon-strate that education and treatment personnel atthe juvenile prison are not providing, and are notable to provide, appropriate special educationservices. Federal law requires states to provideappropriate special education and related ser-vices to children with disabilities; therefore, theclinicians anticipate that special educationadvocacy for those clients with violent recordswill lead to changing the placements for thoseclients to placements that can provideappropriate services. One must assume thatprison officials will not often be able to provideappropriate special education services at theprison, so release to home or to a bettertreatment environment will be a likely result in atypical case.

II. Roles of persons in the juvenile justicesystem

Clinicians at UDCSL intend for the organizing

activities described above, as part of the caseaggregation strategy, to convince persons in thejuvenile justice and educational systems toeducate and empower children rather than topunish and contain them. Ideally, advocates forchildren can influence every group of actors inthe system to shift their conception of the child.The following descriptions by role explore insummary fashion the impact of this shift.6

A. The Child

A child's self-interest in getting released fromincarceration or in having a delinquency casedismissed can prompt that child, in response to asuggestion from an attorney or other advocate,to re-think education rights. Advocates candiscuss with a child, in addition, a strategy forobtaining services that might make schooltolerable and even productive. Some children"choose" delinquency because they see norealistic chance of success in school and in thelegitimate job market. Some are depressed andhave few positive expectations for the future.7

In those circumstances, a child can benefit fromobserving an advocate who is asserting – both to the child and to others – that the child cansucceed if there is an Individualized EducationProgram (IEP) (including related and transitionservices).8 Furthermore, incorporating the child

retainer agreements with both the parent(s) and thechild.

5In the fall of 1995, a second section of theUDCSL Juvenile Law Clinic students with asupervising clinician offered their services to organ-izations of parents whose children have specialeducation needs and to community-based organ-izations that recognize an interest in developing thecapacity to advocate for special education servicesfor their members. A third section of clinic studentswith a supervising clinician, working with attorneyswho are interested in learning special education lawand who represent children and parents in neglectcases, are providing special education representationfor neglected children.

6This presentation does not includedescriptions of many roles (e.g., probation officer,teacher, therapists and evaluators) that are clearlyrelevant to the child's treatment in the delinquencyand special education systems. The reader can derivesubstantive and strategic import from descriptions ofthe included roles that generalize to those notincluded.

7These descriptions of problems that maylead to delinquent behavior are illustrative and arenot intended to be exhaustive.

8The terms "related services" and "transitionservices" are terms of art in special education law."Related services" are non-educational services, suchas counseling, transportation, and occupational


into the process of developing an IEP is alsotherapeutic and empowering for the child.

Persons who participate in UDCSL’s specialeducation law and process training sessionsoften ask whether it is fair or productive tocounsel the child to adopt a label as “disabled”in order to avoid harsh treatment in thedelinquency system. First, if the label does notfit, the child probably cannot and should notwear it. As a matter of fact, the advocate inmany cases can help the client avoid thenegative aspects of special education labeling.For example, school personnel have historicallyover-identified minority children as mentallyretarded (MR); a special education advocate canforce school personnel as a matter of law andfact to remove an improper MR label. Similarly,school personnel may over-identify childrenknown to have delinquency charges as seriouslyemotionally disturbed (SED); an advocate candefeat an improper SED label. In some cases,children become "behavior problems" only afterschool personnel have ignored for years thechildren's learning disabilities. Second, manypeople in schools and in courts label childrenwho become delinquency clients in ways that arenot fair and not productive. Some of those labelsare, for example, "stupid", "dangerous", "truant",and "incorrigible". The advocate should help the

child and the child's parent(s) develop strategiesto overcome negative labels. If special educationservices would be helpful for the child, theadvocate may be able to suggest ways in whichthe child can avoid negative aspects of thespecial education label while still obtainingservices. Third, the child as client (as well as thechild's parent(s)) is in a position to consider,with the advice of counsel, the pros and cons ofpursuing special education services. For someclients, assuming a label of, for example,"learning disabled", "seriously emotionallydisturbed", or "mentally retarded" may be anunacceptable alternative. In such a case, theadvocate would not pursue special educationservices.

B. The defense attorney: Ethical problems

An attorney’s job as a litigator is to tell a con-vincing story supported, of course, by demonstr-able facts and pertinent legal authority. In delin-quency cases, a defense attorney can advocateeffectively by changing the essential narrative,starting with a re-definition of the main char-acter. One might list words commonly associ-ated with “delinquent” in the popular culture andcontrast that list with a list of words associatedwith “special education student”, and then con-sider which list describes a more sympatheticmain character. In re-casting the delinquencydefendant as a child with disabilities who hasrights to special educational services, thedefense attorney can think more like a civilplaintiff’s attorney litigating to obtain rightsdenied illegally.

Representing a child in a delinquency matter, anattorney is bound ethically, in essence, to honorthe child's own perception of best interest.Frequently attorneys violate this ethicalprescrip-tion, paternalistically superimposingtheir sense of clients' best interest, This violationof trust, no matter how well-intended, hasmultiple negative

therapy, that are needed to make educationsuccessful. "Transition services" are services thathelp the student with disabilities make a successfultransition from school to work, college, andindependent living.

!!!In some cases, children become“behavior problems” only afterschool personnel have ignored

for years the children’s learningdisabilities.

!!!


effects. Often clients face harsher treatment orseparation from their families due to their ownattorneys providing confidential information(e.g., suggesting that the family cannot protectthe child). Furthermore, a child whose attorneyviolates trust may become more mistrustful ofauthority; thus, a well-intentioned, butmisguided attorney can compound a child'sproblems. An attorney who obtains a child'spermission, on the other hand, to pursue specialeducational services is in a position to addressthe child’s underlying problems and, at the sametime, provide an effective defense to adelinquency charge. The pursuit of specialeducation services occurs through anadministrative process that is separate from thedelinquency proceedings. The attorney and theclient(s), based upon client-centered problemsolving, can control whether they provideinformation concerning the special educationprocess to the delinquency court.

C. The parent or guardian

Many parents of children in the delinquencyobtain rights denied illegally. system feel thatthey have tried but failed to help their child andthat they cannot find meaningful services fortheir child in the community. Parents of incar-cerated children typically encounter a dilemmathat provides no positive alternative: on the onehand, the child is not safe or controlled in thecommunity; on the other hand, the child isharshly treated in the juvenile prison andreceives no meaningful services or education

there. The parent is likely to feel blamed byothers, at least in part, for the child's failure. Theparent is also likely to feel that the public schoolsystem failed the child and is not responsive.Moreover, the delinquency process providesessentially no formal role for the parent; thus,the parent will likely express frustration(regarding the parent's own ineffectiveness),defensiveness (over the blame inherent in thechild's "failure"), and anger (at the child and thesystem) by withdrawing emotionally and evenphysically from the delinquency process.

In designing an individualized, special educationprogram for a child, the focus is appropriateservices that will ensure progress rather than onblaming the child or the parent. The schoolsystem by law must provide appropriateservices; school personnel cannot avoid thisobligation by arguing that the services do notexist or that there is insufficient funding.Therefore, the parent, when armed withknowledge of the law, will likely feel moreeffective in dealing with school personnel. As asecondary consequence, the parent can workwith the child's advocate to introducemeaningful treatment options for the child in thedelinquency proceedings, thus diffusing thedifficult dilemma described above in which theparent reasonably perceives that neither prisonnor the community provide adequate care for thechild. For example, the parent can obtain accessto psychological counseling, even withoutgenerous, private medical insurance coverage.The parent and child can also work with thespecial education multi-disciplinary team toidentify comprehensive transitional services thatprovide the child with a realistic opportunity tosucceed in post-secondary education, work, andindependent living.

In the special education process, the parent has akey, formal role. The parent asserts the educa-tional rights of the child and, as a member of thetreatment team, provides intimate knowledge ofthe child and helps to design an IEP. In thespecial education process, in stark contrast to thedelinquency process, the child and the parent are

!!!An attorney who obtains a child’spermission, on the other hand, topursue special education services

is in a position to address the child’sunderlying problems and, at the same

time, provide an effective defenseto a delinquency charge.

!!!


likely to have a common set of goals9 and some-times even a common adversary (the schoolsystem). The child's parent or guardian can thinkof the child as needing opportunity rather than asungovernable or oppositional. It can be great forthe child to see the parent advocating, and greatfor the parent to see the child advocating. Inother words, the special education processpotentially provides psychological, procedural,and substantive satisfaction for the parent. Theparent has a formal role and a voice in theprocess, and the process is arguably moreunderstandable in some significant ways thanthe delinquency process.

D. The Judge

Judges also can conceptualize cases from adifferent perspective as advocates for childrenwith disabilities present affirmative plans basedupon a child's legitimate needs that wentundiagnosed and untreated often for five ormore years. Judges may have a difficult timeaccepting an argument that the delinquency orjuvenile justice system failed the child; however,an argument that the educational system can

provide services (or failed the child and mustnow provide services) may be more palatable.Generally speaking, judges get too fewconstructive choices; they appreciate an attorneygenerating a positive approach that, in addition,does not draw on the court's resources and tendsnot to generate opposition from prosecutors,probation officers, and others. Indeed,representatives of the school system are unlikelyto be in front of the delinquency court, and thecourt has no jurisdiction directly over theeducational matter. The child's advocate is notasking the court to order anything or take actionbased upon special education law. Rather, theadvocate is asking the judge to allow theeducational services that the parent(s) and theadvocate have obtained (or are obtaining) tosubstitute for the usual delinquency responses.The educational system provides answers thatthe judge has few reasons to question and,lacking experience with that system, little basisfor questioning.

Courts often must contend with overcrowdedand recidivism-swollen case dockets in thedelinquency system. In some jurisdictions,therefore, a priority for courts is to move thecases and, if it seems reasonable, get some of thenon-serious cases out of the system. If the judgefeels comfortable that another public system isgoing to be responsible for the child and for thechild's rehabilitation, that judge will be receptiveto a suggestion to close the delinquency case orto put the child under probationary supervisionwith, as a condition of probation, participation inthe special education services provided by theschool system. Judges often fear that dismissinga delinquency case will "send the wrongmessage" to the child, that the child willinternalize a lesson that the system does notexact account-ability. The court avoids thismessage by acknowledging that the educationalsystem will be responsible for monitoring thechild following the dismissal of the delinquencycase. In shifting responsibility for the child tothe school system, the judge may actuallyperceive a fundamental justice if the judgesenses that the school system failed the child

9Clinicians at UDCSL in most specialeducation cases execute a retainer agreement torepresent both the parent and the child; the retaineranticipates that the parent and the child may disagreeon an important aspect of the case and that they willallow the UDCSL clinician (attorney or law student)to help them attempt to resolve the disagreement. Adisagreement that cannot be resolved may result inthe clinic withdrawing from representation due to aconflict of interest. In practice, the clinicians oftenhelp parents and children work through theirdisagreements regarding what services or programsare best for the child, and the clinic rarely withdrawsfrom a case.

!!!The parent is likely to feel blame

by others, at least in part,for the child’s failure.

!!!


previously (perhaps before the delinquencyinvolvement began). Furthermore, the schoolsystem provides services through the specialeducation process that may prevent future anti-social behavior. Hence, the court is likely toperceive the shift of responsibility for the childto the school system as constructive.

Judges too often slip into power struggles withchildren in delinquency cases, exemplified by acase in which a child violates conditions ofprobation and a court, often in anger, revokesprobation. The story line is familiar, but flawed.A judge interacting only periodically andformally with a child is not in a position toengender genuine change in the attitudes of adeviant or perhaps oppositional child. On thecontrary, through the exercise of coercivepower, the judge is recreating a dynamic thatwas at best ineffectual and at worst abusivebetween the child and the child's actual parent.Threats of incarceration from a judge acting asparent-figure may intensify the abused oroppositional child's understandably jaundicedand alienated reaction.

E. Prison personnel and youth services workers

Prison personnel and youth services workers (forchildren who are wards of the state) may feelthat everyone else, including parents, schoolpersonnel, defense attorneys, and even probationofficers, have failed the child before the childends up adjudicated as delinquent andincarcerated. The prison personnel and youthservices workers are left with a child whom theyreasonably perceive to be dangerous or, at least,ungovernable. The parents, teachers, and other

adults in the child's life are largely relieved ofany duties or responsibilities once the child hasbeen committed to the custody of the state. Inaddition, these workers are operating in badconditions often without sufficient financial andprogrammatic resources.

In advocating for special education services for achild who is a ward of the state and perhapsincarcerated, one is not suggesting that theprison personnel or youth services workers havefailed the child; rather, one is identifying a needto pull parents and public school personnel backinto the child's life. Without exception,incarcerated children will be returned – sooneror later – to the community. Prison personneland youth services workers have a stake inmaking that return successful. Involving parentsand public school personnel can facilitate aquicker and more success-ful re-integration. Fordetained children (children incarcerated pendingtrial or disposition), prison staff (particularly theedu-cation staff) and youth services workers, canassist the child in obtaining an IEP that will takeeffect when the child returns to the communityand that, through its existence, will hasten thechild's return to the community. For childrenwho have been incarcerated through a dis-positional order, prison personnel and youthservices workers can facilitate that return bycooperating in the special education process.Children who are incarcerated and who haveeducational disabilities have a right to specialeducation services; hence, special educationlaws provide a means for parents and advocatesto bring additional educational resources to thejuvenile prison. With proper communicationfrom advocates and parents, prison personneland youth services workers may see the potentialfor expanding educational resources at theinstitution as a positive area for collaboration.On the other hand, advocates for children mustcontinuously question whether identifyingadditional resources for an institution (a juvenileprison) is ultimately beneficial.

!!!Judges often fear that dismissing a

delinquency case will “send the wrongmessage” to the child, that the child

will internalize a lesson that the systemdoes not exact accountability.

!!!


The Individuals with Disabilities Education Act(IDEA) is civil rights legislation that blossomedout of the soil of school desegregationprecedents. The majority of incarceratedchildren are children of color who are poor. Inthe District of Columbia, one hundred percent ofthe incarcerated children fit that description.White children and children from wealthyfamilies often avoid delinquency sanctions byobtaining services through private educational ormental health providers. The IDEA offerschildren with disabilities, regardless of their raceor socio-economic status, a similar opportunityto substitute services for punitive treatment(imprisonment). Many front-line workers in thecorrectional system identify in racial and classterms with the incarcerated children and canrecognize the injustice inherent in the system.They might agree that the IDEA is a good toolfor obtaining humane and constructive servicesfor incarcerated children.

An advocate does not "save" children, and thereare no miracle cures in the delinquency system.Pursuing special education services for childrenin the delinquency system does not ensure thechild's success or transform overnight the oftenhorrendous conditions and circumstances thatled to the child's failures. But, engaging the childand the parent in a process with goals thatconcern educating the child and substituting thatprocess and those goals for the delinquencyprocess is an extremely productive approach.How the child and parent negotiate theirproblems and interact with the larger society is,in itself, the essence of the therapeutic endeavor.

!!!An advocate does not “save”

children, and there are no miraclecures in the delinquency system.

!!!

Chapter

Four

School Discipline and Students with Disabilities

Fundamentally, a child with

serious or chronic delinquent

behavior predictably has

experienced consistent school

failure and stagnant school

achievement from an early

point in elementary school.

Written by

Eileen L. Ordover

& Joseph B. Tulman

4-2 Chapter Four: School Discipline and Children with Disabilities

Delinquency defense, school discipline, anddisability issues intersect in a variety of ways.Fundamentally, a child with serious or chronicdelinquent behavior predictably has experiencedconsistent school failure and stagnant schoolachievement from an early point in elementaryschool. Typically, school personnel failed toaddress the child's poor achievement when thatproblem first appeared and for a number of yearsthereafter. The child's unremediated schoolfailure and lack of achievement led almostinexorably to behavior problems, both withinschool and outside of school, and then to truancyand dropping out.1 (Some commentators refer tothis ultimate absence from school as a "forceout" rather than a"drop out".)

Counsel should collect all relevant schoolrecords -- including school discipline records --for a delinquency client. Excavating recordsfrom kindergarten and first grade through thechild's current grade (or the grade in which thechild left school altogether) often unearths astartling pattern of educational neglect,including a failure to diagnose and addresslearning dis-abilities or other education-relateddisabilities, and a corresponding pervasive,punitive, and essentially illegal application ofschool discipline sanctions. Addressing theschool discipline issues thus becomes a vital partof obtaining appropriate educational services,and of using those services as part of a defensestrategy.

A child's school failure and discipline history,and the parallel history of school personnel'sfail-ure to diagnose and address the child'seduca-tion-related disability, may providecounsel with a basis for seeking a dismissal of a

delinquency matter or for mitigating the lengthand severity of the delinquency disposition. SeeOliver’s case in Chapter 5 on page 5-9.

Counsel may find that a client who is eligible forspecial education is concurrently facing delin-quency charges, as well as suspension or expul-sion. Indeed, a client may face disciplinary pro-ceedings in school for the same incident forwhich delinquency charges have been filed. Insuch a situation, counsel must consider not onlyhow to obtain and use special educationservices, but also counsel must consider howschool in-vestigations and disciplinaryproceedings may potentially compromise orbolster the defense. For example, a prosecutormay attempt to admit in a delinquency casephysical evidence seized by school officials inviolation of the Fourth Amendment rights of thestudent/defendant. Counsel must inform a childof the Fifth Amend-ment privilege against self-incrimination and must warn a child who faces adelinquency pro-ceeding that a prosecutor mightseek to use state-ments made by that child if thechild testifies in the related school disciplineproceeding.

Defense counsel might find that a disciplineproceeding presents an unusually rich oppor-tunity to "discover" the witnesses and evidencethat a prosecutor ultimately will present at asubsequent delinquency trial. Indeed, in mostjurisdictions, delinquency discovery rules -- likecriminal discovery rules -- allow for relativelynarrow opportunities for defense counsel toobtain information about the government's caseagainst the accused. The government is notobligated, generally speaking, to provide namesof witnesses or witnesses' statements prior to the

1 Obviously, other factors, as well, oftencontribute to deviant behavior. Physical abuse, forexample, is highly correlated to deviant conduct inschool, at home, and in the community. Moreover,certain education-related disabilities may manifest indisruptive behavior in school whether or not the childpreviously experienced extended periods of schoolfailure and educational neglect.

!!!Counsel may find that a client who is

eligible for special education isconcurrently facing delinquencycharges, as well as suspension or

expulsion.!!!


delinquency fact finding hearing. The usual civil discovery tools (e.g., interrogatories, requestsfor admissions, depositions) also are notavailable in delinquency matters. A schooldiscipline hearing, therefore, can function as apreparatory "dry run" of the delinquency trial.

In order to deal effectively with these prospectsregarding the inter-play of school discipline,delinquency, and disability, counsel must locateand understand -- in addition to delinquency andevidence law -- the following four bodies of law:(1) The Individuals with Disabilities EducationAct (IDEA): The IDEA contains substantive andprocedural protections against disciplinaryexclu-sion from school of students withdisabilities. The IDEA also imposes upon schoolpersonnel an obligation to provide appropriateservices to address behavioral issues of studentswho are disabled.2(2) Section 504 of the Rehabilitation Act (§504)and the Americans with Disabilities Act (ADA):Section 504 and the ADA, and the regulationsimplementing them, protect against discrimin-ation on the basis of disability in schooldiscipline.(3) Case Law Regarding Constitutional Rights inthe School Setting: Students with disabilities,like all students, are entitled to certain basicconstitutional protections in school disciplineand investigations. The Supreme Court andlower courts have developed a body of casesinterpreting and applying these protections.(4) Local and State Laws, Ordinances, andRegulations Relating to School Discipline:Local ordinances and school regulations (andperhaps state laws and regulations) define, in thefirst instance, what conduct by studentsostensibly warrants sanctions, what process isdue to students facing school discipline, and thestringency and duration of the possiblesanctions. In addition, state and local laws and

regulations incorporate and, at times,reformulate governing principles and provisionsfrom the IDEA and the other sources of lawreferenced in numbers (1) - (3), above.

In light of these relevant bodies of law, thischapter primarily presents the various rightsimplicated when school officials imposepunitive discipline upon students withdisabilities. The chapter begins with a discussion of school per-sonnels' programmatic obligations towardsstudents whose disabilities manifest in chal-lenging behavior. Following that discussion is apresentation of basic constitutional rights inschool discipline. Included in the chapter afterthe overview of constitutional rights are a coupleof case histories detailing how defense counselsuccessfully used the school discipline hearingprocess to delay and then derail delinquencyprosecutions. Next, the chapter considers IDEAprovisions regarding discipline, as well as §504and ADA protections against discrimination indisciplinary procedures and disciplinary sanc-tions. Finally, the chapter examines the specialissues that arise when school personnel initiatedelinquency proceedings for in-school conduct.3

In considering discipline and disability, counselshould recognize, remember, and realize the fol-lowing key principle: no child who is protectedby the IDEA should ever be without an appro-priate educational placement to attend. Whilethis principle had been a matter of dispute priorto the 1997 amendments to the IDEA, as dis-cussed below, the law now expressly states thatall children with disabilities are entitled to a freeappropriate public education, "including thosewho have been suspended or expelled." 20U.S.C. § l4l2(a)(1).

I. School personnels' programmatic

2As of this writing, in April 1998, anamendment to the IDEA that would significantlyundermine these protections was pending beforeCongress. Readers should check for subsequentdevelopments.

3A consideration of state and localprovisions from around the country is beyond thescope and scale of this manual. Nevertheless, counseland advocates for children must find and fathom allrelevant state and local provisions.


obligations towards students with behavioralissues

Securing appropriate education and services forchildren whose disabilities entail behavioralmanifestations was a key impetus behindenactment of the IDEA -- known when it waspassed in 1975 as the Education for AllHandicapped Children Act. Prior to that time,educators and administrators routinely labeledchildren with disabilities as behavioralproblems, and thus excluded them from publiceducation, or relegated them to segregatedprograms with inadequate services.4 Statisticsbefore Congress indicated that eighty-twopercent of children classified as emotionallydisturbed were completely excluded fromschool.5

Embedded in the history of the IDEA is theunderstanding that an apparent right of access toschool is meaningless for children withbehavioral manifestations if that access is notaccompanied by a right to programming thattakes into account behavioral needs. Nonethe-less, officials, administrators, and teachers inmany school districts still refuse to addressappropriately the behavioral consequences ofdisability. Some school functionaries ignore thisduty altogether. Others, while purporting toprovide behavioral programming, in realityfocus their efforts exclusively on controlling thechildren in school. Rather than addressingbehavior and its root caus es as part and parcelof the children's educational and developmentalneeds, those who make and implement schoolpolicy often tend to view behavior narrowly assomething to be "managed" or "controlled':.Commonly, the focus and virtually the exclusivegoal is to minimize the disruption of classroomactivities. The behavioral needs of children thusbecome addenda to education -- often in the

form of "behavior management plans" -- ratherthan as subjects for education, and specialeducation services, in their own right.6 Similarly,school personnel often consider behavioralmanifest-ations as relevant only to discipline perse, and they mistakenly conceive of behavioralmanifest-ations solely as impediments toacademic pro-gress or as impediments to astudent's deriving sufficient "benefit" from theeducation provided. Such school personnel thusfail to recognize that special education, relatedservices, and transition services are vehicles forcomprehending oneself and others, and for trans-forming thereby one's interactions with otherpeople.

Narrow approaches and restrictive responses tobehavioral manifestations violate the duty toprovide a free appropriate public education("FAPE"). Courts have recognized routinely thatthe meaning of education under the IDEA isbroad and encompasses, inter alia, a child'sunique social and emotional needs as well as hisor her academic ones.7 For children whose dis-

4See, e.g., Mills v. District of Columbia Bd.of Ed., 348 F. Supp. 866 (D.D.C. 1972).

5Honigv. Doe, 484 U.S. 305, 309 (1988)(citing legislative history).

6Columnist Coleman McCarthy, a notedpeace activist and scholar, speaks to audiences about-- among a myriad of topics -- educators' neglect ofconflict resolution. With rhetorical aplomb,McCarthy asks how many people studied algebra insecondary school. All hands go up. He then asks howmany people had a course in conflict resolution. Fewhands appear, if any. McCarthy secures his point byasking people whether they are more likely, on anygiven day, to use algebra or to attempt to resolveinterpersonal conflicts.

7Seattle School District No. 1 v. B.S., 82F.3d 1493,1500 (9th Cir. 1996) ("[e]veryone agreesthat A.S. is exceptionally bright and thus able to testappropriately on standardized tests. This is not thesine qua non of ‘educational benefit,’ however. Theterm 'unique educational needs' [shall] be broadlyconstrued to include. . . academic, social, health,emotional, communicative, physical and vocationalneeds"); see also, e.g., Babb v. Knox County SchoolSystem, 965 F.2d 104,109 (6th Cir. 1992), cert.denied, 113 S.Ct. 380 (education under IDEAencompasses "both academic instruction and a broadrange of associated services traditionally grouped


abilities entail challenging behaviors, FAPE thusrequires"special education," or "specially de-signed instruction," aimed at behavioral issues,as well as any necessary behaviorally-related"related services."

The duty to address behavior as a part of FAPEextends well beyond simply managing or controlling behavior in the classroom. Thus, ChrisD.and Cory M. v. Montgomery County Bd. ofEd.8 rejected as insufficient and as a denial ofFAPE a school's substitution of disciplinary ex-clusion and attempts at behavior managementfor meaningful behavioral programming andsup-ports. The court found "[t]he system ofbehavior-al control...Cory's teachers have

implemented [to be] woefully inadequate," andan impermissible substitute for "attempting toteach him to control his own behavior."9 Thecourt faulted the school system for the fact that"[t]he few behavioral' goals' contained in Cory'smost recent IEP actually describe only generalclassroom rules and the punishments and re-wards for breaking or following these rules,rather than any individualized strategies forchanging Cory's behavior."10 The court observedthat to the extent that Cory at times behavedappropriately in class, it was "only because ateacher or other adult is literally standing overhim."11 The school personnel's efforts and theirlegal position were unacceptable because"[c]learly such a depen-dency-building approachdoes nothing and in fact may make it moredifficult to enable Cory to behave in a regularclassroom or in the real world."12 The schoolpersonnel's approach thus violated Cory's rightto receive education in the least restrictiveenvironment as well as his right to FAPE; theschool's approach offered "no realistic prospectof returning to the 'regular' class setting, which,of course, would be the least restrictiveenvironment for any student."13 Amendmentsmade to the IDEA in 1997 under-score the dutyof school personnel to address problem behavioras an educational matter, as both an aspect ofFAPE and a strategy for preventing disciplinaryexclusion. The statute now explicitly states that,if a child's behavior impedes the child's learningor that of others, the IEP must include"strategies, including positive behavioralinterventions, strategies, and supports to addressthat behavior." 20 U.S.C. § 1414 (d) (3)(B). Inaddition, any time a child is suspended fromschool or otherwise removed for disciplin-ary

under the general rubric of ‘treatment’”). Forexamples of other cases stressing the broad meaningof education under the IDEA, see Timothy W v.Rochester School District, 875 F.2d 954,962 (1st Cir.1989), cert. denied, 493 U.S. 983 ("the Act's conceptof special education is broad, encompassing not onlytraditional cognitive skills, but basic functional skillsas well"); Kruelle v. New Castle County SchoolDistrict, 642 F.2d 687, 693-94 (3rd Cir. 1981) ("theconcept of education is necessarily broad. . . [w herebasic self-help. . . skills. . . are lacking, formaleducation begins at that point"); Battle v.Commonwealth of Pennsylvania, 629 F.2d 269, 275(3rd Cir. 1980), cert. denied, 452 U.S. 968 (1981)(same). Cf., Stacey G. v. Pasadena IndependentSchool District, 547 F. Supp. 61,77 (S.D. Tex. 1982)(". . . an essential element of an appropriate educationfor a child as handicapped as Stacey is an opportunityto develop skills that would allow Stacey to be asself-sufficient as possible and to function outside ofan institution").

8753 F. Supp. 922 (M.D. Ala. 1990).

9Id.

10Id.

11Id. at 933.

12Id.

13Id. at 934.

!!!Narrow approaches and restrictive

responses to behavioral manifestationsviolate the duty to provide a free

appropriate public education("FAPE").

!!!


reasons from the usual educational place-ment,school personnel must conduct a func-tional behavioral assessment, and develop a behavioralintervention plan. 20 U.S.C. § 1415 (k) (1)(B). Ifsuch an assessment already has been done and aplan developed, the IEP team must review theplan and modify it as necessary to address thebehavior that prompted the removal. Id.14

Finally, as discussed in detail below, undercertain circumstances, school personnel mayremove a child to an “interim alternative educ-ational setting”as a response to certain types ofalleged behavior. Those placements, under thelaw, must provide services to address the allegedbehavior.20 U.S.C. § 1415(k)(3).

Similar obligations to address behavior withappropriate educational interventions flow theregulations implementing §504 and the ADA.Thus, for students with disabilities whom thenevertheless must provide special or regulareducation and related services in the leastrestrictive environment consistent with theirneeds, including the aids, services and accom-modations necessary to ensure that they receivean education that is as effective as that providedother students. 34 C.F.R. §§ 104.4(b)(1)-(3),104.33(b)(1), 104.34 (§504); 28 C.F.R. §§35.130(b)(1)-(3), (7), (8), 35.130(d) (ADA).

II. Basic student rights in school discipline15

Like all students, students with disabilities enjoycertain basic constitutional rights in schooldiscipline and investigations, includingprocedural due process and protections againstunreason-able searches and seizures. Section504 and the ADA, which prohibit disabilitydiscrim-ination in all aspects of publiceducation, afford additional protections ininvestigations and dis-ciplinary hearings.

A. Procedural due process

A student suspended for any amount of time isentitled to procedural due process, meaning, at aminimum, some form of notice of the chargesand an opportunity to be heard. Goss v. Lopez,419 U.S. 565 (1975). School officials may ex-clude a student before a hearing only in genuineemergencies. Id. at 582-83.16 A student whoadmits to the misconduct should nonetheless beafforded a hearing on the issue of penalty. See,e.g., Strickland v. Inlow, 519 F.2d, 744, 746 (8th

14While the statute clearly provides thatthese rights apply in suspensions of any length, theU.S. Department of Education, without legalanalysis, has taken the position that schools need notconduct func-tional behavior assessments or developor review be-havioral intervention plans unless thechild will be ex-cluded from his or her currentplacement for a total of eleven days or more during agiven school year. See Judith E. Heumann, AssistantSecretary Office of Special Education andRehabilitation Services and Thomas Hehir, DirectorOffice of Special Education Programs, Memorandumto Chief State School Officers Re: Initial DisciplinaryGuidance Related to Removal of Children withDisabilities from their Cur-rent EducationalPlacement for Ten School Days or Less, (OSEPMemo 97-7, September 12, 1997) (hereinafter"OSEP Memo 97-7"), reprinted at 26 IDELR 981;Notice of Proposed Rulemaking (hereinafter"NPRM"), 62 Federal Register 55025, 55102(October 22,1997) (proposed 34 C.F.R. § 300.520(b), ©)).

15For a more complete presentation ofschool discipline issues, see Soler, et al., REPRE-SENTING THE CHILD CLIENT, ¶ 6.04[1 ]-[6], pp.6- 32 through 6-87 (1996).

16Even then, a hearing must be held as soonas possible after the student is removed from school.Lopez v. Williams, 372 F. Supp. 1279 (S.D. Ohio1972), aff'd sub nom. Goss v. Lopez, 419 U.S. 565(1975).

!!!Like all students, students withdisabilities enjoy certain basicconstitutional rights in schooldiscipline and investigations,

including procedural due process andprotections against unreasonable

searches and seizures.!!!


Cir. 1975). While courts tend to afford schoolofficials substantial latitude in disciplinarydecisions, a sanction that might ordinarily bepermissible for a particular infraction maynonetheless be disproportionate or fromotherwise inappropriate in light of an individualstudent's circumstances. See, e.g., Matter of P.J.,575 N.E.2d 22 (Ind. Ct. App. 1991) (semester-IDEA does not cover, school system personnellong expulsion for consumption of alcohol onschool property enjoined where student had usedalcohol as her way of disclosing recent sexualabuse); Washington v. Smith, 618 N .E.2d 561(Ill. App. 1st Dist. 1993) (student who broughtice pick to school to return to a friend but whodid not exhibit or brandish it, nor threatenanyone with it, had not engaged in misconductsufficient to support one-semester expulsion).

The type of notice and kind of hearing required -- including how formal the hearing must be, andstudent rights at the hearing -- depend upon theseriousness of the charges and the severity of thepossible penalty. Goss,419 U.S. at 578-80, 584;Matthews v. Eldridge, 424 , U.S. 319,333,334-35 (1976) (specific dictates of due processrequire consideration of the private interest atstake, the risk of erroneous deprivation of thatinterest through procedures used, the probablevalue of additional procedural safe-guards, andthe government's interest, including additionalfiscal and administrative burdens).Uniformlyrecognized, however, is the right to an impartialdecision-maker. See, e,g., Gorman v. Universityof Rhode Island, 837 F.2d 7, 15 (1st Cir. 1988).

Goss held that in "usual" cases of suspensionsfor ten days or less, required procedures includeat a minimum oral or written notice of thecharges, an explanation of the evidencesupporting them, and an opportunity for thestudent to tell his or her side of the story. Goss,419 U.S. at 581-82. This "notice" and "hearing"may occur simultaneously. Id.17 Long-term

suspensions and expulsions require more formalprocedures. Goss, 419 U.S. at 584; Jackson v.Franklin County School Board, 806 F.2d623,631 (5th Cir.1986). A substantial body ofcase law has developed in which courts haveconsidered whether a particular element of dueprocess was, in fact, due under the circum-stances.18 Such cases contemplate, for example,the right to detailed prior notice of the school'sevidence; the right to confront and cross-examine witnesses; the application of variouspresumptions and burdens of proof in schooldisciplinary matters; the right to be representedby counsel; and the privilege against self-incrimination. Courts generally have not been asrigorous in applying due process and otherconstitutional protections as students and theiradvocates would hope, and decisions varywidely. Counsel should investigate case law inthe relevant jurisdiction, as well as any availablestate-law claims and protections.

17More rigorous procedures may be requiredfor short suspensions in "unusual" situations. Goss,419 U.S. at 484. For instance, more serious charges

that will appear in the student's education record mayrepresent a greater infringement of liberty interests,even if the suspension itself is short-term (e.g., a two-day suspension for smoking versus a two-day sus-pension for stealing or assault), and so require greaterprotections under the Matthews test. Or a short-termsuspension might bring with it other consequences,such as academic penalties for each day of absence,or the students' missing an exam. Other constitutionalrights, such as free expression, might also be at stake.Counsel should check for relevant decisional law intheir jurisdiction.

18For a detailed summary of the extent towhich procedural protections apply in schooldiscipline matters, see REPRESENTING THECHILD CLIENT, supra n.15, at ¶ 6.04[5], pp. 6-49through 6-67.

!!!Counsel should investigate case lawin the relevant jurisdiction, as wellas any available state-law claims

and protections.!!!


B. Searches and investigations

School searches fall within the protections of theFourth Amendment's right against unreasonablesearches and seizures, yet the U.S. SupremeCourt has fashioned a relaxed or compromisedstandard for measuring the legality of suchgovernmental intrusions upon students. Seegenerally, New Jersey v. T.L.O., 469 U.S. 325(1985). School searches do not require awarrant, id. at 340, and the government cansearch based upon reasonable grounds ratherthan the ordinary constitutional minimumstandard of probable cause. Id. at 340-41. Schoolpersonnel can justify reasonable searches basedupon alleged violations either of law or ofschool rules. Id. at 342.

Counsel challenging a school-based seizure orsearch should examine and, if appropriate,challenge the reasonableness of both theinception and the scope of the intrusion. See, id.at 341- 42. The T.L.O. sliding standard of"reasonableness under all of the circumstances"is unquestionably a departure from the clearersteps of probable cause and reasonablearticulable suspicion that form the core of theCourt's Fourth Amendment decisions;19

nevertheless, in challenging the reasonablenessof intrusions in school, one must still examineand apply search and seizure case precedentsfrom settings other than schools. Conceptually,the reasoning of Fourth Amendment cases as tothe significance of governmental behavior andthe meaning of suspects’ behaviors is entirelyapplicable.20

In Vernonia Sch. Dist. 47J v. Acton, 515 U.S.646 (1995), the Supreme Court expanded thelegitimacy of suspicion less searches (from caseslike Skinner v. Railway Labor Executives Assn.,489 U.S. 602 (1989)) to include random drugtesting of student athletes in the public schoolsetting. Notwithstanding that ruling, theoverriding principle that governmentalintrusions require reasonable suspicionsparticularlized to an individual person arguablycontrols all other instances of governmentalintrusions upon students' privacy within thepublic schools. Thus, counsel should alwayschallenge a search of a group of students or anentire class when the ostensible justification forthe search is the particular sanctionable activityof one (identified or unidentified) student.

Fundamentally, counsel is like1y to encounterschool administrators and officials who seemeither arrogant regarding their power overstudents or ignorant of the applicable legalconstraints. These attitudes may flow fromassumptions debunked and arguments dismissedby the T.L.O. court that, for example, teachersand principals act in loco parentis and thatchildren in school maintain no right to privacy.Counsel also should be alert to the possibilitythat a particular school rule that provides theostensible justification for the intrusion upon astudent's privacy is itself an inane, indefensible,and, therefore, illegal basis for sanctioning achild.21

19One may still assert that the ordinarystandards of probable cause and reasonablearticulable suspicion apply in school searches andseizures in which the police take the lead and thenature of the governmental action is primarily lawenforcement rather than educational. See,REPRESENTING THE CHILD CLIENT, supra n.15, ¶ 6.05[2][b][v], pp. 6-99 through 6-101.

20See, e.g., In re William G., 709 P.2d 1287(Cal. 1985) and other cases cited in REPRESENT-ING THE CHILD CLIENT, supra n. 15 at ¶ 6.05[2],

pp. 6-92 through 6-107.21 One would have to dem-onstrate, presumably, that the rule advanced no rea-sonable governmental interest or that the specific rulewas inconsistent with other control-ling portions ofthe school system’s disciplinary rules. But compare,T.L.O., 369 U.S. at 382 (Stevens, J. dissent-ing)(infractions of minor school rules should notjustify Fourth Amendment intrusions) with id. at342-43 n.9, 344 n.11 (majority opinion)(explicitlyapplying ruling to instances of alleged infractions ofschool rules)(cited in REPRESENTING THECHILD CLIENT, ¶ 6.05[2][b][viii], p. 6-106.

21


The Supreme Court upheld the search in T.L.O.and thus did not reach the question of the ap-plicability of the exclusionary rule to schoolsearches. See, T.L.O., 469 U.S. at 332-33. Lowercourts, however, have uniformly applied the ex-clusionary rule when prosecutors have sought tointroduce in a delinquency or criminal matterevidence illegally seized from an accused in theschool setting.22 On the applicability of the ex-clusionary rule to admission of illegally-obtained evidence in school disciplinaryhearings, courts have ruled both ways.23

C. Disability discrimination in investigations

Although there is a dearth of case law on thesubject, counsel should be aware that the mannerin which school disciplinarians conduct investi-gations of alleged misconduct, and the mannerin which decisionmakers interpret and use thatinformation, may constitute impermissible dis-ability discrimination. For example, a child witha cognitive impairment may become confusedduring repeated questioning and, therefore, maygive unclear or inconsistent answers. If thoseanswers are then interpreted as evidence ofdishonesty and used as a basis for finding thestudent guilty and imposing a disciplinarysanction, the student has been subjected todiscrimination on the basis of disability. A deafstudent who has been denied an interpreter, andwho is thus unable to fully comprehend oreffectively communicate responses, also hassuffered discrimination. The anti-discriminationprinciples of §504 and the ADA, and theirimplementing regulations, require schooldisciplinarians and decision-makers to take into

account and accommodate the disabilities ofaccused students. See 29 U.S.C. §794; 42 U.S.C.§12132; 34 C.F.R. §104.4(b)(1)(iv), (4); 28C.F.R. §35.130 (b) (3)(I), (7).

D. Case histories1. The case of Leonard F.

Leonard, at the age of twelve, was arrested inschool for allegedly possessing a handgun. Afterseizing Leonard in the school library andconfiscating a gun, the police officers -- on therecommendation of the vice-principal --presented Leonard to a group of his peers (twoclassrooms combined) and told them thatLeonard was "a criminal" who would be incar-cerated for his law violation. School officialssubsequently expelled Leonard for two se-mesters.

University of the District of Columbia School ofLaw (UDCSL) clinicians were appointed to de-fend Leonard in the ensuing delinquency matter.The investigation led to evidence of modestcredibility that Leonard had found the gun onhis way to school and that he was planning togive it to an adult when he encountered onewhom he felt he could trust. At the same time asthey developed their delinquency defense,UDCSL clinicians worked with Leonard and hismother to challenge the two-semester expulsionlevied by the school. The school board's generaldis-ciplinary regulations prohibited this lengthof removal for a twelve-year-old child. Inaddition, by initiating the special educationevaluation process, Leonard's mother -- throughcounsel-- was able to challenge the expulsion asa violation of the special education "stay-put"provision.24 At the disciplinary hearing in whichUDCSL clinicians challenged the two-semesterexpul-sion, the school officials agreed that theexpul-sion was invalid and agreed, further, toforego any suspension based upon an agreementthat Leonard would transfer to a different

22See REPRESENTING THE CHILDCLIENT, supra n.15, ¶ 6.05[2][b][ix][A], pp.6-l07through 6-108.

23ld. at ¶ 6.05[2][b][ix][B], pp.6-l08 through6-109; see also, In the Matter of Juan C. v. Cortines,647 N.Y.S.2d 491 (Sup. Ct. 1996), (applying exclu-sionary rule to school disciplinary hearing), reversedon other grounds, 679 N .E.2d 1061 (N.Y. Ct. App.1997).

24See. Honig v. Doe, 484 U.S. 305 (1988),and Hacienda v. Honig, 976 F.2d 487 (9th Cir.1992).


school.

In the delinquency case, UDCSL clinicianseffectively challenged the behavior of the schoolofficials and the police in arresting Leonard andpublicly "convicting" and chastising him. Themotion contained citations to police arrest regu-lations regarding the proper handling of juven-iles, as well as an application of the law re-quiring confidentiality of juvenile matters to thefacts of the police officers' displaying Leonardto his school- mates. In addition, the UDCSLadvocates referred in the motion to doublejeopardy law and to a local court rule that re-quires "fundamental fairness" in dealing withchildren; the advocates based the request fordismissal on the power of the court to dismissfor social reasons. Contending with a compli-cated motion raising issues that, at least inappearance, seemed to be "of first impression",and comforted to an extent perhaps by the settle-ment (through transfer) of the schooldisciplinary matter, the prosecutor did not mountan entirely aggressive defense to the motion todismiss. The complicated nature of the motion,combined with unopposed continuances to dealwith the school disciplinary issues, resulted in asignif-icant delay prior to the date of thedelinquency trial. During that time, Leonardavoided any additional delinquency courtinvolvements. Ultimately, the delinquency court,finding implicitly that Leonard had already been"punished" (and that punishment -- at leastpunish-ment involving public humiliation -- wasimper-missible), dismissed Leonard's case basedpri-marily on the violations of arrest proceduresand confidentiality committed by the police andschool officials.

2. The case of Talia P.

University of the District of Columbia School ofLaw's Juvenile Law Clinic advocatesrepresented Talia on a charge that she, alongwith four other female teenagers, hit and kickeda girl at school. The formal charge was "assaultwith a dangerous weapon", a shoe. Talia had noprior contacts with the delinquency system, andshe did not appear to have significant

educational problems. Juvenile Law Clinicadvocates, in conformance with school systemdisciplinary regulations, requested a disciplinaryhearing to challenge Talia's suspension. Duringthe investigation, UDCSL advocates learned thatthis event was one of a series of confrontationsbetween dis- tinct groups of girls at the school.In negotiations with the principal immediatelypreceding the dis-ciplinary hearing and basedupon information from other witnesses, UDCSLadvocates also learned that one of the assailants,however, reportedly passed the mace to someonein the crowd, and school officials did notrecover it. Further, the principal was“protecting” various students who had beenwitnesses to the alleged assault; the principalapparently was concerned that divulging theidentity of witnesses and allowing the childrento testify (in the disciplin-ary hearing or adelinquency trial) would increase the likelihoodof retaliation and continued violence betweenthe groups of girls.

University of the District of Columbia School ofLaw advocates successfully argued for a post-ponement of the disciplinary hearing citing thegovernment’s procedural violations in refusingto provide exculpatory information and refusingto produce other arguably “discoverable”material. In addition, UDCSL advocates haddiscussed with the principal the potential ad-vantages of mediating the dispute. In preparingfor the delinquency matter, subsequently,UDCSL advocates developed discovery requestsand challenges that, if needed, would potentiallyfrustrate the prosecution. (In other words,UDCSL advocates anticipated that the principalwould not provide to the prosecutor informationabout the mace and the names of other students,not actually charged, who may have beenresponsible for the assault.)

University of the District of Columbia School ofLaw advocates convinced the juvenile court pro-secutor and all other participants to refer the de-linquency case to mediation. Following a suc-cessful mediation between the girls involved in


the fight,25 the prosecutor moved to dismiss thepending delinquency charge against all fivegirls.

In juvenile incarceration facilities, the childrentypically are between two and six or seven yearsbelow grade level in academic performance.Only a small percentage of incarcerated childrenhave been evaluated for special education needs. Those who have been identified as special ed-ucation eligible typically have no current IEPand are not receiving appropriate educationalservices while detained pre-trial and pre-disposi-tion or while incarcerated post-disposition.

University of the District of Columbia School ofLaw clinicians represent children who are pre-ventively detained or incarcerated post-disposi-tion at the juvenile prison and advocate for theirspecial education rights based upon a belief that,with proper services, those children could be re-leased. For the relatively small percentage of in-carcerated children who have been seriously vio-lent, the right to special education services is noless viable. If officials at the incarcerationfacility do not offer appropriate services, a spec-

ial education advocate for the child and theparent can force the system either to serve thechild or place the child in a more appropriatesetting.

3. The case of Daniel T.

Daniel pled guilty to attempted UnauthorizedUse of a Motor Vehicle (UUV). A judge placedDaniel on probation for one year. While onprobation, Daniel was arrested an additionalthree times, leading to a court order followingthe third arrest for placement in a pre-trial half-way house. Daniel ran away from the halfwayhouse and was arrested yet again; the judgerevoked his probation and put him in a mediumsecurity juvenile facility. At that point, Danielcame to the attention of UDCSL. One of thelawyers trained by UDCSL brought Daniel'scase to the Clinic.

Daniel had been previously identified as eligiblefor special education services as a learningdisabled (LD) student, but he had not receivedappropriate services. In addition, Daniel isdiabetic and takes insulin twice a day.University of the District of Columbia School ofLaw advocates and the private practitionerresolved to get Daniel re-evaluated and to obtainan appro-priate educational program for himwith all necessary services. The goal was to getan appropriate school placement for Daniel fromthe public school system before the disposition(that is, sentencing) in his new delinquency case.

The University of the District of ColumbiaSchool of Law advocates obtained a ruling froma hearing officer ordering the school system tocomplete an IEP and propose an interim place-ment for Daniel pending completion of a neuro-psychological evaluation. In conjunction withDaniel’s delinquency attorney, the UDCSLadvocates submitted a memo to the judge in thedelinquency case outlining Daniel’s educationalneeds. The delinquency attorney then requestedthat the judge again place Daniel on probationand rely on the special education placement toprovide the services Daniel requires. The pros-ecutor, in contrast, asked the judge to keep

25Co-mediators conducted the mediationunder the auspices of a local court-annexed disputeresolution center. One of the mediators was an adult;the other was a high school student, trained as amediator through a school-based, conflict-resolutionprogram.

!!!Only a small percentage of

incarcerated children have beenevaluated for special education needs.

Those who have been identified asspecial education eligible typically

have no current IEP and are notreceiving appropriate educationalservices while detained pre-trial

and pre-disposition or whileincarcerated post-disposition.

!!!


Daniel incarcerated. Basing her decision onUDCSL 's educational advocacy and UDCSL'sability to deliver an appropriate placement fromthe public school system, the judge orderedplacement at a group home (post-dispositionhalfway house). For some time, the admin-istrators of Daniel's special education programbecome an asset to the school. The otherstudents reportedly considered him to be aleader.

Some months later, Daniel stopped going to thespecial education placement. Daniel's motherreported to University of the District ofColumbia School of Law that she had visitedDaniel's school and that school officials werenot controlling the children. She further statedthat Daniel was not happy with the lack ofdecorum. UDCSL advocates attempted withoutmuch success to help Daniel find a placementthat he found suitable. Nevertheless, Daniel hadno re-arrests prior to his eighteenth birthday.

Adults tend to perceive children in thedelinquency system as bad actors rather than ascastle builders, symphony writers, or futureleaders. Special education advocacy Shifts thefocus to the child's right to educational oppor-tunities, offering the defense attorney arhetorical and legal handle to defeat preventivedetention and post-disposition incarceration.

III. Disciplinary exclusion under the IDEA asamended

A. Legal background

Disciplinary exclusion of children withdisabilities has long been a legally complex andcontentious reported that he was adjusting welland had issue under the IDEA. The IDEAAmendments of 1997 have complicated furtherthis already complex body of law. To workeffectively for delinquency clients who presentoverlapping school discipline and disabilityissues, advocates should examine not only thecurrent law of disciplinary exclusion, but alsothe history behind the current law.

Prior to the 1997 amendments, the IDEA wassilent as to discipline and disciplinary exclusion.Administrative and judicial interpretations of theIDEA's broad rights to FAPE and to proceduralprotections defined, in the context of school dis-cipline, the rights of students and the limits onschool authority. In this manner, the courtsaddressed three major issues: (1) proceduralrights in the face of disciplinary exclusion, (2)the continued availability of educational servicesafter "expulsion,"and (3) the rights of studentsnot identified as having a disability prior to adisciplinary incident and attempted exclusion.

Procedural rights in disciplinary exclusion: In1988, the U.S. Supreme Court held that ex-clusion of a special education student fromschool for more than ten days constitutes achange in placement, triggering all the rights andprocedures ordinarily attendant to placementchanges under the IDEA. Honig v. Doe, 484

!!!Special education advocacy shifts

the focus to the child’s right toeducational opportunities, offering

the defense attorney a rhetoricaland legal handle to defeat preventive

detention and post-dispositionincarceration.

!!!

!!!To work effectively for

delinquency clients who presentoverlapping school discipline anddisability issues, advocates shouldexamine not only the current lawof disciplinary exclusion, but alsothe history behind the current law.

!!!


U.S. 305 (1988).26 These rights include the rightto file a complaint, the right to have a due pro-cess hearing, and the right to remain in thecurrent, in-school educational placementpending completion of administrative andjudicial pro-ceedings. Id.27 The ruling in Honigthus pro-hibited school personnel fromunilaterally ex-cluding special educationstudents; once the parent triggered stay-put,school personnel could remove the child fromthe current educational placement over parentalobjection only by ob-taining an order from acourt of competent jurisdiction. ld. at 328. Toobtain such an order, the school system had todemonstrate that main-taining the child in thecurrent placement was substantially likely toresult in injury to the child or others, and thatreasonable efforts to minimize the risk of harmthrough the use of supple-mentary aids andservices had not succeeded. ld.,. Light v.Parkway C-2 School District, 41 F.3d 1223 (8thCir. 1994). Honig held that there were noexceptions to these rules, even as to studentsdeemed "dangerous" or "disruptive" by schoolpersonnel. Honig, 484 U.S. at 323. Educationafter expulsion: In its administrativeinterpretations, the U.S. Department ofEducation long maintained that (1) no child witha disability could be "expelled" for conductrelated to a disability, (2) a child could be"expelled" for "unrelated" conduct, and (3) achild "expelled" for unrelated conduct remainedentitled to a free appropriate public education.Courts split on the issue of education afterexpulsion. All agreed that school officials couldnot exclude a student from school for more thanten days and could not deny education for

conduct related to a disability. Several courtsheld that school officials could sanction astudent for unrelated conduct by excluding thestudent for more than ten days as long as schoolper-sonnel provided the student with appropriateeducational services. Shortly before the 1997Amendments, two Courts held that studentsexpelled for unrelated conduct may be denied alleducation.28

Students not previously identified as having adisability: Prior to the 1997 legislation, Courtsreached inconsistent conclusions when facedwith the question of whether students not pre-viously identified as having a disability underthe IDEA may invoke IDEA protections toforestall disciplinary sanctions. These casesmost commonly presented the followingscenario: a suspended or expelled studentrequested an eval-uation to deter- mineeligibility for IDEA ser-vices; the student filed acomplaint challenging school personnels' pastfailures to identify and evaluate the student andto provide the student with special education andrelated services; and the student invoked stay-put rights in an attempt to return to (or remainin) school notwith-standing the disciplinaryexclusion. Courts dif-fered as to whether thesestudents could invoke stay-put and, if so, whatconstituted the student's "current educationplacement" for purposes of the provision.

The IDEA Amendments of 1997 explicitlyaddress disciplinary exclusion. While retainingthe basic premises of Honig, the amended statuteclarifies and changes prior law in several criticalways. As discussed below, key changes includethe treatment of students alleged to have beenin-volved in certain kinds of incidents involvingweapons or drugs; the rights of students not pre-viously found eligible for services under the

26As noted above, the 1997 IDEAAmendments definitively answered this question: allstudents with disabilities are entitled to FAPE, evenduring periods of suspension or expulsion, and evenif the behavior that led to the exclusion has beendeemed unrelated to the disability.

27Special education practitioners refer to theprovision establishing the right to remain in thecurrent placement pending resolution of the disputeas the "stay-put" provision.

28As noted above, the 1997 IDEAAmendments definitively answered this question: allstudents with disabilities are entitled to FAPE, evenduring periods of suspension or expulsion, and evenif the behavior that led to the exclusion has beendeemed unrelated to the disability.


IDEA; suspensions of ten days or less; and, forthe first time in the statute, distinctions in rightsand treatment for students whose behavior has orhas not been deemed by school officials to be amanifestation of disability.

B. Disciplinary exclusion as a change in placement

The 1997 Amendments to the IDEA did notdisturb Honig's core holding that suspension formore than ten days or expulsion trigger all of thechange-in-placement procedures mandated bythe statute and by the implementingregulations.29 The amendments did, however,expand the range of disciplinary actions thatconstitute changes in placement, characterizingas a "change in placement" placement in aninterim alternative educational setting, inanother setting, or on suspension for not morethan ten school days. See 20 U .S.C.§1415(k)(1)(A)(I).

In responding to attempts at disciplinaryexclusion, counsel thus must be aware of boththe general change-in-placement rights andprocedures, and the specific, supplementary onesthat attach in the discipline context under the

1997 Amendments. The following discussionaddresses changes in placement for more thanten days. Changes for ten days or less arediscussed separately below.30

Mandated procedures for all placement changesfor more than ten days include:• convening of an IEP team meeting, with fullconsideration of the child's needs, evaluationdata, current program and placement, andplacement options, consistent with 34 C.F.R. §§300.343, 300.344 and 300.533 (1997);• meaningful opportunity for, and. efforts byschool officials to ensure, parental participationin the meeting, as per 34 C.F.R. §§ 300.344-.345(1997); and• prior written notice of the school system'sproposal to change the student's placement,including an explanation of why the schoolsystem intends to take the proposed action, adescription of the alternatives it consideredalong with an explanation of why thosealternatives were rejected, a description of eachevaluation procedure, test, record or report theschool system used as a basis for its proposal,and an explanation of all the proceduralsafeguards available to parents under the IDEA.20 U.S.C. §§ 1414(d), (f), 1415((b),(c),(d).31

29See also, Board of Educ. of HendrickHudson Cent. Sch. Dist. "Rowley, 458 U.S. 176,206-07 (1982) (right to FAPE includes right to have alleducational decisions, including placement decisions,made in accordance with IDEA procedures).

30See "Exclusions of Ten Days or LessUnder IDEA."

31As discussed in Chapter 11, the latterinclude, among other things, notice and consentrights, access to records, the right to an independenteducational evaluation, the right to file a complaint,mediation rights, due process hearing and appealrights, the right to bring a civil action in court, theright to an attorney's fee award, and the right to havethe child remain in school in the current placement ifa complaint is filed. See 20 U.S.C. § 1415.

!!!In responding to attempts at

disciplinary exclusion, counsel thusmust be aware of both the generalchange-in-placement rights and

procedure, and the specific,supplementary ones that attach inthe discipline context under the

1997 amendments.!!!

!!!Under the 1997 Amendments to theIDEA, school personnel seeking to

exclude a child for discipline reasonsmust take additional steps.

!!!


In addition, a team of qualified persons, withparents participating, must make placementdecisions. The team members must be know-ledgeable about the student's needs, the eval-uation data (regarding the student), the student'scurrent placement and program, and placementoptions. 20 U.S.C. § 1414(f); 34 C.F.R.§§300.344-.345, 300.533 (1997). Finally, asdiscussed above, a parent who disagrees with aproposed change in placement has the right tofile a complaint, to have a due process hearing,to bring a civil action if aggrieved by the hearingoutcome, and to have the child remain in thecurrent educational placement pending com-pletion of administrative and judicial pro-ceedings. 20 U.S.C. § l4l5(b)(5),(f) (j).

C. Supplementary rights and procedures in disciplinary exclusion: Manifestation reviews

Under the 1997 Amendments to the IDEA,school personnel seeking to exclude a child fordiscipline reasons must take additional steps.The school personnel must first determinewhether the behavior in question was a mani-festation of the child's disability. 20 U.S.C. §l415 (k)(4),(5).32

If the behavior was a manifestation, schoolofficials cannot suspend the child for more thanten days33 or expel the child. School personnel,however, may propose changes in the child's IEPor in the placement, consistent with the rightsand procedures outlined above. See 20 U.S.C. §1415(k)(5)(A). lithe behavior was not a mani-festation, school officials can suspend or expel

the child for the same amount of time a non-disabled child would be disciplined. Id. How-ever, a child with a disability must be provided afree appropriate public education34 during thesuspension or expulsion period, and that educa-tion (FAPE) must be designed and developedconsistent with the rights and procedures out-lined above. ld.; 20 U.S.C. § 1412(a)(1).35

The IEP team, which includes parents and other"qualified personnel", makes the manifestationdetermination. 20 U.S.C. § 1415(k)(4)(B).36 This

32As discussed above, school personnel alsomust conduct a functional behavioral assessment (ifthey have not already done so) and develop or refinean existing) behavioral intervention plan before ornot later than ten days after suspending a student. 20U.S.C. § l4l5(k)(1 )(B).

33Suspensions often days or less arediscussed below.

34Given the IDEA definition of a "freeappropriate public education," discussed in Chapter6, home tutoring will rarely, if ever, fulfill the duty toprovide FAPE to excluded students. In addition, theU.S. Department of Education's proposed regulationsimplementing the 1997 IDEA Amendments wouldrequire placements for suspended and expelledstudents to meet the criteria for "interim alternativeeducational settings," discussed below. See 62 Fed.Reg. at 55074 (October 22, 1 997)(proposed 34C.F.R. § 300.12l(c)(3), incorporating by referenceproposed 34 C.F.R. § 300.522).

35The statute at 20 U.S.C. § l4l2(a)(1)explicitly states that all children with disabilities, in-cluding those who have been “suspended” or “expell-ed” from school, are entitled to a free appropriatepublic education. The statute makes no distinctionbetween short-term (ten days or less) and long-term(more than ten days) suspensions. Nonetheless, theU.S. Department of Education has taken the positionthat the right to FAPE is triggered only when astudent has been suspended for more than ten days ina school year. See OSEP Memo 97-7, supra; NPRM,supra, 62 Federal Register at 55074 (proposed 34C.F.R. § 300. 12 1 ©)(2)).

36The statute does not define the term"qualified personnel." As a matter of common sense,"qualified personnel" are those with the professionalexpertise and understanding required to address thequestions that comprise the manifestation review,discussed below. Required "qualified personnel"likely will vary depending upon the student'sdisability and the overall circumstances. Therequirement that the IEP team be supplemented by"qualified personnel" is an important recognition thatIEP teams, by definition, do not include all of the


team must consider all relevant information, in-cluding evaluation and diagnostic results, in-formation supplied by the student's parents,observation of the child, and the child's IEP andplacement. 20 U.S.C. §1415(k)(4)(C)(I). Theteam must find that the behavior was a mani-festation of disability if:• in relation to the behavior the child's IEP orplacement was inappropriate. OR• in relation to the behavior, special educationservices, supplementary aids and services, andbehavior intervention strategies were not imple-mented in a manner consistent with the child'sIEP and placement; OR• the child's disability impaired the ability tounderstand the impact and consequences of thebehavior; OR• the child's disability impaired the ability tocontrol the behavior.

20 U.S.C. § 1415(k)(4)(C).An important potential inconsistency existsbetween the manifestation review scheme andthe constitutional right to procedural due processin student discipline. One of the purposes of themanifestation review is to determine whether thestudent may be subjected to the school'sordinary discipline procedures, includingsuspension or expulsion, for the behavior inquestion. The manifestation review assumes byits very terms that the student has, in fact,engaged in the alleged misconduct -- one of thevery “facts” the school must prove at anysuspension or expulsion hearing. If themanifestation review is held before thesuspension or expulsion hearing, then studentsand their parents must either concede “guilt” --which school officials other-wise would berequired to prove at a constitu-tionally-adequatehearing -- so that they may meaningfullyparticipate in the manifestation review, orsurrender their right to participate in, andadvocate during, the manifestation deter-

mination.37

A possible solution to this dilemma would be tohold a constitutionally-adequate hearing prior tothe manifestation review on the sole issue ofwhether the alleged misconduct transpired. If thestudent is found to have committed the act thenthe matter would be referred for a manifestationdetermination. If the team found that the conductwas a manifestation of disability, any disciplinerecord resulting from the hearing would be ex-punged, and the matter would proceed in amanner consistent with the IDEA. If the teamfound that the behavior was not a manifestationof disability, a second hearing would be held onthe question of sanction (subject, of course, toIDEA rights concerning appeals and stay-put).38

D. Disciplinary exclusion of students accused of conduct involving drugs weapons or dangerous

behavior

If the IEP team finds that a child's behavior was

expertise required to determine manifestation. For adiscussion of the legal requirements regarding IEPteam membership, see Chapter 9.

37The procedural inconsistency presentedparallels, in a sense, the provisions in some states thatallow for the transfer of a child to the jurisdiction ofthe adult criminal court based in part upon theunproven, present allegations against the child.Counsel might review, therefore, case precedent inwhich courts interpret such transfer provisions.

38The pendency of a delinquency matterflowing from the same facts that led to the disciplineaction, obviously, further complicates how one mighthandle the discipline hearing and manifestationdetermination review. A number of legal andpractical concerns arise. For example, counsel shouldremember that the Fifth Amendment privilege againstself-incrimination protects the child againstcompelled testimony in proceedings other thandelinquency and criminal matters. One mustdetermine whether manifestation evidence oropinions presented by the child or by the parentwould be available at a subsequent delinquencyhearing. This determination alone implicateseducational privacy rights and whether the statewould or could use the parent as a witness against thechild.


not a manifestation of disability, the child maybe subjected to the same disciplinary sanctionsapplied to non-disabled students -- includinglong-term suspension or expulsion. In such acircumstance, however, school personnel must

continue to provide FAPE. In contrast, if thechild's behavior was a manifestation of dis-ability, school officials may not impose punitivediscipline, including suspension or expulsion,but may propose to change the child's IEP and/orplacement, if appropriate. Regarding behaviorthat was a manifestation of disability, the 1997Amendments carve out a separate approach forstudents who have allegedly engaged in certainconduct involving weapons or drugs or whohave engaged in "dangerous" behavior in school.This separate approach provides students fewerrights and gives school personnel greaterflexibility than in discipline matters relating toother categories of alleged misconduct.

1. Weapons and drugs

Under the 1997 Amendments, school personnelmay unilaterally place a child in an "appropriateinterim alternative educational setting" for thesame amount of time a non-disabled child wouldbe subject to discipline, but for not more thanforty-five days, if the child:• "carries" certain dangerous weapons to schoolor a school function, or• knowingly possesses or uses illegal drugs atschool or a school function, or• sells or attempts to sell a controlled substanceat school or a school function.

20 U.S.C. § 1415(k)(1)(A)(ii).39

A child may not be removed, however, to aninterim alternative educational setting unless: • keeping the child in the current placement issubstantially likely to result in injury to the childor others. AND• reasonable efforts to minimize the risk ofharm in the current placement, including the useof supplementary aids and services, will not beeffective; AND• the interim alternative educational settingmeets statutory requirements (see below).

See 20 U.S.C. § 1415(k)(6)(A)(ii), incorporatingby reference the standards set out in 20 U.S.C. §1415(k)(2). Prior to removing a child to aninterim alternative educational setting, schoolpersonnel must also consider the appropriatenessof the child's current placement. Id.

In addition, either before or no later than tendays after placing a child in an interim altern-ative educational setting, school personnel mustconduct a functional behavioral assessment (ifthey have not already done so) and develop (orrefine an existing) behavioral intervention plan.20 U.S.C. § 1415(k)(1)(B).

2. Dangerous behavior

If school personnel propose to change a child'splacement because of dangerous in-school be-havior (other than the weapon and drug casesdescribed above) that is a manifestation of dis-ability and the child's parents dispute theschool's decision, the school may seek

39"Weapon" means "a weapon, device,instrument, material, or substance, animate or in-animate, that is used for, or is readily capable of,causing death or serious bodily injury, except thatsuch term does not include a pocket knife with ablade of less that 2 fi inches in length." See 20 U.S.C.§ l4l5(k)(10)(D), incorporating by reference thedefini-tion of "dangerous weapon" found at 18U.S.C. § 930 (g)(2). For definitions of "illegal drugs"and "control-led substance," see 20 U.S.C. §l4l5(k)(10)(A).

!!!Regarding behavior that was a

manifestation of disability, the 1997Amendments carve out a separateapproach for students who have

allegedly engaged in certain conductinvolving weapons or drugs or who

have engaged in “dangerous”behavior in school.

!!!


permission from an IDEA due process hearingofficer to place the child in an interim alternativeeducational setting for up to forty-five days.Such an interim place-ment order may be properif the hearing officer

• determines that the school system has demon-strated by more than a preponderance of the evi-dence that keeping the child in the current place-ment is substantially likely to result in injury tothe child or others; AND• considers whether the school system hasmade reasonable efforts to minimize the risk ofharm m the child's current placement, includingthe use of supplementary aids and services;AND• considers the appropriateness of the child'scurrent placement; AND• determines that the interim alternativeeducational setting meets the statutoryrequirements (described below).

20 U.S.C. § 1415(k)(2).

3. Interim alternative educational settings

An "interim alternative educational setting"mustmeet strict statutory criteria. It must provideFAPE, in the full legal sense of the term. It mustenable the child to continue to participate in thegeneral curriculum, and to continue to receivethe services, including those set out in the child'scurrent IEP, that will enable him or her to meetthe IEP goals. 20 U.S.C. §§1412(a)(I), 1415 (k)(3)(B)(I). Furthermore, the interim alternativeeducational setting must include services andmodifications designed to address the behaviorthat triggered the child's interim placement sothat the behavior does not recur. 20 U.S.C.§1415(k) (3)(B)(ii). Because of these require-ments, home tutoring will virtually never be alegally permissible interim alternative educa-tional setting.

In a weapon or drug case, the interim alternativeeducational setting is determined by the IEPteam, which by definition includes parents. 20U.S.C. §§ 1415(k)(3)(A), 1414(d)(I)(B)(I). In

cases of "dangerous" behavior brought to ahearing officer, the hearing officer makes thedetermination. 20 U.S.C.§ 1415(k)(2). One mayexpect, however, that school personnel will seekto propose a specific interim alternative educa-tional setting to the hearing officer. Schoolpersonnel, however, must permit parents toparticipate in developing any such proposal. See20 U.S.C. §1414(f)(local and state educationalagencies “shall ensure that parents of each childwith a disability are members of any groups thatmakes decisions on the educational placement oftheir child"); see also 20 U.S.C. § 1414(d) (1)(B)(I) (parents as IEP team members).

E. Notice, hearing and "Stay-put" rights under the IDEA as amended

School personnel must notify parents the sameday of any decision (1) to place a child into aninterim alternative educational setting for analleged weapon or drug incident, (2) to seek per-mission from a hearing officer to remove a childto an interim alternative educational setting, or(3) to change a child's placement (i.e., suspen-sion or expulsion) for more than ten days forother alleged violations of the school disciplinecode. 20 U.S.C. § 1415(k)(4)(A). This notifica-tion must include notice of all of the proceduralsafeguards available under the IDEA. Id. Thisimmediate notice is in addition to the statutorynotice requirements that ordinarily apply when-ever a school proposes to make changes in achild's education.40

Parents have a right to file a complaint and havean expedited impartial due process hearing ifthey disagree with a determination that a child'sbehavior was not a manifestation of disability,or, indeed, if they disagree with any decisionregarding placement made in the discipline

40For a discussion of IDEA noticerequirements, see Chapter II.


context.41 As was true prior to the 1997 Amend-ments, there is no exception to "stay-put" rightssimply because school officials deem a studentto be a discipline problem, or dangerous, or dis-ruptive. Honig, supra.; 20 U.S.C. § 14150).Thus, as discussed above, ordinarily if a parentchallenges any aspect of a disciplinary exclusionand requests a due process hearing, the child hasthe right to remain in school, in the same place-ment as before the suspension or expulsion, untilthe hearing and any judicial proceedings con-clude.

The 1997 Amendments to the IDEA, however,modified "stay-put" rules for students accused ofthe behavior described above involvingweapons, drugs, or dangerous conduct in school.The new statutory provision, found at 20 U.S.C.§ 1415(k)(7)(A), contains confusing wordingand is ambiguous in some respects. Thus, § 1415(k)(7)(A) is a likely source of future litigation.

Section 1415(k)(7)(A) does address clearly the"stay-put" placement of a child placed by schoolpersonnel in an interim alternative educationalsetting for a weapon or drug incident. If theparent appeals, the child remains in the interimalternative placement chosen by the school untileither the hearing officer issues a decision or theforty-five-day time limit ends, whichever occurs

sooner, unless the parent and the State or localeducational agency agree otherwise. 20 U.S.C. §1415(k)(7)(A).

Under the terms of section 1415(k)(7)(A), thechild in a weapon or drug case shall remain inthe interim alternative educational setting if aparent requests a hearing to contest a deter-mination by the IEP team that the weapon ordrug incident was not a manifestation of thechild's disability. As discussed above, however,once it makes a finding of “no manifestation,”the school need not place or maintain the childin an interim alternative educationa1 setting(with its forty-five-day time limit)but, rather,may suspend or expel the student, whilecontinuing to provide FAPE elsewhere. Thus, incircumstances in which a parent is appealing amanifestation determination, there will notnecessarily be an interim alternative educationalsetting, as defined by the statute, to maintain asthe child's stay-put placement. The best readingof the statute is that, under such circumstances,the school must provide an interim alternativeeducational setting as soon as the parent appeals.This interim alter-native educational setting thenbecomes the stay-put placement under §1415(k)(7)(A), subject to the time limits andother conditions described in that section.

Finally, § 1415(k)(7)(A) speaks to the stay-putplacement of a child whom a due process hear-ing office has placed in an interim alternativeeducational setting, pursuant to20 U.S.C. § 1415(k)(2), at the request of the school system. Re-conciling this aspect of § 1415(k)(7)(A) with therest of the statute is difficult.

Section 1415(k)(7)(A) states in pertinent partthat "[w]hen a parent requests a hearing re-garding a disciplinary action described in . . .paragraph (2) to challenge the interim alternativeeducational setting or the manifestationdetermination, the child shall remain in theinterim alternative educationa1 setting pendingthe decision of the hearing officer. . . ." How-ever, the "disciplinary action described in. . .paragraph (2)" is placement in an interimalternative educational setting by a hearing

41Under the U.S. Department of Education’sproposed regulations, expedited hearings must resultin a decision within ten business days of the hearingrequest, unless the parents and school officials agreeotherwise. See NPRM, supra, 62 Fed. Reg. at 55104(proposed regulation 34 C.F.R. § 300.528(a)(I)).

!!!As was true prior to the 1997

Amendments, there is no exception to“stay-put” rights simply because

school officials deem a student to be adiscipline problem, or dangerous, or

disruptive.!!!


officer, see 20 U.S.C. § 1415(k)(2), meaningthat there already will have been a hearing onthe interim alternative educational setting andany manifestation issues. Nothing in the statuteexplicitly grants parents the right to a secondhearing. Further, the IDEA elsewhere providesthat due process hearing decisions -- includingthose made under § l4l5(k) -- are final andbinding reference the standard set out in § l4l5(k)(2). unless appealed to a higher state admin-istrative authority in a state that provides forstate-level review of special education dueprocess hearing results,42 or to a court. See 20U.S.C. §14l5(i)(1)(A), (i)(2)(A).

Under all circumstances, once an interimalternative educational placement expires -- nomore than forty-five days after the child hasbeen placed there -- the student is entitled toreturn to the placement that preceded the interimalterna-tive placement. If school personnel wishto change this prior placement and the parentobjects, the prior placement -- not the interimalternative educational setting -- becomes thestay-put placement. 20 U.S.C. § 1415(k)(7)(B).If school personnel wish to assert that thestudent if returned to the preceding placement,would pose a danger, they may request anexpedited hearing and seek permission from anIDEA due process hearing officer to change thechild's placement despite the stay-put right. 20 U.S.C.§ 1415(k) (7)(C). As is the case wheneverremoval to an interim alternative educationalsetting is sought, the hearing officer can rule infavor of the school system only if the hearingofficer• determines that the school system hasdemonstrated by more than a preponderance ofthe evidence that keeping the child in the currentplacement is substantially likely to result ininjury to the child or others; AND• considers whether the school system hasmade reasonable efforts to minimize the risk ofharm in the child's current placement including

the use of supplementary aids and services;AND• considers the appropriateness of the child’scurrent placement; AND• determines that the interim alternative educa-tional setting meets the statutory requirements.

20 U.S.C. § l4l5(k)(7)(C), incorporating by ref-erence the standard set out in § 1415(k)(2).

F. IDEA rights of students not previously determined eligible for special education and related services

A student who is the subject of a disciplinaryaction who has not previously been identified aseligible for services under the IDEA nonethelessmay assert IDEA rights and procedural protec-tions if the school system "had knowledge,"before the behavior in question occurred that thechild was a child with a disability. ' 20 U.S.C. §l415(k)(8)(A). The school system will be deem-ed to have had such knowledge if • the parent expressed concern in writing thatthe child needs special education and relatedservices; OR• the child's behavior or performancedemonstrated the need for such services; OR• the parent had requested an evaluation; OR• the child's teacher or other school systempersonnel had expressed concern about thechild's behavior or performance to other schoolsystem staff.

20 U.S.C. § 14l5(k)(8)(B).43

If school system personnel did not "have know-ledge," they can subject the child to the samedisciplinary measures to which non-disabledchildren are subjected for comparable behavior.20 U.S.C. § l415(k)(8)(C)(I). If, in these

42For a discussion of one-tiered versus two-tiered administrative hearing systems, see Chapter12.

43A parent need not have expressed concernabout special education needs in writing if “theparent is illiterate or has a disability that preventscompliance with [these] requirements.” 20 U.S.C. §1415(k)(8)(B)(I).


circumstances, the parent requests a specialeducation evaluation, school system personnelmust expedite the evaluation; if the expeditedevaluation demonstrates that the child isdisabled and eligible for special education,school system personnel must provide a freeappropriate public education on an expeditedbasis. 20 U.S.C. § 14l5(k) (8)(C)(ii). Pending theresults of the evaluation, the child remains in the“educational placement” determined by schoolauthorities. ld. The statute's use of the phrase“educational placement” indicates thateducational services must be provided duringthis period, even if the child has been suspendedor expelled from school.

G. Exclusions often days or less under the IDEA

The IDEA Amendments of 1997 authorizeschool personnel, acting unilaterally, to place achild in an appropriate interim alternativeeducational setting, in another setting, or onsuspension for up to ten school days to the sameextent that such alternatives would be applied tochildren without disabilities. 20 U.S.C. §1415(k)(1)(A)(I).

The statute characterizes each of these actions asa change in placement. See id. This character-ization is significant in light of the proceduralrequirements that ordinarily attach to attemptedchanges in placement (as discussed above and inother chapters of this manual). However, 20U.S.C. § 1415(k) modifies these proceduralrequirements in two significant ways. First, itpermits "school personnel" to make these short-term disciplinary changes in placement. 20U.S.C. §1415(k)(1)(A)(I). This permissionsupplants the usual requirement that the IEPteam, with parental participation, make place-ment changes. Second, 20 U.S.C. § 1415(k)(4)(A)(I) modifies the usual rule regarding notice,providing that parents must be notified on thedate that the decision to make the change ismade. Under ordinary circumstances, priornotice is required when a school proposes toinitiate a change in placement. 20 U.S.C.§1415(b)(3).

The statute is somewhat unclear as to whether amanifestation review must precede disciplinarychanges in placement lasting ten days or less.See 20 U.S.C. § 1415(k)(4)(A)(ii). The U.S.Department of Education has taken the positionthat a manifestation review must be done whenthe total number of days of suspension in aschool year reach eleven.44 Counsel should beaware, however, that as a §504 matter (asdiscussed below), suspension for even one dayfor conduct related to a disability should bedeemed illegal discrimination. As noted above, the plain language of the IDEArequires F APE during suspensions of ten daysor less, 20 U.S.C. § 1412(a)(1), and a functionalbehavior assessment and behavioral interventionplan after placement in an interim alternativeeducational setting, in another setting, or onsuspension for even one day. 20 U.S.C. §1415(k) (1)(B). For the reasons previouslydiscussed, the U.S. Department of Education'spositions to the contrary are erroneous.

IV. Disciplinary exclusion under §504 and the ADA

Section 504 and the ADA are independentsources of protections in disciplinary exclusion.In certain respects, these protections are weakerthan those afforded by the IDEA. Most signif-icantly, section 504 and the ADA do not providestay-put protection or a continuing right to edu-cation after suspension or expulsion for behaviordetermined to be unrelated to disability.

Section 504 and the ADA are, nevertheless,critical for those students with disabilities whoare not covered by the IDEA. Students may beoutside IDEA coverage because they do nothave one of the specific disabilities listed in theIDEA, or because they do not require “specialeduca-tion,” or because, though perhaps IDEA-eligible, they had not been deemed so prior to

44See OSEP Memo 97-7, supra; NPRM,supra, 62 Fed. Reg. at 55103 (proposed 34 C.F.R. §300.523(b).


the rele-vant disciplinary incident, and theschool district did not “have knowledge,” asdiscussed above, of the child's disability.

Section 504 and the ADA protect studentsagainst unfair discipline in two ways. First,under both statutes and their implementingregulations, imposition of any punitivediscipline for conduct that is a manifestation ofdisability should be deemed to constitute illegaldiscrimination. 29 U.S.C. § 794; 34 C.F.R. §§104.3(j), 104.4 (b),104.33, 104.35; 42 U.S.C. §12132; 28 C.F.R. §38.130 (a),(b) (implementingthe ADA).45 This includes suspensions oftendays or less, absent a genuine safety emergency.

Second, much like the IDEA, the § 504 regula-tions require that certain procedures be followedbefore a child's placement may be changed.Required procedures include a comprehensiveevaluation by appropriate, qualified personnelprior to any “significant change in placement;”notice to parents of school district actions re-garding identification, evaluation or placement;an opportunity for parents to examine relevantrecords; and an opportunity for an impartialhearing and for a review process. 34 C.F.R. §§104.35, 104.36. All placement decisions must bemade by a group of persons knowledgeableabout the child, the evaluation data and theplacement options. 34 C.F.R. § 104.35(C).

A suspension exceeding ten days constitutes a“significant change of placement” under theregulations, triggering all of the aforementioned

procedural requirements and rights.46 The schoolsystem, therefore, must conduct acomprehensive evaluation meeting all of therequirements of 34 C.F.R. § 104.35(b) beforeattempting to exclude a student for more thanten days.47 The evalua-tion must also include adetermination of whether there is a connectionbetween the be-havior for which discipline is tobe imposed and the student's disability.48 Aseries of short-term suspensions that cumulate tomore than ten days may also constitute a change

45See also the following U.S. Department ofEducation/Office of Civil Rights complaintdecisions: School Administrative Unit #38 (NH), 19IDELR 186; Ohio County (KY) School District, 17EHLR 528; Compliance Review of Riverview (WA)School District, EHLR 311:103; and Nash County(NC) School District, EHLR 352:37. See alsoThomas v. Davidson Academy, 846 F. Supp. 611(M.D. Tenn. 1994) (§504 and the ADA requiremodifications to school discipline policies to avoiddiscrimination).

46See, e.g., Memorandum of Oct. 28, 1988to OCR Senior Staff from L.S. Daniels, reprinted atEHLR 307 :05 (hereinafter “OCR Memo”).

47Note that IDEA does not necessarilyrequire a reevaluation prior to a disciplinary changein placement. As virtually all children covered byIDEA are also protected by § 504, this § 504 right isan im-portant supplement to IDEA rights. Counselshould not hesitate to invoke it.

48OCR Memo, supra. Disability andconduct may be related in a variety of ways. See, e.g.,S-1 v. Turlington, 635 F.2d 342, 346-47 (5th Cir.1981), (“a determination that a handicapped studentknew the difference between right and wrong is nottantamount to a determination that his misconductwas or was not a manifestation of his handicap”: forexample, “a child with low intellectual functioningwho might respond to stress or respond to a threat inthe only way that they feel adequate, which may beverbal aggressive behavior,” or an orthopedicallydisabled child might behave aggressively towardsother children, provoking fights, as a way of dealingwith stress and feelings of physical vulnerability);School Board of Prince William County v. Malone,762 F.2d 1210, 1216 (4th Cir. 1985) (student withspecific 1eaming disabilities acted as a go-between indrug deals for fellow students; district court hadproperly reasoned that “‘ [a] direct result of Jerry'slearning disability is a loss of self image, anawareness of lack of peer approval occasioned byridicule or teasing from his chronological age group.. . These emotional disturb-ances make himparticularly susceptible to peer pres-sure. Under thesecircumstances he leaps at a chance for peerapproval’”). See also Memorandum of Nov. 13, 1989to OCR Senior Staff from William Smith, 16 EHLR491,493.


of placement for § 504 purposes, triggering theabove-described protections.49

If the behavior is found not to be a manifestationof disability, the student may be subjected to thesame disciplinary measures as are non-disabledstudents, including suspension or expulsionwithout education. However, according tojudicial decisions in, at least, the Fifth, Sixth andEleventh Circuits,50 educational services shouldcontinue.

The parent has a right to an impartial dueprocess hearing to challenge the evaluationresults, the manifestation determination, anyresulting place-ment decision, or any otheractions regarding the identification, evaluationor educational place-ment of the student. 34C.F.R. § 104.36.51 The § 504 regulations haveno stay-put provision. However, it should bepossible to obtain a temporary restraining orderand/or preliminary injunction requiring a child'sreinstatement in school by meeting the usualcriteria for prelim-inary relief.

Section 504, in contrast with the IDEA, extendsfull protection against suspension and expulsion

(as described above) to any student who is ormay be an "individual with a disability", withoutregard to whether the school district has yetidentified the student as disabled. In numerouscomplaint decisions, the U.S. Department ofEducation/Office for Civil Rights (“OCR”),which en-forces §504, has so ruled. See, e.g.,Templeton (CA) Unified School District, 17EHLR 859 (OCR 3/19/91); Prince George’sCounty (MD) Public Schools, 17 EHLR 875(OCR 3/22/91); Lumberton (MS) Public SchoolDistrict, 18 IDELR 33 (OCR 6/24/91).

V. School-filed crime reports and delinquencypetitions

Faced with the above-discussed limits onexcluding students directly, school systemadministrators may turn to the juvenile courts orto the police, filing delinquency petitions orcrime reports based upon students’ in-schoolbehavior. By resorting to the juvenile justicesystem, school administrators often are mis-takenly attempting to avoid basic obligations toeducate students with disabilities. Ironically,students’ aberrant behavior frequently is areflec-tion of the school system’s past failures topro-vide appropriate educational and relatedservices.

Two recent legal developments are particularlyrelevant to this issue: a favorable federal districtcourt opinion in Morgan v. Chris L., affirmed inan unpublished decision by the Sixth CircuitCourt of Appeals in 1997,52 and a subsequentprovision added to the IDEA in the 1997amendments addressing school reporting of“crimes” committed by students with

49OCR Memo, supra.

50S-1 v. Turlington, 635 F.2d 342 (5th Cir.),cert. denied, 454 U.S. 1030 (1981); Kaelin v.Grubbs, 682 F.2d 595 (6th Cir. 1982). See also OCRMemo, supra.

51Some students may lose some of theseprotections if they are currently using illegal drugs oralcohol. School officials may discipline a studentwith a disability for “the use or possession of illegaldrugs or alcohol” to the same extent that a non-disabled student would be disciplined if the disabledstudent “currently is engaging in the illegal use ofdrugs or in the use of alcohol.” 29 U.S.C.§706(8)(C)(iv). Al-though such students ordinarilyhave a right to a hear-ing under other laws, they donot have a right to a hearing under the §504regulations. Id. Provided that they are also "childrenwith disabilities" within the meaning of IDEA,however, they retain all of the IDEA rights describedabove.

52Morgan v. Chris L., 927 F. Supp: 267(E.D. Tenn. 1994), aff'd 106 F.3d 401 (6th Cir.), cert.denied, 117 S.Ct. 2448 (1997). (The reader mightwish to find the Sixth Circuit opinion in the Individ-uals With Disabilities Education Law Reporter:Morgan v. Chris L., 25 IDELR 227 (6th Cir. 1997).)


disabilities.53

A. Morgan v. Chris L.

Morgan v. Chris L. dealt with a school-fileddelinquency petition against a student withAttention Deficit Hyperactivity Disorder(ADHD) accused of kicking and damaging alavatory water pipe. Chris L. had a long historyof academic and behavioral difficulties. Evenafter school staff recommended private counsel-ing and private assessment for possible ADHD,school personnel continued to treat Chris’difficulties as a discipline problem, rather thanproviding appropriate special education andrelated services. A special education evaluation,requested by the parent, was pending at the timeof the alleged incident.

Following an IDEA administrative due processhearing, an administrative law judge ruled thatthe school system personnel had violated theIDEA by failing to evaluate Chris in a timelymanner and by attempting to use the juvenilecourt process to change his educational place-ment without following the IDEA's proceduralsafeguards. The ALJ ordered the school systemto seek dismissal of its juvenile petition. Theschool system appealed into federal district

court, which affirmed the ALJ’s decision andorder. See Morgan v. Chris L., 927 F. Supp. 267(E.D. Tenn. 1994).

On appeal, the Sixth Circuit, in an unpublishedopinion, upheld the ALJ and district court de-cisions. The Sixth Circuit found that the schoolsystem had breached its duty under the IDEA toidentify, evaluate and provide Chris with a freeappropriate public education; had unlawfullyattempted to secure a program for the studentfrom the juvenile court, instead of providingservices itself; and had, by filing the petition,improperly sought to change Chris' educationalplacement without following the IDEA's change-in-placement procedures. The court, like thelower court and the ALJ, expressly held that thefiling of the delinquency petition constituted achange in educational placement, entitling Christo IDEA procedural protections, including theconvening of an IDEA (multi-disciplinary) teammeeting prior to such a proposed placementchange.54

53One might also anticipate a ground swellof cases, under § 504 and the ADA, challenging thedisproportionate and thus discriminatory courtreferral of school discipline matters involvingchildren with .disabilities. One such case, filed bylawyers from the Juvenile Advocacy Project of theLegal Aid Society of Palm Beach County, iscurrently pending in the United States District Courtfor the Southern District of Florida.

54Of significance to the holding in Chris L.is the fact that the school authorities directly filed thedelinquency petition. Cf., State v. Trent N., 569N.W.2d 719, 724 (Wis. App. 97) (possibility of “endrun” around IDEA by school officials negated by roleof intake workers and prosecutors who exercisediscretion in whether to proceed with delinquencypetition and prosecution). While, under Wisconsinlaw, the IDEA does not block juvenile courtjurisdiction regarding a child with a disability whoallegedly breaks the law in school (id.), the juvenilecourt can dismiss a petition in the child's best interestand refer the matter back to the intake worker fordisposition. ld. at 725 n.10.

!!!By resorting to the juvenile justicesystem, school administrators oftenare mistakenly attempting to avoid

basic obligations to educate studentswith disabilities.

!!!


B. IDEA amendments of 1997

1. Reporting crimesThe IDEA Amendments of 1997 added to thestatute language addressing the reporting of “crimes” committed by students withdisabilities. This provision, entitled “Referral toand Action By Law Enforcement and JudicialAuthorities,” states that “[n]othing in this partshall be con-strued to prohibit an agency fromreporting a crime committed by a child with adisability to appropriate authorities. . . .” 20U.S.C. § 1415(k) (9)(A)(emphasis added). Thelegislative history explains that schools may notreport crimes to even “appropriate” authoritieswhere doing so would circumvent the school'sobligations to the child under the IDEA.55

The terms “reporting” and “appropriateauthorities” are not defined in the statute and,therefore, must be given their ordinary meaning.Thus, properly interpreted, the new languagelimits schools to notifying law enforcementagencies (e.g., police) of crimes, and does notauthorize notifying the judicial branch (e.g.,through the filing of delinquency petitions). Inregard to the judiciary, the new law simplyprovides that nothing in the IDEA “shall beconstrued. . . to prevent. . . judicial authorities

from exercising their responsibilities with regardto the application of Federal and State law tocrimes committed by a child with a disability.”20 U.S.C. § 1415(k)(9) (A).56

2. Transmitting records

Section 1415(k)(9) further provides that when aschool reports a crime alleged to have beencommitted by a child with a disability, it mustsend copies of the child's special education anddisciplinary records to the "appropriateauthorities" to whom it reports the alleged crime.20 U.S.C. § 1415(k)(9)(B). Other provisions ofthe IDEA57 require states and local school sys-tems to comply with the Family EducationalRights and Privacy Act (FERPA),58 which, witha few narrow exceptions, prohibits disclosure ofeducation records without prior written parentalconsent (or the consent of a student aged 18 orolder). Section 1415(k)(9)(B) must be construed

55See statement of Sen. Harkin, one of thelegislation's co-sponsors, at Congo Rec. May 14,1997 at S4403 (“The bill also authorizes. . . properreferrals to police and appropriate authorities whendisabled children commit crimes, so long as thereferrals, do not circumvent the school'sresponsibilities under IDEA”).

56Because juvenile courts are not “appro-priate” authorities to whom crimes may be reported,§ 1415(k)(9) has no bearing on the holdings inMorgan v. Chris L. This would be the case even if“appro-priate authorities” could be construed toencompass juvenile courts. Section 1415(k)(9)(A)states simply that "[n]othing in this part shall beconstrued to prohibit an agency from...” It saysnothing about whether IDEA may be construed torequire schools to take certain steps, or abide bycertain procedures, be-fore doing so. Morgan V.Chris L. does not prohibit schools from ever filingpetitions; it merely requires that change in placementprocedures be followed first. In addition, as notedabove, the legislative history of § 1415(k)(9)(A)clarifies that re-porting “crimes” is impermissiblewhere doing so would circumvent the school'sobligation to the student under IDEA. This isconsistent with Morgan’s further holding that the de-linquency petition before it was improper in light ofthe school system's violations of the student's sub-stantive rights under IDEA to be evaluated andreceive appropriate educational services.

57Specifically, 20 U.S.C. §§1412(a)(8) and1417(c).

5820 U.S.C. § 1232g.

!!!Ironically, students’ aberrant behaviorfrequently is a reflection of the school

system’s past failures to provideappropriate educational and related

services.!!!


in light of, and consistent with, the IDEAprovisions referencing FERPA.59 Therefore,school personnel may not send records to theauthorities to whom it has reported a crime un-less the disclosure falls within one of FERPA'svery narrow exceptions.60

59See, e.g., Weinberger v. Hynson, Wescottand Dunning, Inc., 412 U.S. 609,631-32,93 S.Ct.2469,2484 (1973) (“task in interpreting separate pro-visions of a single Act is to give the Act the mosthar-monious, comprehensive meaning possible. . ..”).

60For FERPA exceptions, see 20 U.S.C. §1232g(b); 34 C.F.R. §§ 99.31, 99.38 (1997). There isno blanket exception for crime reports. In addition,construing § 1415(k)(9)(B) to permit disclosuresprohibited by FERPA likely violates the FourteenthAmendment equal protection rights of students withdisabilities: a dual system would result wherebychildren without disabilities accused of crimes, butnot those with disabilities, would be protected againstinvoluntary disclosure to authorities of theirconfidential education records. A proper constructionwould avoid this result. See Debartolo Corp. v.Florida Gulf Coast Building & Construction TradesCouncil, 485 U.S. 568, 575, l08 S.Ct. 1392, 1397(1988) (“where an otherwise acceptable constructionof a statute would raise serious constitutionalproblems, the Court will construe the statute to avoidsuch problems unless such construction is plainlycontrary to the intent of Congress. . . [t]he elementaryrule is that every reasonable construction must beresorted to, in order to save a statute fromunconstitutionality. . . .”).

Chapter

Five

Enforcing Special Education Law on Behalf of Children

Incarcerated in Juvenile or Adult Facilities

The young people

incarcerated in delinquency

placements, as well as

in adult penal institutions,

are not a representative

cross section of those

who are deviant.

Written by

Joseph B. Tulman

& Mary G. Hynes

5-2 Chapter Five: Enforcing Special Education Law on Behalf of Incarcerated Children

Delinquency incarceration facilities areparticularly uncaring places.1 In regard to thisfundamental feature, the juvenile justice systemis a replica of the adult criminal incarcerationsystem. Indeed, commentators correctlycharacterize the juvenile justice system --andjuvenile incarceration facilities, in particular --as primarily a training ground that “graduates”youngsters into the adult criminal system. Therecent trend to put younger people in greaternumbers into adult facilities, viewed against thisback-drop, is not a fundamental change. Rather,the trend represents an innovative, “early-admissions policy” for post-secondaryincarceration.

The young people incarcerated in delinquencyplacements, as well as in adult penal institutions,are not a representative cross section of thosewho are deviant. Much like poor and minoritychildren, children with disabilities appear indisproportionate numbers in the delinquencysystem generally, and in incarceration facilitiesspecifically.2 Large percentages of children in

the delinquency system and adults in thecriminal system are severely undereducated, andliteracy skills in these populations are strikinglylow.3

1Parts of this chapter are adapted from, andcorrespondingly appear in, an upcoming article byJoseph B. Tulman and Mary G. Hynes in the LoyolaUniversity School of Law Children's Legal RightsJournal.

2For a clear and insightful account of thehistory of the Juvenile Court, see William Ayers, AKind and Just Parent: The Children of JuvenileCourt (1997), chapter 2 (“Jane Addams: History andBackground”). Ayers presents through the entirety ofthe book a compassionate, yet hard-hitting critique ofa juvenile incarceration facility. See, Barry C. Fe1d,The Transformation of the Juvenile Court, 75 MINN.L.REY. 715 (1991) (“Since their inception, thereality of custodial institutions has contradicted thejuvenile court’s rhetorical commitment torehabilitation.”) See also, Jerome G. Miller, Last OneOver the Wall: The Massachusetts Experiment inClosing Reform Schools 8 (1991)(The existence ofreform schools “ensured that juvenile offenderswould receive the worst the system could offer--punishment labeled as treatment.”). As a correlate for delinquency and incarceration,

disability status is not as well documented as racestatus and class status. Estimates of the correlationvary widely. See generally, Patricia Puritz & MaryArm Scali, Beyond the Walls: Improving Conditionsof Confinement for Youth in Custody, Office ofJuvenile Justice and Delinquency Prevention Report1998, at 16-17 (studies regarding prevalence ofdisabilities within delinquency incarcerationpopulations report ranges between 42 percent and 60percent); see also, Leone, et al., Understanding theOverrepresentation of Youths with Disabilities inJuvenile Detention, 3 D.C. L. REV. 389 (1995), andEducation as Crime Prevention: ProvidingEducation to Prisoners, Research Brief, The Centeron Crime Communities & Culture (September 1997)at 3, [hereinafter Education as Crime Prevention],citing R.I. Gemignani, Juvenile CorrectionalEducation: A Time for Change (NCJ Publication No.150309, Office of Juvenile Justice and DelinquencyPrevention 1994) at 2.Ironically, while deinstitutionalization of people withdisabilities has become common in mental health andmental retardation systems, in the delinquencysystem, American society continues to incarcerate alarge numbers of children with disabilities.Moreover, those children, generally speaking, havedisabilities that are relatively less incapacitating thanpersons institutionalized traditionally in the othersystems. Similarly, a large percentage of the peoplepopulating penal institutions are emotionallydisturbed, mentally retarded, mentally ill, or learningdisabled. A central premise of this chapter is that anastoundingly large percentage of the young peoplewith disabilities who are incarcerated in juvenile oradult facilities would not be incarcerated on the basisof their alleged or proven offenses absent thepresence of the disability.

3Education as Crime Prevention, supra note2 at 3-5.


Whether rejecting or accepting the premise thateducation is effective in reducing delinquent orcriminal conduct4 and that, conversely, incar-ceration is not effective in reducing delinquentor criminal conduct, one should recognize thatspecial education advocacy can provide effectiveinstrumental strategies for obtaining release ofyoung people from incarceration.

The young client who is incarcerated has severalfundamental and self-evident problems. Theclient is confined; liberty is restrained. Further,the client likely faces intimidating and perhapsbrutal circumstances on a daily basis inside theinstitution.5 In addition, the client most likely isnot receiving an appropriate or even adequateeducation. Regarding these post-dispositiondeprivations, lawyers tend to overlook theirfundamental function as professional problem-solvers who are engaged by clients to addressthose clients’ most-pressing problems.6

As a result of systemic limitations andperceptual mistakes, lawyers fail to address for

their clients these most-pressing problems. First,the right to representation afforded under theSixth Amendment to indigent persons accusedof criminal or delinquent offenses does notextend to post-disposition or post-sentencechallenges to conditions of incarceration.Second, resources for indigent defense arelimited,7 and decision-makers reasonablyapportion those limited resources primarily andalmost exclusively to trial work.8 Third, themodel of criminal defense and “just desserts”from the adult system permeates the juvenilecourt.

Lawyers, probation officers, judges, and othersin the system tend to rationalize that an accusedwho is found guilty and is “sentenced” gets adeserved punishment and that the case is thenover. Under this approach, advocates forchildren do little preparation for dispositionhearings; they tend not to prepare alternativedisposition plans; and they tend not to challengeprosecutorial assertions and judicial declarationsthat children “need” to be put into, and need toremain in, prison-like settings.9

4See, Education as Crime Prevention, supranote 2 at 5-7 (summarizing studies demonstratingthat educational programs are more effective inreducing juvenile and adult recidivism rates thanother responses).

5See, e.g., Miller, Last One Over the Wall,supra note 2 at 55-80. See generally, James Gilligan,Violence (1997) (Chapter 7).

6See generally, Patricia Puritz, Sue Burrell,Robert Schwartz, Mark Soler, & Loren Warboys, ACall for Justice: An Assessment of Access to Counseland Quality of Representation in DelinquencyProceedings, 38-40 and 53-55 (1995).

7See generally, Robert Burke, MaryBroderick, & Julie Walko, Indigent DefenseCaseloads and Common Sense: An Update (NationalLegal Aid & Defender Association 1992) at 3-13.

8Absent a commonsensical but,nevertheless, unlikely extension of the right tocounsel, advocates for children should seek othermeans or methods for supporting continued legalrepresentation and advocacy. Fee shifting is availablefor parties prevailing in cases filed under 18 U.S.C.section 1983. Successful civil contempt challengesalso provide attorneys’ fees.

9Cf generally, Puritz, et al.,A Call forJustice, supra note 6 at 51-53 (summarizing the“shortcomings” of juvenile representation atdispositional hearings).

!!!The young client who is incarcerated

has several fundamental andself-evident problems.

!!!


Acting as a litigator10 representing an incarcer-ated child, an attorney can address, throughthree options,11 the failure of the staff andadministration at a youth incarceration facility topro-vide care and rehabilitation.12 A first option:the attorney can develop and file a law suit,perhaps a class action, challenging conditions ofconfinement.13 A second option: within thedelinquency case itself, after the disposition, theattorney can file a motion for an order to showcause why the government agency (andindividual personnel and officials) responsible

for the child's care and rehabilitation should notbe held in civil contempt for failure to complywith the court's original disposition order thatrequired the government to provide care andrehabilitation. 14 A third option: the attorney canenforce the child's rights under federal, state,and local law to receive appro-priate specialeducation and related services. This third optionis the focus of the legal and problem-solvinganalysis in this chapter.

The third option is particularly attractivebecause a party (parent or majority-age student)prevailing against the school district in a specialedu-cation matter is entitled to attorneys' fees,from the government, at a reasonable or marketrate.15 Thus, special education advocacy canprovide a basis for funding advocates tochallenge any and all of the conditions of

10Attorneys, of course, also advocatethrough means other than litigation. An attorney, forexample, could draft legislation and lobby forlegislative remedies for inhumane conditions at anincarceration facility. Many public defenders areprohibited by statute or by contract from engaging insystemic advocacy of that sort. Most publicdefenders are not in proximity of a state legislatureand, moreover, have large-volume caseloads thatseem to make legislative advocacy anincomprehensible indulgence.

11The three options presented are, of course,not suggested as substitutes or replacements formotions to reconsider disposition order or appeals ofunderlying adjudications. A fourth option is tochallenge treatment of children by governmentalcustodians under child abuse and neglect laws.

12See generally, Patricia Puritz and MaryAnn Scali, Beyond the Walls: Improving Conditionsof Confinement for Youth in Custody, Office ofJuvenile Justice and Delinquency Prevention Report(1998). The authors detail “six. . . methods ofimproving oversight, monitoring, and services fordetained and committed youth. . .”, including (1) TheCivil Rights of Institutionalized Persons Act, (2)Ombudsman programs, (3) Individuals withDisabilities Education Act, (4) Protection andAdvocacy Systems, (5) Administrative ProcedureAct, and (6) Self- Assessment. Id. at xi-xii.

13For a listing of class action suits thatchallenge conditions at juvenile incarcerationfacilities and that include educational claims, seePuritz & Scali, Beyond the Walls, supra note 2 at 18-19.

14Civil contempt orders are of two types:coercive and compensatory. United States v. UnitedMine Workers, 330 V.S. 258, 303-304 (1947). Thepurpose of civil contempt is “[to enforce complianceand] to remedy any harm inflicted on one party bythe other party's failure to comply.” Doe v. GeneralHospital of the District of Columbia, 434 F.2d427,431 (D.C. Cir. 1970). If the government has not implemented thedisposition order to provide services or, moregenerally, to provide care and rehabilitation, anattorney also might ask the court to issue a writ ofmandamus to force the youth services agencypersonnel to provide care and rehabilitation; in thealternative, an attorney might ask the court to re-assert its original disposition authority. See, e.g., Inre A.A.I., 483 A.2d 1205 (D.C. 1984). In manyjurisdictions, the law provides for motions to modifyor terminate the disposition order or motions to voidthe order based upon mistake or newly-discoveredevidence. See, e.g., In re D.W.G., 115 D.W.L.R.2097 (D.C. Super. Ct. 1988). Also, the law mustprovide a basis to challenge the court's jurisdiction.See, e.g., D.C. Code Ann. § 16-2324(a) (1996). On amore mundane note, the law also must provide, insome form, for a motion for release fromincarceration.

15P.L. 105-17 § 615 (i)(3); 34 C.F.R. §300.513.


confinement that relate to the provision orimplementation of special education and relatedservices at juvenile incarceration facilities. Alsocovered are challenges based upon failures ofschool system personnel and juvenileincarceration facility personnel to identifychildren who have educational dis-abilities.

By enforcing federal, state, and local specialeducation rights on behalf of children, advocatescan extricate those children from delinquencyplacements, jails, and penal institutions. Byredefining children as students with potential forbeing productive, rather than as offenders (or aspredators) whom society needs to restrict andrepress, adults responsible for children chargedwith delinquency and criminal offenses cancreate a system genuinely attuned to goals ofcare and rehabilitation.

I. The IDEA and children incarcerated in Juvenile facilities.

The fact of incarceration in a juvenile facilitydoes not vitiate a child's right to specialeducation under the IDEA.16 Courts have longheld that children continue to have rights underthe IDEA regardless of incarceration.17 The

Office of Juvenile Justice and DelinquencyPrevention has recently reported that there are asmany as twenty-five pending class action caseson behalf of children incarcerated in juvenilefacilities which incorporate an educational claimunder the IDEA or the Rehabilitation Act orboth.18

Of particular interest is the court's decision inAlexander S. v. Boyd, describing the state'sobligations to children incarcerated in both pre-trial detention and post-adjudication incar-ceration. With regard to children in pre-trialdetention, the court adopted the conclusion ofthe United States Department of Educationholding:

In the case of short-term, temporary confine-ment, the State may meet its obligation underIDEA and Section 504 . . . by implementing theIEP from the previous school district or place-ment instead of developing a new one. The IEPmust be implemented to the extent possible inthe temporary setting.. To the extent the imple-mentation of the old IEP is impossible, servicesthat approximate, as close as possible, the oldIEP must be provided.19

With respect to children in long term confine-ment, however, the court held that the state isobligated to develop a new IEP as soon as thejuvenile is transferred to one of the long terminstitutions.20

16See, Mary G. Hynes, Children withDisabilities in Detention: Legal Strategies to SecureRelease, 3 D.C. L. Rev. 299 (1995).

17See, e.g., State of Conn. v. State Dept. ofEd., 699 A.2d 1077 (Superior Court 1997); State ofWisconsin v. Trent N., 26 IDELR 434 (Wisc. Ct.App. 1997); Alexander S. v. Boyd, 876 F.Supp. 773

(D.S.C. 1995); Donnell C. v. Illinois, 829 F.Supp.1016 (N.D. Ill. 1993); In re G.C. v. Coler, 673F.Supp. 1093 (S.D. Fla. 1987); Andre H. v. Ambach,104 F.R.D. 606 (S.D.N.Y 1985); Green v. Johnson,513 F.Supp. 965 (D. Mass. 1981J;In re Marc. A., 21IDELR 341 and 21 IDELR 1079 (N.H. 1994) and Inre JohnK., 216 Cal. Ct. App. 1985).

18Puritz & Scali, Beyond the Walls, supranote 2 at 18-19.

19Alexander S., 876 F.Supp. at 153.

20Id.

!!!Be enforcing federal, state and

local special education rights onbehalf of children, advocates can

extricate those children fromdelinquency placements, jails, and

penal institutions.!!!


While the 1997 amendments, discussed below,significantly circumscribe the states’ obligationto provide special education services to childrenincarcerated in adult facilities, the amendmentshave no impact on the rights of juvenilesincarcerated in juvenile facilities. In fact, theproposed regulations specifically add “juvenile”correctional facilities as public agencies subjectto the IDEA.21 The legislative history alsoemphasizes that the rights of children incar-cerated in juvenile facilities are unaffected bythe amendments relating to children in adultfacilities.22

II. The IDEA and children23 incarcerated in adult corrections facilities

The 1997 amendments to the IDEA significantlymodify the states obligation to provide specialeducation and related services to children whoare incarcerated in adult facilities. Some of thesemodifications affect only those who are eighteenthrough twenty-one; others affect all childrenincarcerated in adult facilities, regardless of age.While the amendments do not completelyabrogate the states’ responsibility to childrenwith disabilities incarcerated in adult facilities,they do give states considerably more leeway in

how they elect to provide services to thispopulation, if at all.

A. Children age eighteen through twenty-one

The 1997 amendments authorize states toexclude from eligibility entirely children agedeighteen through twenty-one who, “in theeducational placement prior to theirincarceration in an adult correctional facility: (I)were not actually identified as being a child witha disability. . . or (II) did not have an individ-ualized education program.”24 In other words,states need not identify any new special edu-cation cases among persons who are incarcer-ated. On the other hand, states continue to beobligated to serve those children who havealready been identified as needing specialeducation before their incarceration.

The amendments do not directly speak to thesituation of children who have dropped out of school at the time of incarceration. The HouseReport provides that the law does not excludestudents who “had been identified. . . but whohad left school prior to their incarceration.”25

Comments on the floor of the House tend tosupport a reading which would require states toprovide special education services to studentswho had once been identified as eligible forspecial education but who had dropped out ofschool before being incarcerated.26

21Proposed 34 C.F.R. § 300.2. FederalRegister, October 22,1997, p. 55030.

22“Neither do they [the amendments] affectstudents who are in juvenile facilities.” House ReportNo. 105-95, p. 95. The same result is evident fromthe floor debates: “Ms. Boxer. Does this bill makeany changes to current law with respect to disabledstu-dents incarcerated in juvenile facilities? Mr.Harkin. No.” Congressional Record, May 13, 1997,S4376.

23This section of the chapter containsinformation regarding young people who are undereighteen years of age and incarcerated in adult facil-ities, as well as information regarding young peoplewho are between the ages of eighteen and twenty-one(inclusive). To avoid confusion, the authors consis-tently will use the term “children” rather than “youngpeople” or “young adults”.

24P.L. 105-17, § 612 (a)(l)(B)(ii).

25House Report No. 105-95 at p. 91.

26“Mr. Martinez. . . Members need tounderstand that disabled children do not often gostraight from school to jail. However, the highdropout rate of children with disabilities often lead tothese individuals encountering our justice system. . .Fortunately, the provisions in this bill will ensure thatthose children who drop out and then get intodifficulties with our justice system will continue to beserved in adult correctional facilities.” Congo Recd.May 13, 1997, at H 2536.


However, the House Report also provides thatthe Act “makes clear that services need not beprovided to all children who were at one timedetermined to be eligible.”27 Thus, presumably,the Act does exclude students who may havebeen eligible at one point in their educationalhistory but who were no longer eligible at thetime of incarceration. Conceivably, for example,a student could receive special educationservices in elementary school but not need suchservices in middle, school. If such a child weresub-sequently incarcerated, he or she would notbe eligible to receive special education in anadult prison. Thus, continuing eligibility isprobably limited only to those students whowere eligible or who had an IEP in educationalplacement immediately preceding theirincarceration.

B. All children incarcerated in adult facilities

The remaining amendments to the IDEA relatingto children incarcerated in adult facilities affectall children, regardless of age. They include: (1)a new formula for withholding funding fromstates for failure to comply with the IDEA withregard to children incarcerated in adult facilities;(2) the permissible exclusion of incarceratedstudents from participation in statewideassessments; (3) new limitations on theobligation to provide transition services toincarcerated children and (4) the addition ofpenological considerations in developingindividualized education programs.28

The new withholding formula allows states toentirely discontinue providing special educationservices to children incarcerated in adult prisonswhile incurring only a minimal financialpenalty.29 The IDEA authorizes the Governor to“assign to any public agency in the State the

responsibility of ensuring that the requirementsof this part are met with respect to children withdisabilities who are convicted as adults underState law and incarcerated in adult prisons.”30

Thus, the State Educational Agency no longerneed be the ultimately responsible agency foreducational special education and relatedservices to children incarcerated in adult prisons.Instead, the Governor may designate anotheragency, presumably the Department ofCorrections, to assume this responsibility. If thestate then decides to discontinue providingservices to these children, the Secretary of theU.S. Dept. of Education may withhold only thatagency's funding. The withholding must be:

proportionate to the total funds allotted. . .to the State as the number of eligiblechildren with disabilities in adult prisonsunder the their supervision of the otherpublic agency is pro-portionate to thenumber of eligible individuals with dis-abilities in the State under the Stateeducational agency; and. . . shall belimited to the specific agency responsiblefor the failure to comply with this part.31

This provision enables a state to discontinuepro-viding special education services to childrenincarcerated in adult facilities without sufferinga severe financial penalty. The only funding thestate could lose would be the funding specifi-cally allotted for special education services forprisoners. The remainder of the state's federalspecial education allocation, i.e. the allocationfor the State Educational Agency, is untouched.

The import of this withholding formula isevident from the following colloquy containedin the Senate debate on the amendments: Mrs. Boxer. . . Under current law, if a State failsto provide special education services to eligibleprisoners, that State faces the loss of all Federalspecial education funding. . . This issue is particularly important to the State

27House Report No. 105-95 at 91.

28P.L.105-17 at §§ 612, 614 and 616.

29P.L.105-17 at §§ 612 and 614.

30P.L.105-17 at § 612 (a)(11)(C).

31P.L.105-17 at § 616 (c)(1)(2).


of California. My State does not provide specialeducation services in adult prisons, as a result, itfaces the loss of over $300 million in Federalspecial education assistance. It seems uncon-scionable to me that the needs of approximately600,000 California special needs children couldbe jeopardized because my State does not pro-vide special education services to an estimatedl,500 prisoners.It is my understanding that this bill makesseveral significant amendments to these pro-visions and dramatically changes the scope ofsanctions that can be imposed on States forfailing to provide special education services tothose incarcerated in adult prisons. Would theSenator elaborate on those changes?Mr. Harkin. . . Under the legislation, States areauthorized to transfer the responsibility foreducating juveniles with disabilities convicted asadults and incarcerated in adult prisons fromState and local education agencies to otheragencies. . .Mrs. Boxer. What are the consequences of thetransfer of authority. . . ?Mr. Harkin. If a State makes such a transfer andif the Secretary finds that the public agency is innoncompliance, the Secretary must limit anywithholding action to that agency. Furthermore,any reduction or withholding of payments mustbe proportionate to the number of disabledchildren in adult prisons under the supervisionof that agency compared to the number servedby local school districts. For example if onepercent of the disabled students were in adultprisons, the Secretary could only withhold onepercent of the funds.Mrs. Boxer. In the State of California, approxi-mately one-fourth of one percent of all peopleeligible for special education are convicted offelonies as adults and incarcerated in adultprisons.It is my understanding that under this bill, ifCalifornia does not provide special educationser-vices in prisons it stands to lose only one-fourth of one percent of its allotted share...is myunderstanding correct?

Mr. Harkin. The Senator is correct. . . .32

While comparable statements were made duringthe House debate,33 at least one memberemphasized the states’ continuing obligation toserve children who either had an IEP or who hadbeen identified as eligible for services in theirlast educational placement. Mr. Martinezremarked: While the bill before us today provides severalexemptions for serving disabled children in adultcorrectional facilities, States will still berequired to serve those who had anindividualized education program in their lasteducational placement. Members need tounderstand that disabled children do not often gostraight from school to jail. However, the highdrop out rate of children with disabilities oftenleads to these individuals encountering ourjustice system.

Fortunately, the provisions in this bill willensure that those children who drop out and thenget into difficulties with our justice system willcontinue to be served in adult correctionalfacilities.34

For those states which elect to continueproviding special education services to childrenincarcerated in adult facilities, the 1997amendments narrow the states'’obligations indeveloping and implementing individualizededucation programs for these children. Statesneed not allow children incarcerated in adultfacilities to participate in standardized statewide

32Congressional Record, May 13, 1997,S4375.

33During the House floor debate on theIDEA amendments, Mr. Riggs, a member of theHouse commented: “This bill also allows states, attheir discretion, to deny services for adult prisonerswhile forfeiting only the pro rata share of Federalfunding for that small segment of the total IDEAeligible population.” Congo Record, May 13, 1997,H2535.

34Congo Record, May 13,1997, H2535-36.


educational testing.35 The amendments alsoprovide that states need not provide "transitionservices" to incarcerated children who will beover age twenty-two at the time of their releasefrom prison.36 These services are designed tohelp adolescent special education students movefrom school towards self-sufficiency.37 Theyinclude an array of options, intended to promoteproductive post-school activities.38 Transitionservices must be based on the individualstudent's needs, taking into account the student'spreferences, and may include a variety of learn-ing experiences.39 Despite the obvious rehab-ilitative benefits of such services, children whomay still be young adults capable of leading pro-ductive lives at the time of their release need not

receive transition services while incarcerated.

This provision reflects Congress’ determinationthat transition services would serve norehabilitative purpose for persons who will notbe returning to society.40 However, by excludingall persons who will be over age twenty-twoupon release, the statute deprives individualswho would most likely benefit from transitionser-vices as they integrate back into society. Thelegislative history strongly suggests that trans-ition services continue to be appropriate wherethey will assist a young adult return safely andproductively to society.41

Finally, states are now authorized to modify achild’s IEP based on “a bona fide security orcompelling penological interest that cannot

35“The following requirements do not applyto children with disabilities who are convicted asadults under State law and incarcerated in adultprisons. . . the requirements. . . relating to partic-ipation of children with disabilities in general assess-ments.” P .L.105-17 at § 614 (d)(6)(A)(i).

36“The requirements. . . relating to transitionplanning and transition services. .. do not apply withrespect to such children whose eligibility under thispart will end, because of their age, before they willbe released from prison.” P.L.105-17 at § 614(d)(6)(A) (ii).

37“The term ‘transition services’ means acoordinated set of activities for a student with a dis-ability that - (A) is designed with an outcome-oriented process, which promotes movement fromschool to post-school activities. . . .” P.L.105-17 at §602 (30).

38Transition services may include post-secondary education, vocational training, integratedemployment, continuing and adult education, adultservices, independent living, or community partic-ipation. P.L.105-17 at § 602 (30)

39Such experiences may include instruction,related services, community experiences, thedevelop-ment of employment and other post- schooladult living objectives, and, if necessary, daily livingskills and functional vocational evaluation. P.L.105-17 at § 602 (30).

40“Mr. Harkin. . . This exception applies tothose inmates for whom special education will haveno rehabilitative function for life after prison. Ouraim in assuring that prisoners receive specialeducation is to make them better able to cope afterprison, result-ing in a safer environment for all of us.This goal does not apply for those who will notreturn to society. . ..” Congo Record May 13,1996S4376.

41“Mr. Harkin: . . . Our aim in assuring thatprisoners receive special education is to make thembetter able to cope after prison, resulting in a saferenvironment for all of us.” Congo Rcd. May 13, 1996S4376.

!!!An individualized education program

that contains meaningful andcomprehensive special education,

related services, and transition servicescan provide a safe and productive

alternative to preventive detention orpost-disposition incarceration.

!!!


otherwise be accommodated.”42 Just what typeof situation will constitute a “bona fide securityinterest”or a “compelling penological interest” isnot clear. The language of the exception itselfsuggests that least restrictive environment con-siderations, i.e., the requirement that a child witha disability be educated with non-disabled peers"to the maximum extent appropriate," factorinto the exception.43 Thus, for example, a statemay rely on this exception to segregate aprisoner receiving special education servicesfrom the general prison population for securityreasons. The legislative history suggests that, inthe case of a child who has been incarcerated inan adult facility and sentenced to death or lifewithout parole, a state would be justified in dis-continuing services.44 What other situations maybe included will be determined as states rely onthis exception over time.

III Using the IDEA in representing children in delinquency matters or in criminal cases:

Getting them out and keepingthem out of incarceration

A. In general

Special education advocacy is -- as described in

previous chapters -- a means for delinquencyclients to gain access to services that cansubstitute for or negate the perceived need forpreventive detention and post-dispositionincarceration. An individualized educationprogram that contains meaningful andcomprehensive special education, relatedservices, and transition services can provide asafe and productive alternative to preventivedetention or post-disposition incarceration.Similarly, in the adult correctional system, ifservices are available through the special edu-cation system, the court may determine that therisk of dangerousness is diminished and that thecorresponding benefit of rehabilitation can beaccomplished in the community.45

Ultimately, success in educating and empower-ing children in the delinquency system caninfluence the adult criminal system. The in-fluence will be direct, as advocates enforcespecial education law on behalf of young peopleincarcerated in adult facilities. The influencewill also be indirect and pervasive, as advocatesdemonstrate that education and individualizedservices are more effective than imprisonment.46

[need references back to other notes in thisnote.]

B. Oliver's case: Using special educationadvocacy to extricate a child from

incarceration facility42“If a child with a disability is convicted as

an adult under State law and incarcerated in an adultprison, the child’s IEP Team may modify the child'sIEP or placement notwithstanding the requirementsof [the least restrictive environment] if the State hasdemonstrated a bona fide security or compellingpeno-logical interest that cannot otherwise beaccommodat-ed.” P.L.105-17 at § 614 (d)( 6)(B).

43P.L.105-17 at § 614 (d)(6), referencing §612 (A)(5)(A) (least restrictive environment).

44“Mr. Harkin. Public agencies may modifyan IEP for bona fide security or compelling penolog-ical reasons. For example, the public agency wouldnot be required to develop an IEP for a personconvicted as an adult and incarcerated in an adultprison who is serving a life sentence without thepossibility of parole or is sentenced to death.” CongoRecord May 13,1997 S 4376.

45The attorney should search for statutoryprovisions that allow adult criminal courts to ordertreatment (rather than standard incarceration sent-ences) for the youthful offender who demonstrates acapacity to benefit from rehabilitative services. See,e.g., D.C. CODE § 24-801, et seq.

46But see, Bishop & Frazier, infra note 53 at298-99 (positing that successful deinstitutionalizationefforts resulting in fewer restrictive juvenile systemplacements led decision-makers to increase transferrates to adult system); but see generally, Miller, LastOne Over the Wall, supra note 2 at 12-14 (suggestingthat deinstitutionalization efforts can be essentiallyillusory).


Judges, lawyers, social workers, educators,evaluators, and parents regularly misconstruechildren's needs and, as a consequence, con-tinuously pound children with disabilities --square pegs, so to speak -- into delinquencysystem, round-hole "remedies"! Oliver'sexperiences exemplify this phenomenon.

As a young child, Oliver changed schools often.He stuttered. He repeated the first grade; he wasin the third grade for three and a half years; andhe repeated the seventh grade. School systempersonnel also, however, "skipped" Oliver fromthe first grade to the third grade and from thefourth grade to the sixth grade, ostensibly to gethim in classes with children closer to his age.Throughout elementary school, Oliver's gradeswere consistently low. Accompanyingcomments from teachers on report cardsindicated, not surprisingly, that Oliver washaving difficulties and needed extra help.Notwithstanding Oliver's tell-tale troubles,school system personnel did not initiate anevaluation to determine whether Oliver had aneducational disability.

Early in his elementary school years, Oliverbecame what teachers often refer to as "abehavior problem." According to Oliver'smother, Oliver was suspended for long periodsduring his first year in third grade. The mothersuccessfully challenged one of the suspensions.After that successful challenge, however, schoolpersonnel began to isolate Oliver in theprincipal's office. The principal -- again, accord-ing to the mother -- literally placed barriersaround Oliver in the office and, further, orderedteachers and students not to interact withOliver. The mother asked school personnel whatcould be done to help Oliver do better in school.No one informed her of her rights to have Oliverevaluated for special education.

Standard scores on achievement tests revealeduneven performance from year to year, as wellas some gaps between Oliver's achievement andhis performance in school. Truancy became pro-nounced when Oliver was in the third grade for

the third time and was an entrenched problem bythe time Oliver was in the seventh grade.

When Oliver was twelve years old, his olderbrother was killed. This death was a trauma forOliver. A subsequent trauma for Oliver was hiswitnessing the murder of a friend of his sister.Both of Oliver's parents struggled with drugusage, and Oliver's father left the family notlong after the death of Oliver's brother.Apparently, Oliver received no counseling orother services to help him to cope with thesetraumas and family problems. Oliver's drug usebegan when he was twelve or thirteen years old.

Oliver engaged in substantial delinquent conductthat resulted in his court-involvement beginningat the age of thirteen. His record includesadjudications for possession with intent to dis-tribute cocaine, possession of marijuana, andunauthorized use of a vehicle. He also missedscheduled court dates and was incarcerated in amaximum-security juvenile facility for the firsttime when he was fourteen.

Coincident with incarcerating Oliver, the courtordered a referral for special education testing.The testing did not occur for almost anotheryear. That testing resulted in a determinationthat Oliver was seriously emotionally disturbedand that, therefore, he was eligible for specialeducation services. No special educationadvocate rep-resented Oliver during the processof that first evaluation and during theformulation of his initial individualizededucation program (IEP). In addition, the motherapparently did not receive notice and took nopart in the creation of the IEP. Persons whoprepared that IEP did not identify Oliver ashaving a learning disability or a speech/languagedisorder. Consequently, in the initial IEP, theydid not adequately address Oliver's educationalneeds.

Subsequently, when Oliver was sixteen, he andhis mother engaged a special education


attorney.47 At that time, Oliver was incarceratedin a six-month drug program at a maximumsecurity juvenile facility. During the first inter-view, the attorney observed that, although Oliverspoke rapidly and intelligently, he almostconstantly expressed tangential thoughts. Heseemed "hyper" and was unable to expresshimself clearly. In signing a release form, Oliveromitted a letter from his own name. He alsostruggled with providing the seven digits of hisphone number in the proper order. Towards theend of the conversation, Oliver presented hisbelief that he may be "more focused" when he isusing drugs.

The attorney obtained from Oliver a detailedschool history; later, the attorney interviewedOliver's mother at length to learn about Oliver'sschool history from her perspective.48 Inaddition, the attorney retrieved school recordsspanning Oliver's entire school history from thepublic school system and from the juvenileincarceration facility. Based upon those records,the attorney compiled a chart to summarize theschool history.

The attorney requested new evaluations from thepublic school system for Oliver and arranged fora private, Medicaid-funded, medical evaluation.A speech pathologist tested Oliver and reportedthat Oliver exhibited a moderate-to-severereceptive language disorder and a mild-to-moderate expressive language disorder; thatevaluator identified a possible language-relatedlearning disability and recommended directintervention in the form of speech/languagetherapy. In the same period, an educationalpsychologist tested Oliver and reported

observing "no distractibility". She found Oliver'soverall cognitive functioning to be in the border-line range, with a full-scale IQ of 71, a verbal IQof 66, and a performance IQ of 80.49 Thepsychologist noted that the disparity betweenperformance IQ and verbal IQ was statisticallysignificant and indicated likely effects ofemotional and language deficits. Oliversubsequently took a separate test of nonverbalintelligence (TONI-2) and scored 93; that scoreis within the average range of intelligence.

Academic achievement testing performed inconjunction with the evaluation of Oliver whenhe was sixteen established grade equivalents infive language-related sub-tests registering in thefirst- grade range. These results put Oliver in the.1 percentile for his chronological age.50 Hescored higher in math-related sub-tests, measur-ing predominantly in the fifth-grade range, withpercentile rankings between ten and seventeen. The educational psychologist also notedproblems for Oliver with visual motor inte-gration skills and fine-motor skills involvingpencil and paper, as well as weakness inauditory perception. The psychologist conclud-ed, not surprisingly, that Oliver needed “positivelearning experiences, guidance, support andstructure.”

47The IDEA confers standing on the parentsof children with disabilities to pursue the specialeducation rights of their children. Tschanneral v.District of Colurnbia, 594 F. Supp. 407 (D.D.C.1984). Cf, P.L.105-17 at § 615 (m).

48Both Oliver and his mother reported thatOliver had stuttered during his pre-school and earlyschool years.

49The intelligence testing performed in theevaluation process one year earlier indicated a full-scale IQ of 68, performance IQ of 77, and verbal IQof 63. The overall score of 68 falls within the rangeof mild mental retardation. IQ scores alone, however,call not establish whether a person is mentally retard-ed. One must also measure and consider the in-dividual's adaptive functioning (i.e., how the in-dividual adapts to the environment in terms of self-care skills and other everyday functions). A standardtest for adaptive functioning is the Vineland.

50This percentile ranking indicates that99.9% of his peers are functioning at a higher level inlanguage- based skills.


A clinical psychologist who tested andinterviewed Oliver when he was sixteen as partof the special education evaluation foundevidence of chronic depression, evidence of areading disorder and a disorder of writtenexpression, and no evidence of psychosis. Theclinical diagnosis included “AdjustmentDisorder with Depressed Mood”, “DysthymicDisorder, Early Onset”, and “Cannabis Abuse”.Both the psychologist and a psychiatrist, whoalso interviewed Oliver, recommended thatOliver be placed into a therapeutic, residentialfacility.

Upon request of the mother and Oliver throughthe special education attorney, the public schoolevaluators and other personnel met with Oliverand with the attorney at the juvenileincarceration facility to devise a new IEP.Oliver’s mother did not attend the IEP meeting.The aftercare worker (parole officer), however,did attend. With his special education attorney,Oliver prepared for the IEP meeting. At themeeting, Oliver sat beside his aftercare worker.He communicated with her and with the attorneyin appropriate ways during the meeting.

The IEP case manager, a public schools em-

ployee, refused to add to the IEP that Oliver waslearning disabled or speech/language impaired.Even when the evaluators endorsed theseconclusions regarding Oliver’s disabilities, andeven after the special education attorney citedthe regulation providing that a child can havemore than one disability, the case managerrefused to change the disability classification onthe IEP. Everyone “agreed to disagree” and toinclude in the IEP, nevertheless, services toaddress Oliver’s speech/language disorders andlearning disabilities. The IEP also containedindividual and group counseling for Oliver, aswell as vocational training and other transitionalservices.

Also at the IEP meeting, the counselorprincipally responsible for Oliver at theincarceration facility, speaking in loud andangry tones, attacked Oliver for his lack of effortand for his negative attitude. Oliver maintainedhis composure. The evaluators discussed howOliver had cooperated with them during thetesting process, and a teacher at the facilitypraised Oliver for working hard and behavingwell in school. Oliver presented some of hisideas about his educational needs and respondedto his counselor’s attacks in a calm andreflective manner. These exchanges at the IEPmeeting seemed to impress the aftercare worker.

Based on the new IEP, the special educationattorney located a private, special education dayschool for Oliver. The school is a 100 percentspecial education program for children withlearning disabilities and serious emotional dis-turbance. The school also provides a strongvocational component; students in the school’sbuilding trades program, for example, participateover the course of an academic year in buildinga home from the foundation up. Based upon are-quest from the special education attorney,public school personnel agreed to place Oliver atthe school and to pay the tuition and other costs,and to provide transportation.

!!!The IEP case manager, a public schools

employee, refused to add to the IEPthat Oliver was learning disabled or

speech/language impaired. Even whenthe evaluators endorsed these

conclusions regarding Oliver’sdisabilities, and even after the

special education attorney citedthe regulation providing that a child can have more than one

disability, the case manager refusedto change the disability classification

on the IEP.!!!


At the subsequent court hearing, the aftercareworker disclaimed a negative report aboutOliver that she had written and submitted to thecourt prior to the IEP meeting. The aftercareworker explained to the judge (who had retainedpower to determine Oliver’s release date) thatOliver had never before been diagnosedproperly. The aftercare worker endorsedremoving Oliver from the incarceration facility,placing him in a group home, and allowing himto attend the private special education dayschool. The judge responded by proclaiming thatthe decision did not revolve around Oliver’seducational disabilities and his special educationneeds. The special education attorney explained,in some detail, Oliver’s educational history andneeds, concluding that Oliver’s specialeducation needs were indeed pivotal to thedecision in the delinquency matter. The after-care worked strongly endorsed the attorney’sconclusions. The delinquency attorney, ofcourse, agreed, as well. The judge orderedrelease.

The evaluation results and recommendations de-veloped through the special education evaluationwhen Oliver was sixteen contrasted radicallywith the information generated through the de-linquency system that was presented to judges inanticipation of disposition hearings when Oliver

was thirteen and fourteen years old. Theprobation officer who prepared the pre-disposition re-ports for the judges wrote onlythat Oliver had behaved poorly and scoredpoorly in school, that he was constantly truant,and that he had repeated several grades. Onemust assume that Oliver’s defense attorneys hadadded nothing, being themselves unaware ofOliver’s educational disabilities and unawarealso of the failure of school system personnelduring Oliver’s entire school career to identifyor address those disabilities. Thus, thedelinquency judges who passed judgment onOliver and ordered his incarceration knew littleabout his school history and absolutely nothingabout his educational disabilities.

Oliver’s circumstances and reactions typify inseveral respects the circumstances and reactionsof many children who are in serious trouble inthe delinquency system and who are incar-cerated. First, Oliver’s parents did not provide astable home for him. Second, Oliver has, and hasalways had, learning disabilities. No onediagnosed or addressed those disabilitiesthroughout his elementary school years. Third,he experienced multiple traumas and received nonoteworthy services to address his seriousemotional problems. Fourth, Oliver’s schoolfailure began early, and he continued to fail inschool without any meaningful intervention.Fifth, after years of failure in school, Oliverbegan to skip school and run away from home.Once in the delinquency system, he also ranaway from halfway houses and other non-secureplacements. Sixth, Oliver used drugs and solddrugs. Seventh, although Oliver has no historyof violent conduct, he was incarcerated at ayoung age (fourteen) and there-after spent muchtime incarcerated.51

51The Court ordered that Oliver reside in adelinquency group home, a facility that housed a totalof ten adjudicated delinquent children. Soon after hisplacement in the group home, Oliver becameembroil-ed in a conflict regarding the Ownership andposses-sion of a coat. Fearing for his safety, Oliverleft the group home without permission. While he

!!!The evaluation results and

recommendations developedthrough the special educationevaluation when Oliver was

sixteen contrasted radically with theinformation generated through the

delinquency system that waspresented to judges in anticipation

of disposition hearings whenOliver was thirteen and fourteen

years old.!!!


C. Using special education advocacy on behalf of young people facingincarceration in adult correctional facilities

1. Transfer from juvenile court to criminal court

An attorney can use special education advocacyeffectively in representing a child with a dis-ability who is facing judicial transfer to adultcriminal court. For example, in State v. MichaelS, the court held that the government's failure toadequately explore Michael's potential forrehabilitation in the juvenile system, with specialedu-cation assistance, precluded thegovernment's re-quest that Michael betransferred to the adult criminal system.52 Anecessary step for the attorney is to excavate thechild's school records and to conduct a thoroughinvestigation of the child's school history. As inOliver's case, above, the attorney can thendemonstrate that the child has an educationaldisability, that school personnel (as well asjuvenile system personnel) never diagnosed oraddressed the child's learning needs, and that thechild has rights to both a comprehensiveevaluation and to appropriate services.

If the standard for transfer requires a judicialfinding that the child is not amenable to

services,53 the attorney can attempt to defeat thetransfer by proving that the child never receivedservices to which the child is entitled underfederal, state, and local law.

2. Convincing a criminal court judge to order probation rather than incarceration

In cases in which a convicted young person isnot facing a mandatory minimum sentence,attorneys should be able to obtain at sentencing,with remarkable frequency, orders for probationrather than orders for incarceration. Attorneysshould remember, in particular, the requirementunder special education law for the school sys-tem to provide related services (includingindividual and group counseling) and transitionservices (including job training). The availabilityof these services adequately provide legitimatealternatives to incarceration. Indeed, the recentlimitations on the states' obligations to providespecial education services to juveniles in adultcorrectional facilities may make the argumentfor probation, as opposed to incarceration, morecompelling. A young person with a disability inthe community may be entitled to special edu-cation and related services which no longer needbe provided in adult correctional facilities. Thus,counsel may be able to argue that the onlymeans of ensuring that the young person receivecertain special education services is to allow thatperson to remain in the community.

was "on the run" from the group home, Oliverstopped attending school. In short order, the policearrested Oliver on a new drug charge, and the Courtordered detention, again. Oliver prevailed at trial in the new drug case. Work-ing with the defense attorney who represented Oliverin the old case and in the new case, the special educa-tion attorney arranged for Oliver's release to a pro-gram that provides supervised living for Oliver in hisown apartment. In addition, Oliver switched schoolsagain -- to another 100 percent special educationschool -- and is receiving counseling and otherrelated services.

52In Re Michael S., 423 S.E.2d 632 (W. Va.1992).

53But cf: generally, Donna M. Bishop &Charles E. Frazier, Transfer of Juveniles to CriminalCourt: A Case Study and Analysis of ProsecutorialWaiver, 5 NOTRE DAME J.L. ETHICS & PUB.POL'Y 295 (1991) (study of prosecutorial waiver inFlorida finding, inter alia, that -- notwithstandingtransfer standard of non amenability to treatment --only 29 percent of transfers in two counties studiedinvolved the alleged commission of a felony againstpersons). Thus, based on the relatively non-seriouslevel of offenses in most transfer cases, one Cannotconclude that decisionmakers, in making decisions totransfer, are genuinely finding youth nonamenable totreatment.


An attorney should seek agreement from theclient, in some cases, to suggest that the judgerequire that the client Participate in specialeducation services as a condition of probation.Making this "offer" to the judge sometimeshelps to convince the judge and the prosecutorthat they are taking a risk that is manageable andthat is not unreasonable.54

A probation officer (or other government orcourt functionary responsible for preparing apre-sentence report for the Court) may have alarge caseload and, thus, may have difficultyarranging programs and services for youngpeople facing sentencing in criminal matters. Insuch a case, an attorney may optimize the like-lihood of obtaining an order of probation ratherthan incarceration by arranging specialeducation services, formalized in an IEP.Further, by pro-viding the plan for services andthe IEP to the probation officer in advance ofsentencing, the attorney will likely increase thechances that the probation officer will adopt theplan and in-corporate the plan into the pre-sentence report. Obviously, to whatever extent isnecessary, the attorney should work with theprobation officer -- and negotiate with theprobation officer -- in order to convince the

probation officer to adopt and incorporate thespecial education sentencing plan.

3. Martin's case: Using special education advocacy to extricate a young person from incarceration in an adult facility

Martin has an extensive juvenile delinquencyrecord. He is also learning disabled andemotion-ally disturbed. He has been in a numberof special education placements including a resi-dential treatment facility. After turning eighteen,Martin continued to get arrested. Primarily, hewas arrested on relatively minor charges.

By the time he was nineteen, Martin had a cou-ple of adult criminal convictions. He alsoallegedly had violated conditions of probationand was facing additional charges for leaving ahalfway house and for failing to appear in court.These latter charges resulted in preventivedetention in the adult jail pending a probationrevocation hearing and a trial on the failure toappear charge. The criminal court judges encountered Martin asa young person "with an attitude" who regularlyseemed to disobey court orders. One of thosejudges assured Martin that he had received "hislast break". The special education advocate com-piled evidence of Martin's education-relateddisabilities, including information from previouspsychological and educational evaluations. Theadvocate provided to the judge that compilationwith a detailed cover letter that explainedMartin's disabilities and his educational history.Then, coordinating with the criminal defenseattorney, the special education advocate ap-peared at the probation revocation hearing.

The judge who previously had issued the "lastbreak" to Martin listened attentively to theadvocate's presentation. In a remarkable andsurprisingly-intense moment, the judge stoppedthe proceeding to address the law studentadvocate. The judge thanked the student forproviding the cover letter and other materials

54If the young person with adult criminalmatters pending still has open cases in thedelinquency system, the attorney can arrange servicesthrough the special education system, as well asthrough the delinquency system. The attorney thencan offer those services as an alternative toincarceration in the adult system. Again, the attorneymay find that proposing to make those services acondition of probation in the criminal case helps toconvince a judge and prosecutor to agree to thearrangement. If the child is not eligible for special education ser-vices, the defense attorney may attempt to arrange forservices through the delinquency system. If thechild's cases in the delinquency system are in a post-disposi-tion posture, the attorney might be able,nevertheless, to negotiate for services through amutually-requested revocation of aftercare (parole).Services through the delinquency system could thenbecome conditions of probation in the criminal case.


and for making the oral presentation. The judgeexplained that he ordinarily spends only a fewminutes with each defendant and observes eachdefendant's demeanor in court without havingany other context through which to know thatperson. The judge acknowledged that he had"judged" Martin to be a person with an attitudeproblem and had made a note to revoke Martin'sprobation and order incarceration if Martinviolated any conditions of the probation. Thejudge, in addition, reiterated that he hadpromised Martin and everyone else that hewould incarcerate Martin if and when Martinmessed up again. But the judge then thanked thelaw student for helping the judge to understandsome things about Martin, and the judge gaveMartin another chance at probation.

4. Jack’s case: Building a case for moving a serious, violent offender from an adult facility to a residential treatment center

Jack’s family background and educational back-ground are an amalgam of neglect. As a youngchild, Jack was the target of emotional andphysical abuse, and he did not receive sufficientsupport to meet his daily needs. Upon enteringelementary school, consequently, Jack demon-strated serious emotional problems.Unfortunately, educational neglect compoundedthe earlier neglect. Jack failed the first grade,and school system personnel failed to suggest anevaluation or to diagnose Jack’s emotionaldisturbance and learning disabilities for severalyears. Even after school personnel identifiedJack as disabled, they failed to provide appro-priate services.

In contrast, Jack was identified early – before hewas a teenager – as a delinquent child. From theage of twelve through seventeen he stayed in aseries of delinquency group homes, juvenileincarceration facilities, and residential treatmentfacilities. Increasingly, Jack resisted attempts at

intervention and withdrew from people; he washostile to adults and, particularly inincarceration settings, to other children. Inaddition, Jack’s propensity to violence focusedon women, perhaps as a consequence of havingwitnessed domestic violence in the home andhaving been himself a victim of emotionalcruelty and physical abuse.

At the age of seventeen, as a result of placementorder in a delinquency case, Jack was residing ata private residential treatment facility in a neigh-boring state. Left alone with one other residentand with a female nurse, Jack physicallyattacked the nurse, took her keys, and attemptedunsuccessfully to escape from the facility.Administrators of the private residential facilityterminated Jack from their care, and stateofficials transferred Jack back to the juvenileincarceration facility.

During the time that Jack was at the juvenile in-carceration facility (following his expulsionfrom the residential treatment center), specialedu-cation counsel met and discussed with Jackhis continuing interests in obtaining special edu-cation, related and transition services. Jack ex-pressed tremendous anger regarding the “treat-ment” he had previously received in juvenilejails and residential treatment centers.

Notwithstanding his anger regarding previoustreatment and educational experiences, Jackidentified several objectives that he and counsel

!!!Jack failed the first grade, andschool system personnel failedto suggest an evaluation or to

diagnose Jack’s emotional disturbanceand learning disabilities for severalyears. Even after school personnel

identified Jack as disabled, they failedto provide appropriate services.

!!!


recognized as relevant to the process of formula-ting an IEP. For example, although Jack’smother was dead and his father’s whereaboutswere unknown, Jack was quite focused on main-taining and strengthening a relationship with anadult relative who could serve as a surrogateparent both for educational and familial pur-poses. Thus, he agreed to participate in familycounseling with his maternal aunt, and he affir-matively agreed with putting parent counseling(with the aunt) or family counseling in the IEP.

Jack readily verbalized vocational goals and,with hesitation, articulated some academic goals.The vocational goals translated directly intoproposals for transition services in the IEP.Jack’s hesitation in articulating academic goalsarguably stemmed from many years of schoolfailure and his related feelings of humiliationand rejection. Still, he recognized that he wouldbe interested in studying in a one-on-one settingwith a "good" teacher.

Jack and his counsel participated in an IEPmeeting and convinced the rest of the teammembers that the various services (outlined ingeneral terms above) that Jack had agreed topursue were indeed appropriate for him. The IEPrequired placement in a twenty-four hourresidential treatment setting with one-on-oneteaching, appropriate vocational training andtransition services, recreation, and family/parentcounseling. In recognition of Jack's academicpotential, extremely low function, and language-based disabilities, the participants also incor-porated computer-based instruction into the IEP.

Subsequently, Jack was charged as an adult incriminal court based upon the assault of thenurse. The court transferred Jack to a jail in theneighboring state and preventatively detainedhim pending trial. While incarcerated in theadult facility, Jack did not receive educationalservices of any sort. Jack was convicted of anaggravated assault and attempted grand larceny.At sentencing in that case, Jack's defenseattorney proposed that the court suspendimposition of the adult sentence and return Jack

for placement in the juvenile incarcerationfacility in Jack's home jurisdiction pendingplacement of Jack by the school system in anappropriate, secure, residential treatment facility.At the sentencing, the defense counsel calledJack's special edu-cation attorney as a witness.Both the defense attorney and special educationcounsel proposed that the sentencing judgemaintain control, a veto power, over Jack'ssubsequent placements and the power to returnJack to adult prison, if appropriate andnecessary, following Jack's twenty-first ortwenty-second birthday.

Jack's aftercare worker (parole officer) in hisjuvenile case supported the plan to return Jackfor placement in an appropriate residentialtreatment facility. She recognized that the youthservices (juvenile delinquency) agency and thepublic school system would be responsible forsplitting the cost of Jack's residential care andeducation. Thus, the availability of treatmentpotential-ly provided officials and administratorsfrom the neighboring state an opportunity toavoid the financial burden of incarcerating Jack.Moreover, adult correction system personnel inthe neighboring state are apparently ill-preparedto provide special educational services to Jackand other young people incarcerated in adultfacilities. Hence, by returning Jack to his homejurisdiction for an educational placement, thejudge could have ensured that Jack received hisfederally- and locally-mandated rights to specialeducation services. In addition, the judge couldhave helped adult corrections personnel avoid apotential challenge (through the special edu-cation adjudication system) based upon theirinability to provide Jack with a free, appropriatepublic education.

The judge, nonetheless, sentenced Jack totwenty years in prison, refusing to suspend thesentence and return Jack to his home jurisdictionfor special education placement in a residentialtreatment facility. The sentencing strategy failed,in part, because special education counsel failed,prior to the sentencing, to find a residentialtreatment facility that was appropriate for Jack.


In addition, the overall preparation for thesentencing hearing was arguably inadequate and,self- evidently, was insufficiently persuasive.Not-withstanding those shortcomings andsetbacks, counsel began the day after the hearingto devise and implement plans to challenge thesentence and counsel will continue to seek anappropriate placement and appropriate servicesfor Jack.

5. Daniel's case: Mitigating sentence, improving the quality of time served

Like Jack, Oliver, and others described in thischapter, Daniel experienced little more thanfailure in school from the earliest gradesthrough, ultimately, the point of hisincarceration as a teenager. Daniel's publickindergarten teacher wrote on his report card,literally, that he was "failing" kindergarten. Asuccession of teachers wrote essentially the samecomment. Daniel fail-ed year after year inelementary school. Some years, schooladministrators would allow Daniel to move intothe next grade; other years, they would "holdhim back".

No one referred Daniel for a special educationevaluation. At the age of fifteen, Daniel wasarrested and charged in delinquency court for analleged assault with a dangerous weapon. Hismother did not attend the initial hearing, and thejudge ordered preventive detention, finding thatDaniel -- who had no previous record -- wouldpresent, if released pre-trial, a danger to others.

At that point, Daniel and his mother engagedcounsel from the UDC School of Law JuvenileLaw Clinic to represent them regarding specialeducation matters. Special education counsel (alaw student working under the supervision of aclinical professor) requested from the schoolsystem a special education evaluation for Daniel.In the meantime, working collaboratively withthe delinquency defense attorney, specialeducation counsel also prepared a motion toreduce Daniel's level of detention. The defense

attorney had not yet filed that motion, however,when the government moved to dismiss theircase against Daniel. The case was dismissed,and Daniel was released.

Daniel resisted the special education evaluat-ions, but when the law student (specialeducation counsel) accompanied him, Danielcooperated somewhat with the evaluators. Theevaluators concluded that Daniel was bothmildly mentally retarded and emotionallydisturbed. A psychologist reported that, basedupon a consistent failure to negotiate theenvironment, Daniel was extremely frustratedand was a time bomb waiting to explode.

A first special education placement for Danielprovided approximately fifteen hours per weekof specialized instruction in a public schoolenvironment. He was also supposed to receivecounseling as a related service. Daniel and thespecial education providers were a dysfunctionalteam. Daniel resisted the education and relatedservices; the providers routinely failed to showup and failed also, when they did show up, toengage Daniel.

Daniel let counsel know that he was dissatisfiedwith the special education services andplacement. He had experienced nothing butfailure, and he did not want to continue withschool. Daniel's mother was not prepared toassert a view or position that contradictedDaniel's; on the other hand, perhaps she knewthat, given Daniel's consistent failures in school,she would not be able to convince him to trust inthe process. She instructed special educationcounsel to represent Daniel based upon hisdesires.

The public school special education casemanager and the evaluators asserted a positionthat the current placement was not appropriatefor Daniel, and, remarkably, they argued thatDaniel needed a twenty-four hour per day,residential treatment placement in order tobenefit educationally. Daniel stopped attendingschool. According to instructions from the


clients, Daniel's special education counsel tookno position and took no action. School systempersonnel also took no action: they did not issuea notice of placement for Daniel, and they didnot seek to enforce, through the administrativehearing process, their position that Danielrequired a more restrictive educational setting.Daniel and his mother did not respond to contactfrom the special education counsel, andeventually allowed the representation toterminate.

Approximately a year later, Daniel, then seven-teen, and another young man became entangledin a verbal altercation with an off-duty policeofficer; the two young men returned to the sceneof the altercation and shot and killed the officer.Daniel was convicted as an adult of second-degree murder. At the sentencing, with Daniel'spermission, special education counsel providedinformation regarding Daniel's lamentableschool history as mitigation evidence. Daniel, ateighteen years of age, re-engaged special edu-cation counsel to ascertain whether Daniel canobtain special education services. Daniel hasbeen sentenced to forty-six years to life.

6. Defeating a petition to revoke probation (or parole)

People who have a receptive or expressivelanguage disorder, by definition, are likely tomisunderstand or inaccurately process whatother people say to them. They, therefore,relatively frequently do not comprehendinstructions. A young person with such adisorder may constantly "mess up" by failing tomeet at appointed times with a probation officer,by failing to attend scheduled drug tests andcourt dates, etc. In many cases, these failurestranslate into petitions to revoke probation.

Probation officers, prosecutors, defenseattorneys, and judges rarely recognize that theyoung person with a language processingdisability is simply not able to comply with themyriad instructions. Rather, people predictablyascribe a "negative attitude" to the young

person. People fail further to recognize the needto accommodate the young person bysimplifying directions, drawing maps, writingout instructions, accompanying or "traveltraining" the young person, making morereminder calls, etc.55

In defending a young person with a receptive orexpressive language disorder in a probationrevocation hearing based upon charges that thechild violated conditions of probation, anattorney can call a special education teacher whoworks with the child or a psychologist who hasevaluated the child to prove that the child's non-compliance with conditions is not volitional andthat, on the contrary, the adults surrounding thechild have misunderstood fundamentally thechild's needs. The same analysis, obviously,applies to revocation of parole (or aftercare).

IV. Running into walls on the way to prisondeconstruction

To deconstruct delinquency incarcerationfacilities and adult corrections facilities, onemust confront and surmount conceptual andconcrete barriers.56 [Change note to reflectearlier citation of Miller's book.] One barrier isthe dearth of programs that effectively addressyoung people's problems and build upon theirstrengths.

In releasing Oliver, the judge ordered that he goto a group home. Oliver had eloped, absconded,or -- in the vernacular -- run away from grouphomes before. Even when buttressed by servicesat a private special education school, a grouphome placement constituted a high-risk option

55One might research, as well, whether thefailure to accommodate constitutes a violation ofother federal, state, or local anti-discrimination laws.Such an inquiry is beyond the scope of this article.

56For an enlightened and pathbreaking tourof a statewide demolition operation, see Jerome G.Miller, Last One Over the Wall: The MassachusettsExperiment in Closing Reform Schools (1991).


for Oliver. He ran away, ostensibly in responseto a confrontation with another child regardingthe ownership of a coat. The special educationattorney again retrieved Oliver, with a successfullegal argument, from the incarceration facility;the Court re-ordered a group home place. Oliverran away again; the cycles of failure continue tospin.57

Some interventions are remarkably effective inreducing recidivism for serious offenders.58

[Change this note also to reflect earlier citationto Miller's book.] Chart __ presents programcharacteristics, in a listing developed by RichardW. Sammons, a juvenile justice consultant.Characteristics listed in the left column of thechart are associated with traditional programs; inthe right column are characteristics associatedwith more effective programs.

Rather than accepting boilerplate IEP language,the child and the parent should carefullyconsider and help craft the IEP educational goalsand objectives. Further, they should strive toinclude in the IEP appropriate related servicesand transition services. Music therapy, arttherapy, family counseling, individualizedrecreational programming, tutoring, andinternships are examples of the kinds of servicesthat one might consider.

57The clinical psychologist and psychiatristwho evaluated Oliver both recommended that Olivergo to a residential therapeutic center. Indeed, Olivermay yet go to such a placement. Arguably, thesecenters are necessary for some children. The cost perchild is extraordinarily high, and, in many cases, thechild returns from a year or two in treatment to thesame problems that existed before the child left.Often, the child has not meaningfully confrontedfamily crises, nor have the residential treatmentcenter staff helped the child to address substantiallythe child's educational and vocational needs.

58See generally, Jerome G. Miller, Last OneOver the Wall: The Massachusetts Experiment inClosing Reform Schools, 151-226 (1991).

Based on their discussions and agreements, Davittand his attorney pushed at the IEP meeting for adaily schedule for Davitt that included half the dayin a computer-based educational program toaccommodate Davitt’s language-processingproblems, with a one-on-one teacher, using age-appropriate and academically-appropriate software.They also proposed that, after one semester inschool, Davitt participate in a computer-repairtraining course. Davitt and his attorney proposedalso that Davitt work at a barber shop in theafternoons and that he have a job coach. Davitt andhis attorney also advocated to include tutoring andinstruction so that Davitt could get his barber’slicense as well as his driver’s license. They alsoproposed music therapy based on Rap Music as ameans for Davitt to explore language arts and toexplore math concepts (based on the complexrhythms in the music). They also proposed thatDavitt participate in a course for learning-disabledteenagers on anger management, conflict resolution,and decision-making offered at night, once a week,in a local church. School system personnel participating in the IEPmeeting for Davitt resisted several of the morecreative or unusual proposals that Davitt and hisattorney made. The Rap Music emphasis inparticular, and music therapy in general, troubledseveral of the participants. Nevertheless, the IEPand overall release plan were sufficient to convincethe judge to release Davitt from the juvenileincarceration facility. For example, Davitt has amentor and is enrolled in the fourteen-week course.The one-on-one, computer-based educationalcomponent has been arranged. Personnel from theyouth services agency are providing (or have agreedto provide) some of the services; school systempersonnel are providing (or have agreed to provide)other services. (Davitt was released a matter ofweeks prior to this writing.) Davitt and his attorneycontinue to advocate informally and search for theremaining services – including Rap-based musictherapy – that the team members refused to includein the IEP. Using the administrative litigationprocess, Davitt and his attorney are prepared topursue those remaining services.


Another wall that an advocate might face withthe child and parent is the dilemma between, onthe one hand, choosing public school placementsthat may be substandard or at which officialsreject (and suspend and expel) and, on the otherhand, choosing private placements that aresimply “exclusive” and, in that sense, notembracing “delinquents”.59 In response to thisdilemma, advocates can negotiate with bothprivate and public school personnel to devise aprogram in one setting or the other that meetsthe needs of a particular child and family.

For a child who has failed consistently in schooland who has been out of school for an extendedperiod, counsel may need to work with the childto fashion and propose an individualized pro-gram that will reintegrate the child into educa-tional services. Such a program may not resem-ble a traditional educational program or existwithin a standard school setting. Of course, an

special education students who attend schoolsoutside their neighborhood ride the yellow schoolbuses. Thus, traveling on the bus is stigmatizing. Recognizing the relative lack of services andstructure at the public school and striving to provideMartin with the “least restrictive environment”, theIEP team members agreed to include daily after-school tutoring, a one-on-one teacher’s aide(assigned to Martin), as well as extensive otherservices. These services, however, did notmaterialize. Martin soon thereafter was the victim ofa serious assault (in an incident unrelated to school),and, fearing for his safety, entered a witnessprotection program. Upon his return, some monthslater, from the witness protection program, Martinwas allowed to re-enroll in his previous privateschool placement.

Martin’s case re-visited: One exampleof bouncing between public and

private school placements

Part of the difficulties in the school history ofMartin, the young man described above (in sectionIII(C)(3)), was his having bounced between privateand public school placements. Fairly early in hisspecial education schooling, Martin attended aprivate, 100% special education day program. Thatprivate school program was expensive. Publicschool administrators re-assigned Martin to apurportedly comparable public school program.Martin’s parent – who was not, at that time,represented by special education counsel – did noteffectively challenge the placement. That programwas overcrowded, and Martin did not receive thespecial education and related services to which hewas entitled. Following additional delinquency involvement,Martin went off to a residential treatment center inanother state. (Martin’s jurisdiction, the District ofColumbia, essentially has no residential placementfacilities that accept children from the delinquencysystem.) Unhappy being far wary from home,Martin contemplated the rules at the treatmentcenter and recognized that he could effectuate hisrelease by starting a fire. He did that and was senthome. Martin subsequently returned to the private schoolplacement. That second stint at the private schoolwas disrupted when Martin was arrested, chargedwith a delinquent act, and incarcerated for a periodof months in a juvenile detention facility. Publicschool personnel claimed that the private schooladministrators were unjustly requesting payment forMartin for the period of time during which Martinwas detained. The private school administrators, fortheir part, claimed that their contract requiredpayment until school system personnel notifiedthem that a student – Martin, in this case – wasterminated. Further, the private schooladministrators felt that they were not able to “fill”Martin’s seat until they clarified his status. Finally,the dispute resulted in the private schooladministrators’ refusal to re-admit Martin unlessthey received the back payment. At the subsequent IEP meeting, Martin stronglyargued for placement at a public school close to hishome. Martin objected to, among other things, thelong bus ride on the “cheese bus” (i.e., the yellow

59 One might say that the public schools often arenot academically competent and that private schoolsare not culturally competent.


unusual or creative program that one must piecetogether will necessarily be more difficult toimplement than a pre-existing program.

Finally, one may run headlong into an additionalwall, the wall that represents barriers to econom-ic opportunities. Children with disabilities in thejuvenile and criminal justice systemscharacteristically have relatively poor chances offinding a path that leads, around the barriers, togood training and to good jobs. Many clientswho face an apparent inability to becomeproductive and to earn a living within theregular, legitimate economy repeatedly resort tocrime, particularly to selling illegal drugs.Recognizing the barriers surrounding economicopportunities for people with disabilities,particularly those ho are poor, poorly educated,and members of minority groups, advocatesmust vigorously enforce clients’ rights to specialeducation services and must particularly enforcerights to transition services.

Individualized transition and related services canand should be based in neighborhoods andcommunities where children who are thesubjects of IEP's live. If public school personnelare responsive to children's individualized needs,such transition services increasingly willflourish within, and attached . to, neighborhoodschools. If, on the other hand, school personnelresist and refuse to provide or pay forappropriate services, children and theiradvocates can find or create those services andopportunities within the children'sneighborhoods and communities and then ask ahearing officer to order the school system to payfor those private services, as well as forattorneys' fees.

Listing or describing other approaches foreconomic development, community organizing,and individual empowerment would be beyondthe scope of this chapter and of this manual.

Sam’s case: Attempting to re-integratea child into school

Sam is mildly mentally retarded, and he has neversucceeded markedly in school. When he firstentered the delinquency system at the age offourteen, he had been truant constantly over acouple of years; he also was using marijuanaregularly. Sam also stayed out late at night andappeared to be malnourished. Sam expressed little interest in re-entering school.Facing incarceration, however, he agreed toparticipate in several hours of tutoring each day asan “interim” special education placement until heand his special education counsel could locate anappropriate special education placement. Counsellocated a student in a masters program in adepartment of special education at a localuniversity. That graduate student tutored Sam (andSam’s younger brother) on a daily basis. Sam also agreed to related services, includingrecreational services of boxing and basketball, andto parent counseling in which a therapist was totrain Sam’s grandmother (his custodian) to use non-aversive behavior management approaches withSam. Furthermore, the therapy was to occur in thehome, and Sam was to participate by, among otherthings, helping to identify rewards that he wouldenjoy receiving as reinforcement for positivebehavior. Sam did participate with the tutor for some weeks,but counsel and others were essentiallyunsuccessful in finding a therapist who was ableand willing to conduct the behavior managementtraining in-home with Sam and with Sam’sgrandmother. In addition, although counsel locateda person to train Sam in boxing, school systempersonnel were not prepared to pay for that service(absent an administrative hearing battle). Sam hadbeen re-incarcerated before counsel couldcoordinate the services and obtain agreement fromschool system administrators to support theservices. Sam spent a few months in the juvenile detentionfacility. Having participated in tutoring, Sam wasable to apply himself to the modest school programoffered in the detention center. Sam is now back inthe community and planning to enter a specialeducation school. The effort to patch togethertutoring and an array of other services was, at best,


V. Conclusion By using special education advocacy in themanner summarized in this chapter, an attorneycan extricate or insulate children and youngadults from confinement in juvenile facilities orin adult corrections facilities. On a moresubstantive basis, one can help a young personwho has a disability to become productive andrelatively well- adjusted by helping that youngperson to understand the disability and byhelping that young person to obtain appropriatespecial education, related services, and transitionservices. The IDEA requires that school system,delinquency system, and -- still, to an extent --corrections system personnel provide theseservices to children and young adults who aredisabled. Thus, if a sufficient number of trainedattorneys60 enforce rights codified in theIDEA, many cell doors and prison gatescould open.61 One can envision ambitiousinitiatives in states allover the country forestablishing constructive educationalprograms and for "deconstructing" prisons.

Time dollars guilds (“Time crews”):A proposal for creating and developing

economic opportunities for young peoplewith disabilities

One idea for scaling the wall representingeconom-ic barriers is to design and develop asystem of “guilds” for young people. The guildswould be, in essence, collectives of teenagersworking together to support each other. The guildswould focus on, among other things, home orapartment renovation, food services, transportation(automobile repair and rental), furniture building,child and elder care, computer and informationservices, and arts. The guilds would be based on Time Dollars, a sys-tem created by Edgar Cahn in which value attaches– without the medium of money – to each person’slabors and to each person’s time. Each person’shour of work constitutes a Time Dollar that goesinto a software “bank”, redeemable for the servicesgenerated from another person’s hour of work.1 Onemight refer to the separate guilds as “Time Crews”. Teenagers in the various guilds, through the TimeDollars system, would be able to serve each otherwithout exchanging cash. Moreover, by developingskills through participation in guilds, young peoplewould be able to move into the market economy asapprentices or as regular, paid workers andentrepreneurs. 1See generally, Edgar Cahn & Jonathan Rowe, Time Dollars

60 See, Burlington v. Mass. Dept. of Ed., 471U.S. 359 (1985). Special education litigants whoprevail against the public school system are entitled,by federal statute, to reimbursement for theirattorneys' fees.

61 In this regard, as noted previously, the fee-shifting provision of the IDEA provides a largely-untapped basis for funding advocacy for childrenwho are incarcerated or who face incarceration.

Chapter

Six

The Special Education Process: Eligibility and Entitlement

An advocate representing

children in the delinquency

system should anticipate that a

large percentage of those

children are eligible for special

education, related services,

and transition services.

Written by

Mary G. Hynes

6-2 Chapter Six: Eligibility and Entitlement

A child who is between the ages of three andtwenty-one (until the end of the semester inwhich the child turns twenty-two) and has adisability that adversely affects the child'seducational performance likely is entitled to aFree, Appropriate Public Education (FAPE).Common disabilities include mental retardation,hearing impairments, speech or languageimpairments, visual impairments, seriousemotional disturbance, orthopedic impairments,autism, traumatic brain injury, other healthimpairments, and specific learning disabilities. AFAPE must be in accordance with stateeducational agency standards, must include anappropriate elementary or secondary educationin the state involved, and also must be basedupon an Individualized Education Program(IEP) design-ed for the child. A FAPE must beprovided by the state at no cost to the child or, ofcourse, to the child's parent(s).

A FAPE consists of special education, relatedservices, and, if the child is fourteen years old orolder, transition services. Related services are, inessence, any services necessary to help the childbenefit from the special education services.Transition services are services that prepare thechild to make the transition from secondaryschool to post-secondary school, from school towork, and from living dependently to living in-dependently. Both categories of services, relatedservices and transition services, are broadcategories. The Individuals with DisabilitiesEducation Act (IDEA) and its implementingregulations list a number of these services whichstate that the lists are not exhaustive or

exclusive.

The Supreme Court has defined FAPE to requirethat the school system rigidly follow the proce-dural requirements of the IDEA. Board of Educ.of the Hendrick Hudson Cent. Sch. Dist. v.Rowley, 458 U.S. 176 (1982). Proceduralviolations by the school system likely indicatethat the school system has denied the child afree, appropriate public education. On the otherhand, appropriateness of an educational programdoes not require maximizing the child's educa-tional opportunities; rather, appropriatenessmeans that the child is receiving some educa-tional benefit that allows the child to learn thegeneral curriculum adopted for all students, tomake meaningful progress in other areas ofeducational need related to his or her disability,and to make progress towards graduation fromyear to year.

An advocate representing children in the delin-quency system should anticipate that a largepercentage of those children are eligible forspecial education, related services, and transitionservices. These services can help to stabilize achild and justify, among other things, a court'sdecision not to detain the child.

I. Eligibility

The first step in determining whether a studentmay be entitled to special education and relatedservices is to ascertain whether the student has adisability. If the student has a disability coveredby the IDEA, the second step is to establish thatthe child's disability adversely affects the child'seducational performance to the extent that spec-ial education and related services are necessary.If the student has a disability that is not coveredby the IDEA, or the disability does not adverselyaffect the student's educational performance, thestudent may still be entitled to protection undersection 504 of the Rehabilitation Act.Depending upon the child's needs, section 504protection would entitle the student to receivespecial edu-cation and related services, regulareducation and related services, or

!!!An advocate representing childrenin the delinquency system shouldanticipate that a large percentageof those children are eligible for

special education, related services,and transition services.

!!!


accommodations within regular education.

A. The IDEA: The basic federal law for children with disabilities affecting education

The (IDEA) covers children with certain specificdisabilities from the ages of three throughtwenty-one.1 20 U.S.C. § 1400 et seq.; 34C.F.R.§ 300 et seq.. These disabilities are:mental retardation, hearing impairments, speechor language impairments, visual impairments,serious emotional disturbance, orthopedicimpairments, autism, traumatic brain injury,other health impairments, or specific learningdisabilities. 20 U.S.C. §1401(3)(A)(I); 34 C.F.R.§300.7 (1997). The regulations include“multiply handicapped” as a separate disability.34 C.F.R. §300.7(a)(5) (1997). A student whohas one of these enumerated disabilities iseligible for special education and relatedservices if the disability adversely affects thestudent’s educational performance to the extentthat special education and related services arenecessary. 20 U.S.C. §1401(3)(A)(ii); 34 C.F.R.

§300.7(a)(1) (1997).2

Advocates must thoroughly familiarize them-selves with the criteria for each of the disablingconditions since the nature of the disabling con-dition will be a primary consideration in devel-oping the child’s educational programming. Anaccurate understanding of the child’s disablingcondition is fundamental to creating an educa-tional program which will meet the student’sunique needs. For example, an educational pro-gram designed to meet the needs of a studentwith learning disabilities would not be appro-priate to meet the needs of a student with mentalretardation. Gregory K. v. Longview Sch. Dist.,811 F.2d 1307 (9th Cir. 1987)(distinguishingmental retardation from learning disabilities). Tosecure an appropriate educational program,therefore, an advocate must become familiarwith, and conversant in, the defining criteria foreach disability. The federal regulations definethe various disabilities at 34 C.F.R. §300.7.3

1Individuals with Disabilities Education act(IDEA) eligibility continues through the semester inwhich the child turns twenty-two. With the exceptionof certain older students who are incarcerated in adultfacilities and were not previously identified asneeding special education, federal law requires thatstates pro-vide a free appropriate public education(FAPE) to all students from the ages of three throughtwenty-one unless the provision of educationalservices to children of ages three, four, five, eighteen,nineteen, twenty, or twenty-one would be contrary toState law or prac-tice. 20 U.S.C. §1412(a)(1); 34C.F.R. §300.122 (1997). In other words, if State lawdoes not provide for educational services to anychildren in this age range, the State need not providespecial education and related services to childrenwith disabilities in this age range. See Stewart v.Salem Sch. Dist., 670 P.2d 1048 (Or. App.1983)(Oregon not required to provide specialeducation services to children under regular schoolage where Oregon did not provide any educa-tionservices to non-disabled students in the same agerange).

2At the States’ discretion, children agesthree through nine who are experiencingdevelopmental de-lays may also be eligible forservices under the IDEA. 20 U.S.C. §1401(3)(B).This category of eligibility – developmental delays –for children ages three to five is in addition to theother enumerated disabilities. Prior to the 1997amendments to IDEA, the upper limit for eligibilityin the developmental delay category was age five.See 34 C.F.R. §300.7(a)(2)(1997). 3For an extensive discussion of educationalevaluations and diagnosing disabilities, see Chapter8, infra.

!!!Advocates must thoroughly

familiarize themselves with thecriteria for each of the disablingconditions since the nature of the

disabling condition will be a primaryconsideration in developing the child’s

educational programming.!!!


B. The Rehabilitation Act

If a student is not eligible for special educationand services under the IDEA, the student maystill be eligible to receive services under section504 of the Rehabilitation Act. 29 U.S.C. §794;C.F.R. §194 et seq. The Rehabilitation Act pro-vides that: “no otherwise qualified individualwith a disability . . . shall, solely be reason ofhis or her disability, be excluded from participa-tion in any program or activity receiving Federalfinancial assistance. . .” 29 U.S.C. §794(a). A“person with a disability” means a person who(1) has a physical or mental impairment whichsubstantially limits one or more major lifeactivities (including learning); or (2) has arecord of such an impairment; or (3) is regardedas having such an impairment. 34 C.F.R. §104.4(j). A student is considered “otherwise qualified”for educational services if the student is ofcompulsory school age or if the state provideseducational services to non-disabled students ofthe same age. 34 C.F.R. § 104.4(k). A student isalso "qualified" if the student is of an age duringwhich it is mandatory under state law to provideeducational services to people with disabilities,or is someone to whom the state is required toprovide FAPE under IDEA. See 34 C.F.R.§104.3(k)(2) (ii), (iii).

As a general rule, most students with disabilitieswill be covered by the IDEA, without relianceon the Rehabilitation Act. However, in someinstances, a student may have a disability that isnot covered by the IDEA. For example,Attention Deficit Disorder (ADD),4 anincreasingly prevalent disability of elementaryage children, is sometimes, but not always,covered by the IDEA under the category of"other health impairment."5

However, courts have held that a student withADD may be “otherwise qualified” to receivespecial education and related services under theRehabilitation Act, even if the student is notelig-ible under the IDEA. See Lyons v. Smith,829 F.Supp. 414 (D.D.C. 1993). Anotherexample of where § 504 might be important iswhere a child has a disability under IDEA, butdoes not need “special education” -- and so isnot IDEA-eligible. Section 504 wouldnonetheless require the provision of relatedservices and accommodations.

In other cases, a student with a disability maynot require special education services but maybe subject to discrimination, thus entitling thestudent to protection under the RehabilitationAct. For example, a student who is HIV positiveor who has been diagnosed as having AIDS maynot need any special services, but may requireprotection from discriminatory exclusion from

4In this context, the term "Attention DeficitDisorder (ADD)" includes the variant "AttentionDeficit Hyperactivity Disorder (ADHD)."

5In order to qualify as an “other healthimpairment” under IDEA, a particular child'sAttention Deficit Disorder must be a chronic or acute

health problem that results in limited alertness andadversely affects educational performance. U.S.Department of Education Joint Policy Memorandum,September 16,1991, reprinted at 18 IDELR(Individuals with Disabilities Law Report) 116. Seealso 34 C.F.R. § 300.7 (defining “other healthimpairment). Where a child, because of ADD, hasheightened alertness to environmental stimuli and, asa result, limited alertness in regard to academic tasksand educational performance, the “limited alertness”criterion is met, and he or she may be eligible forIDEA services. See Response to Inquiry of Cohen, 20lDELR23 (U.S. Department of Education/Office ofSpecial Education Programs 5/13/93). See alsoMorgan v. Chris L., 927F. Supp. 267 (E.D. Tenn.1994), aff'd., 106 F.3d 401 (6th Cir. 1997) (childwith ADD protected by IDEA).

!!!As a general rule, most

students with disabilities willbe covered by the IDEA,

without reliance onthe Rehabilitation Act.

!!!


school on the basis of the nature of the disablingcondition. See, e.g., District 27 Community Sch.Bd. v. Board of Educ., 502 N.Y.S. 2d 325 (Sup.Queens 1986) (illegal segregation of HIVpositive student); Robertson v. Granite CityCom. Unit Sch. Dist., 684 F. Supp. 1002 (S.D.Ill. 1988) (illegal segregation of student withAIDS).

II. Entitlement

The nature of the entitlement to a FAPE isdefined by statutory and regulatory law and bycase law. Advocates must be familiar with boththe statutory and regulatory definitions of FAPE,as well as the substantive standard for FAPEarticulated by the Supreme Court in Board ofEduc. of the Hendrick Hudson Cent. Sch. Dist. v.Rowley, 458 U.S. 176 (1982).

A. The statutory and regulatory entitlement

Definitions of the three terms “free, appropriatepublic education (FAPE)”, “special education”,and “related services’, construed together, des-cribe the core of the statutory entitlement underthe IDEA. A fourth term, “transition services”,added to the statute by amendment in 1990,rounds out the services to which an adolescentwith a qualifying disability is entitled.

The IDEA provides that a “free, appropriatepublic education (FAPE)” means “special educa-tion and related services that (A) have been pro-vided at public expense. . .; (B) meet thestandards of the state educational agency; (C)include an appropriate preschool, elementary, orsecondary school education in the State involv-ed; and (D) are provided in conformity with theindividualized education program. . . “ 20U.S.C.§ 1401(8); 34 C.F.R. § 300.8 (1997). Theregulations implementing § 504 also entitledcovered students to a “free appropriate publiceducation.” See 34 C.F.R. § 104.33(a). Forpurposes of § 504, “free appropriate publiceducation” means the provision of regular orspecial education and related aids and services

that are designed to meet the needs of theindividual student as well as the needs ofstudents without disabilities are met. 34 C.F.R. §104.33(b).

The IDEA statute and regulations further definethe terms “special education” and “related ser-vices”. “Special education” means “speciallydesigned instruction, at no cost to parents orguardians, to meet the unique needs of a childwith a disability. . .” 20 U.S.C. § 1401(25); 34C.F.R. § 300.17 (1997). The term “related ser-vices” means “transportation, and such develop-mental, corrective, and other supported services .. . as may be required to assist a child with a dis-ability to benefit from special education. . .” SeeIrving Independent Sch. Dist. v. Tatro, 468 U.S.833 (1984).6

Further, the term “related services” is broadlydefined to include, but is not limited to: speechpathology and audiology, psychologicalservices, physical and occupational therapy,recreation, including therapeutic recreation,early identification and assessment of disabilitiesin children, counseling services, includingrehabilitation counseling, orientation andmobility training, and medical services fordiagnostic or evaluation purposes. The term alsoincludes school health services, social workservices in schools, and parent counseling andtraining. 20 U.S.C. § 1401 (22); 34 C.F.R. §300.16 (1997).

Section 300.16(b) of the Code of Federal Regu-lations as codified in 1997, provides definitionsof specific related services listed in §300.16(a)’s general definition of “relatedservices”. Of particular note to the advocate for

6For an explanation of the distinction be-tween a prohibited “medical service,” for purposesother than diagnosis and evaluation, and apermissible “school health services,” see IrvingIndependent Sch. Dist. v. Tatro, 468 U.S. 883 (1984)(clean intermittent catheterization of a childappropriately characterized as a school healthservice, rather than as a medical service).


children with disabilities who are enmeshed inthe delinquency system are “counselingservices”, defined in § 300.16(b)(2); “medicalservices”, defined in § 300.16(b)(4);“occupational therapy”, defined in § 300.16(b)(5); “parent counseling and training”, definedin § 300.16(b)(6); “physical therapy”, defined in§ 300.16(b)(7); “psychological services”,defined in § 300.16(b)(8); “recreation”, definedin § 300.16(b)(9); “rehabilitation counselingservices”, defined in § 300.16(b)(10); “socialwork services in schools”, defined in § 300.16(b) (12); “speech pathology”, defined in §300.16(b) (13); and “transportation”, defined in§ 300.16(b) (14).

A requirement added to IDEA in 1990 andamended in 1997, designed to assist adolescentsin moving into the “post-school” world,provides that IEPs must include “transitionservices.” Transition services focusing on thestudent’s course of study must be included in theIEP beginning at age fourteen. 20 U.S.C. §1414(d)(1) (A)(v)(ii). The full array of transitionservices must be in place by no later than agesixteen, and younger if appropriate. Id.

The term “transition services” means acoordinated set of activities for a student,designed within an outcome-oriented process,which pro-motes movement from school to post-school activities, including post-secondaryeducation, vocational training, integrated em-ployment (including supported employment),continuing and adult education, adult. services,independent living, or community participation.The coordinated set of activities shall be basedupon the individual student's needs, taking intoaccount the student's preferences and interests,and shall include instruction, community exper-iences, the development of employment andother post-school adult living objectives, and,when appropriate, acquisition of daily livingskills and functional vocational evaluation. 20U.S.C. § 1401(30); see 34 C.F.R. § 300.18(a),(b) (1997).

An advocate can obtain abroad array of mean-ingful services for a child based upon thestatutory and regulatory definitions of “relatedservices” and “transition services”. Moreover, inlisting categorical examples of related services,transition services, and other entit1ements (aswell as for various other requirements),theIDEA's implementing regulations' listings areexplicitly not exclusive.7

The use of the word “‘include’ means that theitems named are not all of the possible items thatare covered, whether like or unlike the onesnamed.” 34 C.F.R. § 300.9 (1997). Hence, byapplying the definitions of “related services” and“transition services”, an advocate can argue thatthe provision of a particular service isappropriate and must appear in the child's IEPeven if the service sought is not listed explicitlyin the IDEA's implementing regulations.8

7See, e.g., Note to 34 C.F.R. § 3.00.16(1997) that states, in relevant part, that “[t]he list ofrelated services is not exhaustive and may mc1udeother. deve1opmenta1, corrective, or supportiveservices (such as artistic and cultural programs, andart, music, and dance therapy), if they are required toassist a, child with a disability to benefit from specia1education.” Similarly, the note to 34 C.F.R. § 300.18(defining “transition services) states that [t]he list ofactivities in [the regulation] is not intended to beexhaustive.”

8In other words, the fact that the servicesought does not appear as a related service or atransition services in a listing in the regulations doesnot preclude that service from being defined as eithera related service or as a transition service. Section

!!!An advocate can obtain a broad array

of meaningful services for a childbased upon the statutory and

regulatory definitions of “relatedservices” and “transition services.”

!!!


B. The Supreme Court's definition of (FAPE)

In Board of Educ. of the Hendrick Hudson Cent.Sch. Dist. v. Rowley, 458 U.S. 176 (1982), theSupreme Court provided its interpretation ofwhat constitutes a free, appropriate publiceducation (FAPE) for purposes of IDEA. InRowley, the parents argued that their child Amy,who was deaf, required instruction by a qualifiedsign-language interpreter in all of her academicclasses in order to maximize her academicpotential. The school argued that Amy did notrequire a full-time sign language interpreterbecause she was achieving passing marks withthe assistance of a hearing aid, one hour oftutorial assistance, and speech therapy. TheDistrict Court found that while Amy was“advancing easily from grade to grade” in herregular education classes without an interpreter,she “understands considerably less of what goeson in class than she could if she were not deaf,”and, consequently, was not performing up to herfullest capability. Id. at 185. This disparitybetween her achievement and her potential ledthe District Court, and the Circuit Court, toagree with the parents that the school had deniedAmy a FAPE. Id. at 186.

The U.S. Supreme Court reversed, holding thatthe IDEA does not impose an obligation onschool systems to develop educational programsdesigned to maximize the potential of studentswith disabilities. Id. at 200. Instead of creating afederal substantive standard for specialeducation programming, the Court held that theIDEA is largely a procedural statute and thatcompliance with the Act’s procedures willgenerally yield an appropriate substantive result.In the words of the Court:

When the elaborate and highly specificprocedural safeguards . . . are contrastedwith the general and somewhatimprecise substantive admonitions

contained in the Act, we think that theimportance Congress attached to theseprocedural safeguards can not be gain-said. It seems to us no exaggeration tosay that Congress placed every bit asmuch emphasis upon compliance withprocedures giving parents and guardiansa large measure of participation at everystage of the administrative process . . .as it did upon the measurement of theresulting IEP against a substantivestandard. We think that . . . adequatecompliance with the proceduresprescribed would in most cases assuremuch if not all of what Congress wishedin the way of substantive content in anIEP.

Id. at 205-206. Consequently, the Courtarticulated a two-pronged test for determining ifwhether a school has provided FAPE: “First, hasthe State complied with the procedures set forthin the Act? And second, is the individualizededucational program developed through theAct’s procedures reasonable calculated to enablethe child to receive educational benefits?” Id. at206-207.9

Courts have not been uniform in their

300.9 of the C.F.R. defines “include” in a mannerthat negates a school district representative fromarguing “expresio unius est exclusio alterius.”

9In assessing whether the IEP is “reasonablycalculated to enable the child to receive educationalbenefits” the Court noted that when a child with adis-ability is “being educated in the regularclassrooms of a public school system, theachievement of passing marks and advancement fromgrade to grade will be one important factor indetermining educational bene-fit.” Id. at 207 n.28.Advocates seeking to apply this standard shouldattend not only to whether a student is passing fromgrade to grade, but also, obviously, to whether thestudent is achieving curricular goals. A shorthandsystem for monitoring academic progress is to checkthe student’s scores on standardized achieve-menttests. All too often, children receive “social pro-motions” that, in effect, heighten the child’s feelingof being lost academically and hasten the day whenthe child stops attending regularly or simply dropsout of school.


application of either prong of the Rowleystandard. With regard to the test for proceduralsufficiency, courts have vacillated betweenruling that procedural failings alone render theresulting program invalid, to holding that somedegree of prejudice flowing from the proceduralviolation must also be established. One NinthCircuit case holds that the obligation to provideformal written notice of a proposed placement“should be enforced rigorously” under the firstprong of the Rowley test, and that a school’sfailure to provide such formal notice is “notmerely technical” but renders the school’sproposed program invalid. Union Sch. Dist. v.Smith, 15 F.3d 1519 (9th Cir. 1994) cert. denied,115 S.Ct. 428. But see, Max M. v Illinois StateBd. of Educ., 629 F. Supp. 1504, 1517-18 (N.D.Ill. 1986)(failure to provide written notice ofrights was not fatal where parents participated indeveloping educational program).

Yet another Ninth Circuit case holds that “pro-cedural flaws do not automatically require afinding of a denial of a FAPE,” but that such adenial occurs only when those flaws result in“loss of educational opportunity” or “seriouslyinfringe the parents’ opportunity to participate inthe IEP formulation process.” W.G. v. TargetRange, 960 F.2d 1479, 1484 (9th Cir. 1992)(fail-ure to include child’s parents and teacher indevelopment of IEP rendered IEP invalid). Seealso, Hiller v. Bd. of Educ. of Brunswick Cent.Sch. Dist., 743 F. Supp. 958,970 (N.D.N.Y.1990)(procedural failings did not result in denialof FAPE where parents were “thoroughly in-volved” in educational planning for child).

With regard to the second prong of the Rowleytest, the substantive appropriateness of the pro-gram, courts have generally given schooldistricts considerable latitude. In Lachman v.Board of Educ., 852 F.2d 290, 297 (7th Cir.1988)(cert. denied, 488 U.S. 925), the Courtrefused to order the school district to adopt ateaching method desired by the child’s parents,holding: “Rowley and its progeny leave nodoubt that parent, no matter how well-motivated,do not have a right under the EAHCA to compel

a school district to provide a specific program oremploy a specific methodology . . .”10 Accord,Straube v. Florida Union Free Sch. Dist., 801 F.Supp. 1164,1176 (S.D.N.Y. 1992) (IDEA doesnot impose obligation to “employ a specificmethodology” or “provide the ‘best’ availableeducation but rather ‘appropriate’ education”).

In cases, however, in which the evidenceestablishes that a student has made little progressover time in meeting the objectives contained inan individualized educational program, courtshave not hesitated to rule that student has beendenied FAPE. See Ojai Sch. Dist. v. Jackson, 4F.3d 1467 (9th Cir. 1992) (cert. denied, 115 S.Ct. 90 (failure to make any progress on IEPgoals for seven years was sufficient evidencethat the educational placement wasinappropriate.) In addition, if the school'sproposed placement, whatever its intrinsic value,is unable to meet the unique educational needsof a student with a disability, a court willconclude that the program is inappropriate. See,e.g., Smith, 15 F.3d at 1525 (placement in agroup setting was inappropriate for autistic childwhere child required full-time, one-to-oneinstruction in order to learn). Courts have alsofound a viola-tion of the right to FAPE where,for example, the school's proposed IEP andplacement provided for only four months' worthof progress in read-ing skills over an academicyear, Carter v. Florence County Sch. Dist. No.4,950 F. 2d 156 (4th Cir.1991), affirmed, 114 S.Ct. 361 (1993), and the school's proposal failedto provide for meaningful educational strategiesto address the behavioral manifestations of achild's emotional disturbance. Chris D. v.Montgomery Rd. Of Educ., 753 F. Supp. 922(M.D. Ala. 1990). Throughout, courts havestressed that “benefit” must be meaningful inorder to meet the Rowley standard. See, e.g.,Cordrey v. Euckert, 917 F.2d 1460,1473 (6thCir.1990), cert. denied, 111 S.Ct. 1391 (1991)(child must benefit meaning-fully within his or

10“EAHCA” stands for the Education of AllHandicapped Children Act, an earlier name of theIDEA.


her potential); Polk v. Susquehana IntermediateSch. Dist., 853 F.2d 171,184 (3rd Cir), cert.denied, 109 S.Ct. 838 (1988) (de minimis ortrivial benefit insufficient; whether benefit is deminimis must be gauged in relation to child'spotential); Hall v. Vance, 774 F.2d 629, 636 (4thCir. 1985) (“Congress did not intend that aschool system could discharge its duty. . . byproviding a program that produces someminimal academic advancement, no matter howtrivial”).

In addition, Rowley and the lower courtdecisions applying it must now be read in lightof 1997 amendments to the IDEA stressing thatthe right to a FAPE includes the right tomeaningful opportunities to learn the content ofthe general curriculum adopted for all students,and to make meaningful progress in thatcurriculum. The IDEA now explicitly requiresthat IEPs describe how the child's disabilityaffects participation and progress in the generalcurriculum, and contain goals and objectivesgeared towards enabling the child to do so;include special edu-cation, related services andsupports for school personnel that will allow thestudent to progress in the general educationcurriculum; and be reviewed periodically andrevised to address any lack of expected progressin the general curricu-lum. 20 U.S.C. §1414(d)(1)(A), (d)(4).11

Also relevant in this context might be two casesholding that parental or student hostility towardsa school's proposed placement might precludethe child's attaining sufficient educationalbenefit/FAPE from the placement. See Board ofEduc. of Community Consolidated Sch. Dist. No.

21 v. Illinois Rd. of Educ., 938 F. 2d 712 (7thCir. 1991); Greenbush Sch. Comm. v. Mr: andMrs. K., 25 IDELR 200 (D. Me. 1996) (holdingas well that the child's fear of the school inwhich it was proposed he be placed wouldprevent him from receiving educational benefitif the IEP were to be implemented there).

11The statement of Congressional findingsincluded in the IDEA Amendments of 1997 notesthat twenty-seven years after the special educationstatute was first passed, low expectations still plaguethe education of children with disabilities, and thathigh expectations, maximum possible access to thegeneral curriculum, and teaching that allows childrento meet the challenging expectations that have beenset for all students are critical. 20 U.S.C. §1400(c)(4), (5).

Chapter

Seven

The Special Education Process:

Investigating and Initiating the Special Education Case

Investigating a special education

matter is fundamentally the

same as investigating any case.

Counsel must develop a client-

centered strategy, interview

witnesses, amass documentary

evidence, conceptualize a theory

Written by of the case, and prepare for a

Joseph B. Tulman hearing and negotiations.

7-2 Chapter Seven: Investigating and Initiating the Special Education Case

I. An overview on investigation

Investigating a special education matter isfundamentally the same as investigating anycase. Counsel must develop a client-centeredstrategy, interview witnesses, amass documen-tary evidence, conceptualize a theory of the case,and prepare for a hearing and for negotiations.As discussed in Chapter 2 of this manual, thestrategies that counsel should develop for adelinquency client with special education needswill affect the child's status in both delinquencysystem and the special education system. Hence,counsel will coordinate the delinquency andspecial education legal theories, investigations,and actions.

When investigating a special education matter,counsel should obtain information concerningthe child's educational, developmental, andmedical history, as well as information regardingthe child's current adjustment to home, school,and community, Whether the child is currentlyreceiving, or has received, services in school orfrom other public or private providers might beparticularly significant.

As in a delinquency investigation, counselinvestigating a special education case should “goto the scene of the crime”. The educationalneglect that one uncovers at schools the childhas attended may be shocking; counsel mustcollect this essential information and, indeed, allin-formation about the child's educationalexperience. Commonly, a teenager who isincarcerated or, faces incarceration, stopped

making academic progress at some point . ..between kindergarten and third grade. One mayfind, for example, that a detained sixteen yearold is functionally illiterate and knows no mathbeyond basic addition and subtraction.Commonly, a child’s seriously disruptivebehavior in school does not begin -- if the childever became disruptive in school -- until juniorhigh school (or middle school), years after thechild's actual academic progress was arrested.Similarly, truant behavior and drug abuse by thechild typically develop in junior high school,years after the child began to the experiencedevastating school failure.1

Other common discoveries pertaining todetained children are that they have changedschools a number of times and have facedfrequent suspensions or even expulsions fromschool. One also finds that these children havefailed (i.e., repeated) one or more grades inschool. All of these factors are significant to thespecial education case.

A. Preparing a chart and a time line

To organize and master pertinent information ina special education case, counsel should preparea chart to display the child's educational history.The chart should list across the side of a pageeach year that the child was (or should have

1Discussion of truant behavior and drugabuse by the child does not suggest that counselwould disclose, either in a delinquency matter or in aspecial education case, any behavior that is not al-ready evident. Often, however, delinquency prosecu-tors, school officials, and others have evidence oftruancy and drug abuse by the child; in those in-stances, counsel can demonstrate that these problemsdeveloped years after school personnel should haveidentified the child as having a disability and, by thesame token, years after school personnel should haveaddressed the child's problems. The causalconnection with truancy is readily apparent. Thecausal connec-tion between disability, school failure,and eventual drug abuse might be, in a proper case, asubject to develop through the testimony of an expertwitness.

!!!The educational neglect that oneuncovers at the schools the childhas attended may be shocking;

counsel must collect thisessential information and, indeed,all information about the child’s

educational experience.!!!


been) in pre-school and in school. Across the topof the page, the chart should contain as manycategories/columns as appear relevant. (Seesample chart in illustration 7-1 on pages 7-5 and7-6). Typical categories include, but are by nomeans limited to, the following: year in school;school attended; grades on report cards; behav-ior/con-duct reported; attendance reported;repeated grade?; teacher comments (written andspoken); scores on standard achievement tests;school disciplinary actions (including suspen-sions or expulsions); parent’s contact/ conversa-tions with teacher or school personnel; parent’srequests for help or inquiries about child’s (lackof) progress; parent’s explicit request (oral or inwriting) for special education evaluation; specialeducation evaluations requested by someoneother than the parent (e.g., teacher); whetherchild is special education identified; specialeducation evaluations completed?; specialeducation re-evaluation done?; IndividualizedEducation Program (IEP) completed?; and IEPimplementation (with separate columns forvarious components of the IEP, e.g., a columnfor each related service).

Counsel might also, based on the chart and theinvestigation generally, develop a time line orchronology to delineate the child's develop-mental, educational, and behavioral history. Atime line, like a chart, clarifies the case forcounsel and for prospective witnesses. Inaddition, counsel might use the chart and thetime line as demonstrative evidence or as anillustrative aide in presenting the specialeducation case to a hearing officer or, indeed, inadvocating for the child at a delinquency dis-position (or adult sentencing), detention hearing,or probation revocation hearing.

B. Engaging an expert witness or consultant

Counsel should consider engaging an expertwho will examine evaluations of the child,review the child’s school history, interview thechild, and help to identify, survey, and evaluatepossible placements and services for the child.2

As in many areas of legal practice, lawyerspracticing special education law learn the sub-stance underneath the law by engaging expertswho can impart their expertise generally and sortthrough the facts of a case particularly. Specialeducation experts often are clinical or educa-tional psychologists; people with advanceddegrees and experience in special educationteaching or evaluation also are likely candidatesto be expert consultants and witnesses.

C. Interviews: People to see and questions to ask

In any investigation of special education issues,counsel must interview a variety of people --school personnel and others -- who are involvedwith the student. The most important interviewstypically are with the child and the parent.3 The

2Costs incurred in hiring an expert arecompensable from the school system if the parentprevails in a special education matter.

3Some degree of investigation regarding theeducational status of the delinquency client iswarranted as part of any delinquency investigation.Indeed, issues as common as school attendance andgeneral academic performance are relevant to thedelinquency case. Hence, counsel should interviewthe child and the parent(s) regarding the child'seduca-tional history in all cases. Assuming that thechild and the parent sign a general release form,counsel can and should obtain educational records, aswell.

!!!A time line, like a chart, clarifies thecase for counsel and for prospective

witnesses.!!!


interview with the child or with the parent in-cludes many of the same elements as a rudi-mentary clinical interview.4 Counsel shouldfollow basic rules of interviewing: orient theinterviewee so that the interviewee presents thehistory of the problem from the beginning; assistthe interviewee to present the history completelyand in order by asking open-ended questions andby providing verbal prompting (includingprompts that keep the narrative in chronologicalorder); provide active listening responses asneeded to encourage the interviewee;5 do notinterrupt the interviewee to explore particularissues; after the interviewee relates the story, goback to explore particular points and facts inorder to develop information relevant to legaltheories and possible legal arguments.

In obtaining the child’s medical history, counselshould determine whether the child ever sustain-ed any significant head trauma or experiencedperiods of unconsciousness. Similarly, in

exploring the child’s developmental history,counsel should ascertain whether the child wasexposed in utero to alcohol or drugs. Obviously,counsel should solicit information about aca-demic problems or deficiencies, including whatthe problems and deficiencies are, when theproblems began or when the deficiencies becameapparent, and whit, if anything, school systempersonnel have done to address the child’s aca-demic problems or deficiencies. Investigationoften reveals, as noted above, that the child washaving academic problems which school person-nel did not recognize or address long before anybehavioral problems were evident. In theirefforts to relate a child’s educational history, thechild and the parent(s) may have difficulty pro-viding a complete and accurate sequence ofevents; nevertheless, counsel must piecetogether – through interviews anddocumentation – a clear chronology of thechild’s educational experience.

In compiling the chronology and painting a clearpicture of the child’s educational history,counsel must remember to include the child’sstrengths and successes. What is the child goodat? What interests the child? Does the childenjoy various forms of self-expression, likesinging and draw-ing? An advocate who missesor minimizes these components is adopting –perhaps without consciously realizing it – thecommon, but mistaken perception thatdelinquency clients are relatively untalented orare academically incapable.

Interviews with individuals involved with thefamily and child are also essential to a completeinvestigation. Counsel should interview thechild’s current teacher and any service providerswithin the school setting, including any voca-tional services personnel, and perhaps otherswho have had contact with the child. Counsel iswell-advised to speak with the child’s teacherand other potential witnesses face-to-face in theschool setting. In-person interviews provide

Before engaging in any special education advocacy,however, counsel must discuss with the child thepossible benefits -- and drawbacks, if any -- inpursuing special education advocacy for the child.Counsel should approach the child's parent(s)regarding special education advocacy if, and only if,the child has authorized counsel to take that step. Seesection II of this chapter, infra.

4Asking questions in a way that gathersinformation chronologically can be helpful to theparent or child in answering questions.

5An active listening response reflects backto the speaker the substance as well as the emotionalcontent of the speaker’s statement.

!!!In obtaining the child’s medical history,counsel should determine whether the

child ever sustained any significanthead trauma or experienced periods

of unconsciousness.!!!


SCHOOLYEAR

SCHOOLATTENDED

REPORTCARDGRADES

STANDARDIZED TEST SCORES

REPORTEDCONDUCT ORBEHAVIOR

REPORTED ATTENDANCE

REPEATEDGRADE??

Illustration 7-1.


TEACHERCOMMENTS

DISCIPLINARYACTIONS

PARENT/SCHOOL CONTACT

PARENTINQUIRIES/HELPRE: CHILD'SLACK OFPROGRESS

REQUEST FORSPECIAL ED.EVALUATIONS

EVALUATIONCOMPLETED?

RE-EVALUATIONCOMPLETED?

Illustration 7-1, continued


more complete information; also counsel is morelikely to perceive through a face-to-faceinterview if a witness is likely to be recalcitrantat a subsequent hearing.6

Additionally, counsel should interview pro-fessionals and others who are involved with thechild through the juvenile justice system in orderto obtain any relevant information about thechild’s emotional and educational status.Finally, counsel must contact any professionalsoutside of the school system, as well ascommunity-based service providers, who areinvolved with the family. For instance, familymembers may receive counseling from a mentalhealth clinician or from a communityorganization represent-ative. These individualsmay not only be able to give a different view ofthe child than school personnel provides, butalso may be able to offer guidance about whathas or has not worked for the child.

D. Document to obtain

Special education cases rise or fall based ondocumentation. No special education invest-igation is complete until counsel garners moundsof relevant papers. In addition to maintaining allthe documents obtained from the school systemand other sources, counsel must be careful to

create a written record of contracts with theschool system through methodical corres-pondence. While counsel can not testify in aspecial education due process hearing,correspondence documenting counsel’s contactswith the school can be submitted as exhibits at ahearing. In a contest of credibility, a contempor-aneous letter from counsel to the school docu-menting the event in question can go a long wayin making the client’s case.

Counsel should always obtain the child’s schoolrecords at the outset of a delinquency case.Records can usually be obtained simply by pro-viding the school with a release executed by theparent and a cover letter requesting records. It ishelpful to include a description of the specificrecords sought. School administrators andclerical personnel may not keep all records in acentralized location, so counsel may need tosend the same release and letter to differentschools. To get the records as quickly as pos-sible, counsel should arrange to have the recordspicked up from the school (or schools). If pickupis not an option, however, schools will generallyprovide the records by mail.

A discussion of the legal basis for obtaining bothregular and special education records througheducational advocacy is provided in this manualin Chapter 11 on due process rights. Of course,in a delinquency case, counsel also has theoption of issuing a subpoena for records.7

A subpoena has the advantage of carrying the

6Some school system employees might fearretaliation from their employers if they testify to factsthat suggest that school system personnel failed toprovide a child with FAPE; school system employeesalso may become defensive in testifying about short-comings of the school system, sensing perhaps thatothers may judge that the witness personally failed toserve a child. As with criminal or delinquencyinvesti-gations, having an investigator or independentwitness accompanying counsel as an interviewallows counsel to produce impeachment testimonyagainst a witness whose story changes between thetime of the inter-view and the subsequent specialeducation due pro-cess hearing. For the samereasons, counsel also might wish to obtain writtenstatements from witnesses who work for the schoolsystem or receive payment from the school system.

7Counsel should not use the subpoenaprocess to produce documents that are not needed fora hearing in the delinquency case.

!!!Counsel should always obtain thechild’s school records at the outset

of a delinquency case.!!!


weight of the court’s authority and may result inrecords becoming available more quickly. Theuse of a subpoena, however, also alerts theschool to the existence of a juvenile proceedingagainst the child, a fact which may produceimmediate and undesirable consequences for thechild at school.

Other records such as medical records, employ-ment records, and court documents are alsonecessary. Medical records, including mentalhealth information, can be particularlyimportant. Unfortunately, hospitals and othermedical service providers are not always quickto cooperate with a request for records.Frequently, hospitals will not accept a releaseform executed by the child’s parent that wasprepared by some-one outside of the hospital;hospital personnel, in other words, may require– before any records will be provided – thatparent execute a release form developed by thehospital’s lawyers. In addition, personnel in thehospital records department may function soslowly that counsel must make arrangements togo to the hospital and obtain the recordspersonally. With hospitals, as with schools,counsel may wish to subpoena records ratherthan wait for voluntary compliance, with arequest that is accompanied by a release form.

Finally, in investigating a special education case,counsel must compile documents establishingthe client’s entitlement to the specific reliefdesired. Too often lawyers meticulouslydocument the school system's failings but fallshort of creating a written record setting forththe basis for the relief requested. If anindependent expert or treatment professionalwill participate in the hearing, counsel shouldobtain and dis-close the professional's resume.Similarly, if counsel is seeking a privateprogram for the client, a letter of acceptancefrom the program as well as a pro-gramdescription should be obtained and disclosed asevidence in the hearing.

II. The parent as client: Understanding theconsequences of joint representation

In a delinquency case the client is, quiteobviously, the child. In a special education case,however, the client generally is the parent.Federal law confers due process rights onparents, who act on behalf of their children. See,e.g., Tschanneral v.District of Columbia, 594 F.Supp. 407 (D.D.C.1984) (parent is authorized tobring action on child's behalf as next friend aswell as in own name). Persons eighteen years ofage or older can pursue special education rightsindependently, and, in some circumstances,children under the age of eighteen may haverights to pursue special education rights inde-pendent from their parents. See G.C. v. Coler,673 F. Supp. 1093 (S.D. Fla.1987) (handicappedchild had standing under the IDEA to bring suitagainst school for failing to provide specialeducation services at juvenile detention center);Edward B. v. Brunelle, 662 F. Supp. 1025(D.N.H. 1986) (handicapped students placed inresidential facilities pursuant to juvenile courtorders had standing to sue education departmentfor failure to provide FAPE); Mylo v. Board ofEduc. of Baltimore, 948 F.2d 1282 (4th Cir.1991), cert. denied, 507 V.S. 934 (1993) (trialcourt erred in dismissing child's special edu-cation action based on misconduct of parent).8These cases, however, are the exception to therule that the parent is the party with the capacityto sue for special education rights.

The term “parent”, as defined in the regulationsimplementing the Individuals with DisabilitiesEducation Act, is a broad term that includes anyperson who is “acting as a parent of a child”. 34

8For a child who is at least minimallycapable intellectually, the question of competency toengage counsel and to assert or to waive legal rightsindependently generally does not arise in thedelinquency context. Courts regularly accept waiversfrom children in delinquency cases of rights to trial,to counsel, to Miranda protections, etc. Ironically,the law appears to restrict children from actingprimarily in circumstances in which children seek toassert rights. Protecting children from being boundby contract is an exception, but it is an exception thatis rarely litigated and of questionable utility.


C.F.R. § 300.13 (1997).9 (The state cannot,however, act as the child's parent under the act.Id.) Many children who are incarcerated orotherwise enmeshed in the delinquency systemare not living with a parent or do not have aparent who is caring or providing for them.Counsel should ask the client to identify theperson who is acting as the child's parent.Counsel then can be engaged as special edu-cation representation on behalf of that“parent”.10 If the parent is missing or cannot beidentified, or if the child is a ward of the state,the public agency11 must assign a surrogate

parent for the child, 20 U.S.C. § 1415 (b)(2), andthe agency must select a surrogate parent who isindependent of the state and who isknowledgeable and skillful enough to representthe child adequately. 34 C.F.R. § 300.51©)(2)(1997).

Given the role of the parent in special educationproceedings, counsel must obtain the delinquen-cy client’s agreement both to pursue the specialeducation matter and to represent also the child’sparent before counsel undertakes a full-scaleinvestigation of special education issues.Counsel also must explain the consequences ofjoint representation first to the child and then,with the child’s permission to proceed, to theparent.12 Specifically, counsel should explainthat, as the case progresses, conflicts may de-velop between the parent and the child. Forexample, the child and parent may not agree onwhich school the child should attend; what ser-vices are appropriate for the child (and perhapsfor the family); or the amount of time the childneeds to be in special education classes. A moreprofound disagreement between a child and aparent may develop regarding whether the childneeds residential treatment. Usually, when con-flicts arise, the parent and child are able toresolve the conflict either by themselves or withthe assistance of counsel. Only rarely will a con-flict arise that a parent and child cannot resolve.In the event that a parent and child can not agreeon the purpose or a particular goal of the repre-

9Proposed amendments to the Individualswith Disabilities Education Act regulations publishedon October 22, 1997 would give states the option ofrecognizing foster parents as “parents” for the pur-poses of pursuing IDEA rights if (1) the naturalparents’ authority to make educational decisions forthe child has been terminated under State law; (2) thefoster parent has an ongoing, long-term parental re-lationship with the child; (3) the foster parent is will-ing to participate in educational decision making; and(4) the foster parent has no interest that would con-flict with the interests of the child. See 62 Fed. Reg.55071 (October 22, 1997) (proposed new 34 C.F.R. §300.19(b). Final regulations are expected to be prom-ulgated in 1998.

10Counsel should check applicable rules ofprofessional conduct to determine whether counselcan approach that “parent” to suggest the advantagesof pursuing special education services on behalf ofthe child. One presumes, however, that if the originalclient (i.e., the child) asks the attorney to offerspecial education representation to the parent, theattorney is acting consistently with ethical rules inthen “solicit-ing” the parent.

11Ordinarily, one interprets the term “publicagency” in the context of the IDEA as referring toschool system personnel. See 34 C.F.R. § 300.14(1997). If, however, a department of youth servicesor “any other political subdivision of the state. . . [is]responsible for providing education to children withdisabilities”, id., then that entity also would beresponsible for providing special education servicesand complying with all IDEA requirements. 34C.F.R. § 300.2 (1997). This responsibility carried by

the youth services agency would include theobligation to assign a surrogate parent.

12See note 9, supra.

!!!While counsel can not testify in a

special education due process hearing,correspondence documenting counsel’s

contacts with the school can besubmitted as exhibits at a hearing.

!!!


sentation, counsel will be obligated to withdrawfrom the special education case.13 Thisobligation to withdraw, based upon a conflictthat can not be resolved in the special educationcase, con-tinues even after the delinquency caseis over.

Having explained the potential limitations ofcounsel’s role to both the parent and the child,counsel can execute a retainer agreement withthe parent (or with the parent and with the child)to pursue special education advocacy on thechild’s behalf. Counsel should research the ap-plicable rules of professional conduct beforedeciding how to represent the parent and thechild and, accordingly, how to fashion a specialeducation retainer agreement. Essentially,counsel has four options in providing specialeducation representation for a delinquencyclient. The attorney can offer any of theseoptions to the child and to the parent, or theattorney can decide only to offer one option. Thefour options are as follows: (1) jointrepresentation of the parent and the child in thespecial education matter; (2) representation inthe special education matter solely for theparent; and (3) representation in the specialeducation matter, with the parent’s permission,based solely upon the child’s making decisionswith counsel; (4) representation in the specialeducation matter solely for the child if the childis eighteen or over or, for a child under the ageof eighteen, if counsel is prepared todemonstrate other grounds justifying therepresentation.14

III. Developing a theory of the case

A. Developing a special education theory

In pursuing special education rights, counselmust assess the child’s educational history andthen develop a working theory of the case. Forchildren who have never been in specialeducation, counsel’s inquiry will focus onwhether special education services appearwarranted. For children who are currently inspecial education, counsel's inquiry will focuson whether the special education program isappropriate to meet the child's needs.

1. Assessing information and developing strategies for children whoare not already in special education

Regarding a child previously unidentified as tospecial education eligibility and needs, counselshould look for indicia of a disability that ad-versely affects the child's ability to learn.Basically, counsel should explore whether thechild has a record of poor school performancethat is not attributable to factors other than thepresence of a disability.15 Thus, by looking at thechild’s grades, scores on standardized testing,and the other matters described above in thesection on investigation, counsel shouldascertain what the child’s school performancehas been historically poor and whether the childis signif-icantly behind his peers in basicacademic competencies.

Several signs may indicate the presence of a dis-

13Counsel should review the jurisdiction’sethical provisions regarding the proper handling ofconflicts of interest based upon representation of twoclients.

14For a child who is a ward of the State, 34C.F.R. § 300.51(a)(3)(1997), or whose parent can notbe identified or located, 34 C.F.R. § 300.51(a)(1),(2), counsel can seek on behalf of the childappointment of a surrogate parent under 34 C.F.R. §300.514(b).

15As suggested above, truant behavior isalone insufficient to justify a conclusion that thechild's poor school performance is not a result of adisability. A child may have a disability that led topoor school performance and that ultimatelycontributed to the truancy. In other words, adisability may have trig-gered the truancy. Similarly,a child who chronically disrupts in school, but who isnot seriously emotional-ly disturbed, may be hidingunwittingly a learning dis-ability or other disability.


ability. If the child has always had poor gradesor has been retained, or if standardized testingreveals that the child is significantly deficientcompared to peers, the child may have a specificlearning disability or possibly mentalretardation. If counsel observes that the child isunable to understand or respond to questions, orif counsel learns through interviewing that thechild has difficulty understanding or respondingto ques-tions in school, counsel might concludetenta-tively that the child has a specific learningdis-ability or a speech or language impairment.If the child's school work evinces difficultywriting or copying, the child may have a visualimpairment or a specific learning disability. Ifthe child is easily distracted and inattentive, thechild may have attention deficit disorder. Ahistory of head trauma may suggest neurologicaldamage; some children who suffer thecontinuing effects of head trauma present asbeing unable to focus their gaze or as havingawkward gaits or hand movements. Consistentlyinappropriate be-haviors, a history of disciplineproblems in school, an inability to get alongwith others, explosive out-bursts, depression,low self-esteem and isolation are all indicatorsof serious emotional disturbance.

If the existence of a disability appears possiblebased on a review of the information obtainedfrom interviews and documents, counsel shouldhelp the parent refer the child to the local schoolfor a special education evaluation.16 Counsel and

the parent should make clear to school personnelthe specific areas of concern and identify thekinds of evaluations requested. Generallyspeaking, all requests made to school personnelby the parent and by counsel should be in writ-ing. Counsel should check local rules and caselaw to determine the amount of time the schoolhas in which to complete the evaluation process.

2. Assessing information anddeveloping strategies for children whoare already in special education

Representing a child who has already beenidentified as needing special education, counselmust determine whether the current educationalpro-gram and placement are appropriate; if not,counsel must develop a strategy to obtain anappropriate educational program and placement.Developing such a strategy requires a multi-vari-able inquiry that is, by definition, individualized.Hence, no single strategy exists. Counsel shouldorganize a strategy by considering the three dis-crete steps: (1) evaluation; (2) programming;and (3) placement. Within each step there areprocedural and substantive questions.Consequently, counsel can determine whether, ateach step, school personnel can meet theirprocedural and substantive burdens.

With respect to evaluations, counsel should col-lect the initial and subsequent evaluations thatschool personnel have performed, as well as anyevaluations performed by outside professionals.The school should have completed at least intel-ligence and achievement testing, as well as anoverall socio-educational history of the child.Regarding a child who exhibits emotional andbehavioral difficulties, school personnel willlikely complete a clinical psychological eval-uation that includes projective personality test-ing. In addition, local rules may require or cir-cumstances may dictate that school personnelperform additional evaluations, such as speech-language evaluation or a physical exam. Forstudents age sixteen and above (and, if

16If the child is incarcerated on in someother out-of-home placement, the referral forevaluation likely will not go to the neighborhoodschool. Counsel should become familiar with theproper process and location for initiating a request for evaluation.

!!!Generally speaking, all requestsmade to school personnel by theparent and by counsel should be

in writing.!!!


indicated, for students age fourteen and fifteen,as well), a vocational assessment completed bythe school should also be included.

After gathering the evaluations, counsel mustassess whether the evaluations are appropriateand whether further testing is necessary. Counselmay ask the following questions regarding pro-cedural compliance by school system personnel: •Was the initial testing completed in a timelymanner? •Is the student overdue for a three year re-eval-uation? Did the school use several tests to evalu-ate the student or only one? •Was the parent a member of the team thatdecided what kids of tests and assessmentswould be done as part of the evaluation or re-evaluation? •Was the testing administered by an individualqualified to conduct the testing? •Was the testing administered in the student’snative language? •Did the parent consent to the testing? •Did school system personnel provide theparent an opportunity for the school personnel toexplain the testing results? •Did school system personnel advise the parentregarding due process rights?

In addition, counsel may ask the following ques-tions regarding substantive compliance byschool system personnel: •Did the school system evaluate the student forall disabilities the student might reasonablysuspected to have, or only one (e.g., evaluatedfor mental retardation but not specific learningdisabilities; evaluated for specific learning dis-abilities, but no attention deficit disorder)? •Did the school system evaluate the student inall areas related to each suspected disability? •Did any of the evaluations indicate that furtherevaluations are necessary? If so, were those fur-ther evaluations done? •Are the evaluations internally consistent? •Do the evaluation tend to support or refute theexistence of a single disability or multiple areasof need? •Did the evaluations produce information about

the child’s unique instructional needs, or didthey focus only on determining the child’sdisability? •Do the evaluations provide sufficient informa-tion to design the educational services and sup-ports the child needs to succeed in the generalcurriculum, and meet the academic expectationsset for all students? •If the child had behavior that impedeslearning, did the evaluation include a functionalbehavior assessment, or other assessment thatwill enable school personnel to develop positivestrategies and supports for addressing thebehavior?

After reviewing the evaluations and the eval-uation process, counsel should analyze IEP’sprepared for the child since the child was firstidentified as eligible for special education. Oneshould organize the IEP’s chronologically alongwith any other progress reports, deficiencynotices, or truancy and disciplinary records.Counsel should determine whether the docu-ments reveal that, for each year, school person-nel complied with procedural requirementsestablished by regulation. For example, counselmay ask the following questions: •Did the parent or surrogate parent participatein the meeting to develop the IEP? •Did the necessary school personnel participatein the IEP meeting? •Does the IEP reflect the child’s current streng-ths and weaknesses? •Are there objective criteria to measure thestudent’s progress? •Does the IEP justify the extent, if any, towhich the child will not be educated with regulareducation peers? •Does the IEP justify the extent, if any, towhich the child will not participate in thegeneral curriculum? •For IEPs in effect on or after July 1, 1998,does the IEP include a statement of the supportsthat will be provided to the child’s teachers toenable the child to reach goals, learn the generalcurriculum, and be educated with regular educa-tion peers to the maximum extent appropriate?


•For IEPs in effect on or after July 1, 1998,does the IEP describe how the child’s parentswill be regularly informed of his or herprogress? •Were the child’s IEPs and progress reviewedat least annually? •Were IEPs reviewed during the course of theschool year and modified as necessary whenthere were indications that the child was havingdifficulty in school? •Was a current IEP in place during all periodsfor which the child was identified as needingspecial education and related services?

Again, investigating the child’s records for eachyear, counsel should determine whether the childhas been making progress by answering thefollowing questions: •Are the IEP goals the same, year in and yearout? •Does the annual testing reveal that the childhas failed to make progress moving from gradeto grade? •Do progress reports and student work indicatethat the child is not mastering the competenciestaught in the general curriculum? •Do the reports demonstrate persistentproblems, despite the requirement that servicesbe provided to address those problems? •Do the IEPs include services, goals and objec-tives designed to address all areas of need, inclu-ding emotional, social and behavioral needs?

The final, and perhaps most important, issue isplacement. Documents collected by counsel

should include the initial notice and the noticesof continuing special education placement.Regarding placement, counsel may ask thefollowing questions regarding compliance byschool personnel with procedures: •Does the notice include all the necessary pro-cedural information regarding the proposedplacement and the basis of the school’sdecision? •Does the placement notice advise the parentsof their rights? •Is the placement notice timely?

Counsel may ask the following questions regard-ing substantive compliance by school personnelwith placement requirements: •Can the teachers, administrators, and serviceproviders at the placement implement the child’sIEP? •Are all the necessary related services inplace?17

•Does the school’s classroom size (student:teacher ratio) and the teacher’s qualificationsconform to the school system’s ownrequirements? •Is the educational program close to or distantfrom the child’s home? •Has the school made a meaningful effort to in-clude the child as much as possible with non-dis-abled peers, including through the provisionof support services for the child and teacher, andany necessary modification of the content of thecurriculum or the method by which it isdelivered?

17For example, if a child’s IEP requires indi-vidual psychological counseling two times a week,but the school psychologist is scheduled to be at thedesignated placement only once each week, theplace-ment will not be appropriate.

!!!If the child has always had poor gradesor has been retained, or if standardized

testing reveals that the child issignificantly deficient compared topeers, the child may have a specific

learning disability or possiblymental retardation.

!!!

!!!Even after counsel has interviewed allof the relevant people, some questions

will remain unanswered.!!!


These questions and other questions generatedby counsel, the parent and child, and any expertengaged by the parent (with or by counsel), willlead counsel to a conclusion as to the appropri-ateness of a program and a specific placement.Counsel will not be able to answer all of thesequestions simply by reviewing documents. Evenafter counsel has interviewed all of the relevantpeople, some questions will remain unanswered.The objective, however, is to generate as muchinformation as possible in order to assist theclient in reaching an informed decisionregarding what services, program, andplacement are appropriate for the child.

B. Developing a special education theory applicable to the delinquency case: A remainder of the advantages in undertaking special education advocacy clients

As suggested throughout this chapter, counselshould explore, as part of the investigation inevery delinquency case, whether the client hasspecial education needs. Indeed, identifying thatthe client is eligible for special education andhas not received appropriate services can havebeneficial effects in the delinquency case. Often,upon determining that a client is eligible forspecial education, counsel next will discover thatthe school system either has not developed orhas not implemented an IEP. In practically everycase, such a discovery is useful. If, for example,an IEP mandates group and individualcounseling as related services, counsel’ssecuring those services for the child mightprovide sufficient justification for a delinquencyjudge to decide that the child is not dangerousand the judge, therefore, can release the childfrom pre-trial detention. Furthermore, a promiseby counsel to advocate for special educationservices may be sufficient, by itself, in amarginal case to convince a judge to releaserather than to detain a child prior to the trial.Similarly, in probation revocation situations inwhich the government is attempting todemonstrate that the child has failed to comply

with the conditions of probation (e.g., attendingschool), counsel often can show that the childhas not received the services required by theIEP; this showing, in effect, can shift the locusof blame from the child and thus help counselde-feat the revocation. If the school systemperson-nel have followed special educationprocedures – this is, a current IEP exists andschool personnel are implementing it, counselstill can help the client by requesting that theschool personnel meet with the parent and thechild to revise the IEP to include appropriateservices or a new program that the child has notpreviously re-ceived. Such revisions mayinsulate the child from a possible detention orderor other poten-tially punitive and non-rehabilitative responses from the delinquencysystem. These examples illustrate the strategicadvantages available to an attorney who usesspecial education on behalf of a delinquencyclient.

Chapter

Eight

The Special Education Process: Evaluations

Understanding special

education evaluations is a

challenge that counsel must

tackle successfully in order to

provide competent special

education representation.

Written by

Mary G. Hynes

8-2 Chapter 8: Evaluations

!!!These evaluators are themselves

experts and usually provideinvaluable information about the

child and about the relevantdiagnostic instruments and

disability categories.!!!

Under the Individuals with Disabilities Act(IDEA), a “full and individual evaluation of thechild’s educational needs” must occur beforeplacing the child who is disabled in an educa-tional program and before providing services. 34C.F.R. §300.531 (1997).1 The Rehabilitation Actregulations (§504) contain the samerequirement. See 34 C.F.R. §104.35(a).

Understanding special education evaluations is achallenge that counsel must tackle successfullyin order to provide competent special educationrepresentation. Although an in-depth analysis ofdiagnostic criteria and test interpretation isbeyond the scope of this chapter, the materialthat follows contains an overview of some of thediagnoses and tests that commonly arise in thecontext of evaluating for special education pur-poses children who are involved in the delin-quency system. In addition to educating them-selves on matters of special education diagnosesand testing, advocates who are incorporatingspecial education advocacy into their delin-quency practice should seek out professionalswith expertise in the areas of special educationtesting to explain evaluation results in eachcase.2

Counsel also should discuss each evaluationwith the person who conducted it. Theseevaluators are themselves experts and usuallyprovide in-valuable information about the childand about the relevant diagnostic instrumentsand disability categories. Furthermore, theseevaluators likely will participate with the parent,the child, counsel, and the child’s teacher indeveloping the child’s IndividualizedEducational Program (IEP). Hence, counsel iswell-advised to under-stand the perspectives thatthese evaluators bring to the IEP, and counsel iswell-advised to de-velop constructiverelationships, whenever poss-ible, with theseevaluators. These evaluators are also potentialwitnesses, either for or against the child and theparent, if the special education case goes to ahearing. In an appropriate case, counsel maydecide to call an evaluator as a witness for thechild in a delinquency hearing, as well. Anevaluator could testify, for example, that a childcould not read or understand the Miranda warn-ings. An evaluator could testify at a dispositionhearing that, for example, a child’s prognosis forimproved behavior is good, assuming schoolpersonnel work in accordance with the IEP toinstitute a behavior management program.

Counsel’s learning to comprehend the intricaciesof special education testing is a necessary but, orcourse, not a sufficient capability by itself toelevate the practitioner to the status of compe-tency. Counsel must also be familiar with the

1In addition to the initial evaluation, thestudent must have a comprehensive re-evaluationevery three years, or more frequently if conditionswarrant reevaluation or if the parent or teacher re-quests it. 20 U.S.C. §1414(a)(2); 34 C.F.R. § 300.534(b)(1997). Schools must also reevaluate a childbefore determining that he or she is no longer in needof, or eligible for, special education and relatedservices. 20 U.S.C. §1414(c)(5). Under theRehabilitation Act regulations, a reevaluation isrequired before any sig-nificant change ineducational placement. 34 C.F.R. §104.35(a).

2Moreover, several good texts on psycho-logical testing are available; they provide brief de-scriptions of individual tests commonly used fordiag-nostic purposes. See, e.g., Anastasi,Psychological Testing, (MacMillan Publishing,N.Y.)(6th Ed. 1988); Sattler, Assessment of Children,(Jerome Sattler Pub., Cal.)(3rd Ed. 1988); and

Salvia/Ysseldyke, Assess-ment, (Houghton MifflinCo., Boston)(5th Ed. 1991).


manifold procedures established by regulationconcerning the proper administration and use oftest data. Failure to comply with these pro-cedures may invalidate the resulting IEP, andultimately, any proposed educational placement.A common goal of special education advocacy isto invalidate a program developed by or a place-ment proposed by school system personnel.Consequently, counsel might wish to challengethe evaluations in order to demonstrate deficien-cies in the development of the program and inthe designation of the placement.

Before turning to the diagnoses and tests thatcommonly arise in the context of special edu-cation evaluations for children involved in thedelinquency system, it is important tounderstand the multiple purposes of theseevaluations. Eval-uations and reevaluationsunder the Individuals with DisabilitiesEducation Act and the Rehabil-itation Actregulations are intended to determine theexistence, nature and scope of a child’s dis-ability, to provide insight into the educationalconsequences of the disability, AND to provideinformation about the kinds of services, supportsand instruction the child needs to address thoseconsequences and learn effectively. All toooften, however, a review of a child’s recordswill reveal years of evaluations andreevaluations that simply confirm the existenceof a disability, without producinginstructionally-relevant in-formation andrecommendations.

In order to address this pervasive problem,Congress in the IDEA Amendments of 1997made more explicit schools’ obligations to alignevaluations with students’ learning needs. Thestatute specifies that in conducting evaluations,schools must use “a variety of assessment toolsand strategies” to gather relevant information for“determining whether the child is a child with adisability and the content of the child’s individ-ualized educational program, including inform-ation related to enabling the child to be involvedin and progress in the general curriculum. . . “20 U.S.C. §1414(b)(2). Schools must employ

“assessment tools and strategies that providerelevant information that assists persons indeter-mining the educational needs of the child. ..” 20 U.S.C. §1414(b)(3)(D). Reevaluationsmust focus not only on whether the childcontinues to have a disability, but also onwhether current services need to be modified inorder to enable the child to attain IEP goals andlearn in the general curriculum. 20 U.S.C.§1414(c)(1)(B). Evaluations or reevaluationsthat do not meet all of these requirements shouldbe challenged as legally insufficient.

I. Understanding diagnosis and educationaltesting

To understand educational testing, counsel firstmust read the regulations that define the variouseducational disabilities; and counsel must be-come familiar with the elements (in the regula-tions) of each relevant disability. A briefdescrip-tion of all of the tests used by a localschool sys-tem should be available from thatschool system. Ensuring that evaluators andschool personnel diagnose the actual nature ofthe child’s disabl-ing condition and itseducational and instruction-al implications iscritical to developing an appro-priateeducational program. In the case of child-renwho are involved in the delinquency system, themost common forms of disability are: seriousemotional disturbance (SED); specific learningdisability (LD); and mental retardation (MR). Achild may also have a combination of disabili-ties, such as serious emotional disturbance and alearning disability, justifying a dual diagnosis ora multiply-handicapped diagnosis.

A. Serious Emotional Disturbance (SED)1. Diagnostic criteria for SED

The term “serious emotional disturbance” (SED)means a condition exhibiting one or more of thefollowing characteristics over a long period oftime and to a marked degree that adverselyaffects a child’s educational performance: (A) An inability to learn that cannot be


!!!People easily misconstrue the results

of psychological testing done fordelinquency system purposes.

!!!

explained by intellectual, sensory, or healthfactors;3

(B) An inability to build or maintain satisfact-ory interpersonal relationships with peers andteachers; (C) Inappropriate types of behavior or feelingsunder normal circumstances; (D) A general pervasive mood of unhappinessor depression; or (E) A tendency to develop physical symptomsor fears associated with personal or schoolproblems.

34 C.F.R. §300.7(a)(9)(I) (1997) (emphasisadded). The term does include schizophrenicchildren, but the term does not include “sociallymaladjusted” children (unless the child is alsoseriously emotionally disturbed). 34 C.F.R. §300.7(a)(9)(ii). Note that the diagnosis requiresthat the emotional difficulties persist over time.A single act, however offensive it may be, is notby itself a justification for an SED diagnosis.

School system personnel often designate child-ren with disabilities who are involved in thejuvenile justice system as SED, regardless ofwhether the child’s emotional issues are the sole,or even primary, source of the child’s learningdifficulties.4

Generally, the SED diagnosis is based on one ofthe mental disorders described in the Diagnosticand Statistical Manual of Mental Disorders (theDSM-IV).5

Familiarity with the specific criteria for diag-nosis is essential to understanding whether anSED diagnosis is warranted. Common bases foran SED coding among children in the juvenilejustice system are “disruptive behavior dis-orders” such as a “conduct disorder” or “opposi-tional defiant disorder.” Like the designation ofSED itself, each of these disorders requires thatthe negative behaviors must persist over time.

2. Educational testing for SED

In order to diagnose a child as seriously emo-tionally disturbed, school system personnel willadminister “projective” tests designed to assesscharacteristics of the student’s personality. Pro-jective tests generally involve presenting the stu-dent with a relatively unstructured task, permit-ting an infinite variety of answers. These testsare designed to assess the test taker’s entirepersonality, rather than individual traits, and aretouted as effective instruments for revealingunconscious or hidden aspects of personality.6

Attorneys should be cautious in reviewing pro-jective testing results. Data regarding thevalidity of projective testing are inconclusive.

Attorneys, generally speaking, should not allowschool system personnel to adopt projective test-ing done by evaluators from other agencies con-nected to the child’s delinquency case. The test-ing generated by mental health professionalsassociated in preparation for delinquency pro-ceedings is generally designed to assess danger-

3The State of New York requires that a childreceive a physical examination as a pre-condition ofan SED diagnosis in order to rule out any potentialphysical causes of emotional problems.

4Counsel likely will encounter the inverseproblem, as well. School and delinquency personnelwill resist applying the SED label to a child who isactually emotionally disturbed precisely because thechild has committed an offense.

5American Psychiatric Association, Diag-nostic and Statistical Manual of Mental Disorders,(4th ed. 1994). 6Anastasi, supra note 2.


ousness,7 competency,8 or some other issue pe-culiar to the delinquency process. This kind oftesting is not only irrelevant to whether the childhas an emotional condition that impairs thechild’s ability to learn, it is often highly prejudi-cial. People easily misconstrue the results ofpsychological testing done for delinquency sys-tem purposes. For example, if the delinquencysystem finds that the child is competent to standtrial, some observers might understand that thechild is not seriously emotionally disturbed. De-linquency system evaluators rarely understand,on the other hand, the legal and functional defin-itions of disabilities relevant to eligibility underthe IDEA. A person performing psychologicalevaluations for the delinquency system, forexample, may conclude, based on no relevantcriteria, that a child with a conduct disorder is –by virtue of that diagnosis – not eligible forspecial education services.9

Projective testing techniques include inkblot,thematic apperception tests, verbal techniques,and expressive techniques.10 The inkblot tech-nique, usually the Rorschach Inkblot Test, in-volves presenting the test taker with tenbilateral-ly symmetrical inkblots and asking the

test taker what each blot represents.11

Another frequently used testing technique is theThematic Apperception Test (TAT) or one of itsvariants, the Children’s Apperception Test(CAT) or the Roberts Appreciation Test forChildren. In these tests, the evaluator presents tothe test taker a series of cards with differentpictures, and the evaluator asks the test taker totell a story to fit the picture.12 Verbal techniquesinclude word association and sentence comple-tion. A commonly used test is the Rotter Incom-plete Sentence Test in which the test taker isask-ed to complete forty sentence stems toexpress their feelings.13 Expressive techniques,such as the House-Tree-Person and HumanFigure Draw-ing tests, involve measuringpersonality through an individual’s drawings offigures directed by the test.14

B. Specific Learning Disabled (LD)1. Diagnostic criteria for LD

The term “ ‘[s]pecific learning disability’ meansa disorder in one or more of the basic psycho-logical processes involved in understanding or inusing language, spoken or written, that mayman-ifest itself in an imperfect ability to listen,think, speak, read, write, spell, or to domathematical calculations.” 34 C.F.R.§300.7(a)(10) (1997). The term does not applyto children whose learn-ing problems areprimarily the result of another disability, such asmental retardation, nor does it apply to childrenwhose learning problems are primarily the resultof “environmental, cultural, or economicdisadvantage.” 34 C.F.R. §300.7(a) (10) (1997).

In addition, in order for a school to classify astudent as “learning disabled,” the school must

7“Dangerousness” suggests an inquiry intowhether the child is a danger to self or to the com-munity.

8“Competency” is an inquiry into whetherthe child can understand the charges and participatein the defense.

9See generally, Jerome G. Miller, Last OneOver the Wall: The Massachusetts Experiment inClosing Reform Schools, Ohio University Press 1991,pp. 229-39; Dr. Miller demonstrates that, rather thandiagnosing children based upon their actual needs,ex-perts who provide evaluations in the delinquencysys-tem generally speaking fashion their findings andre-commendations based upon the limited options –usually placement for presumptively “dangerous”youth in incarceration facilities – that are available inthe delinquency system.

10Anastasi, supra note 2 at 594-624.

11Anastasi, supra note 2 at 596.





!!!A child who is functioning

significantly below grade level,despite average intelligence, may

be learning disabled.!!!

find that the child is not achievingcommensurate with his age and ability “whenprovided with learning experiences appropriatefor the child’s age and ability levels” and thatthere is a “severe discrepancy betweenachievement and intellec-tual ability” in one ormore of seven basic areas related to oral andwritten expression, aural and readingcomprehension, and reading and math skills. 34C.F.R. §300.541(a) (1997)15

The term “severe discrepancy” is not defined byfederal regulation. Local regulations and caselaw, however, may provide guidance for deter-mining how significant a discrepancy must be inorder to qualify as “severs.” See Hiller v. Boardof Educ., 743 F. Supp. 958 (N.D.N.Y. 1990)(student’s achievement was not severely dis-crepant from his ability where IQ tests revealedstudent had average to above average intelli-gence, and achievement tests revealed studentwas functioning at or above grade level).16

2. Educational Testing for LD

Educational testing for learning disabilities in-

volves measurement of both intelligence andachievement. A child of average intelligencemay be expected to function on grade level inacademic work. A child who is functioning sig-nificantly below grade level, despite average in-telligence, may be learning disabled.

To measure intelligence for older children, eval-uators generally use the Wechsler IntelligenceScale for Children - III (WISC-III). This testmeasures intelligence on performance and verbalscales, and those two scales together comprisethe full-scale IQ. Both the performance and theverbal scales include subtests. The subtests forverbal performance are information, similarities,arithmetic, vocabulary, comprehension, and digitspan. The subtests for the performance scale in-clude picture completion, picture arrangement,block design, object assembly, coding, andmazes.17 A child whose scores reflect a signif-icant difference between verbal and performanceIQ scores, or between subtests scores, may havea learning disability.18

Although intelligence testing is generallyaccept-ed as reliable, advocates shouldrecognize that these tests have been criticized asracially biased for, in particular, underestimatingthe intelli-gence of minority test takers.19

Moreover, coun-sel for a special education clientshould be aware that a child may score poorlyon intelligence test-ing for other reasons. Forexample, a child may be affected by drug use atthe time of testing. A child may be inattentive

15The DSM-IV now recognizes fourseparate forms of learning disorders: readingdisorder, math disorder, disorder of writtenexpression, and learning disorder not otherwisespecified.

16The DSM-IV provides that “A variety ofstatistical approaches can be used to establish that adiscrepancy is significant. Substantially below isusual-ly defined as a discrepancy of more than twostandard deviations between achievement and IQ. SeeDSM-IV at 46.

17See Kaufamn, Intelligent Testing with theWISC III, (Wiley and Sons, N.Y.)(1994) for anexcellent description of the appropriate diagnosticuses of the WISC III.

18Anastasi, supra note 2 at 482 (fifteen ormore point difference is “clinically suspect”); but see,Sattler, supra note 2 (discrepancy in scores is not, initself, sufficient to support a diagnosis of learningdisability).

19As notes below, the regulations prohibitracially- and culturally-discriminatory tests. 34C.F.R. §300.530(b).


and unfocused at the time of testing based uponemotional issues (e.g., grief, post-traumaticstress, distress over condi-tions of incarceration).The person administering the testing to a childshould be aware of emo-tional issues and otherfactors that may distort the child’s ability toperform adequately on the test;20 counsel can notassume, however, that the test administrator hasexercised that kind of oversight, and, therefore,counsel should in-vestigate the circumstancessurrounding the test-ing and investigate also thechild’s frame of mind at the time of the testing.Counsel also should check for consistency ofintelligence test-ing results for a particular childover time. Con-sistent scores over time do notestablish neces-sarily that the testing hasproduced accurate re-sults. Inconsistent results,on the other hand, do suggest strongly that someor all of the testing has produced invalidresults.21

In addition to intelligence testing, achievementtesting is also required to diagnose a learningdisability. Achievement tests measure the gradelevel at which the child is functioning in avariety of basic academic areas, such as reading,writing, spelling, and math. Commonly-usedachievement tests include the Wide RangeAchievement Test (WRAT), the Kaufman Testof Educational Achievement (K-TEA) and theWoodcock Johnson Psychoeducational Battery.The WRAT is a quick and easily-administeredtest. It measures achievement in reading, spell-ing and math, but it does not test reading com-prehension or relatively complicated mathskills.22 The K-TEA is an untimed test designedto measure reading decoding and comprehen-sion, math application and computation, andspelling. Research suggests that the K-TES pro-

vides reliable and valid scores.23 One of the mostcomprehensive achievement tests is the Wood-cock-Johnson Psycho-Educational Batterywhich measures twenty-seven areas of cognitiveability, achievement and interest.24 Some schooladmin-istrators limit their use of this test to thesubtests measuring achievement, excluding thesubtests measuring ability and interest.

C. Mental Retardation (MR)1 Diagnostic criteria for MR

The term “ ‘[m]ental retardation’ means signifi-cantly subaverage general intellectual function-ing existing concurrently with deficits in adap-tive behavior. . .” 34 C.F.R. §300.7(a)(5) (1997).By definition, to be mentally retarded, a studentmust have both significantly subaverage intelli-gence and deficits in adaptive behavior. A lowIQ score alone does not justify a diagnosis ofmental retardation. The DSM-IV subdivides thiscategory into four separate diagnoses: midl men-tal retardation (IQ of 50/55 - 70); moderate men-tal retardation (IQ of 35/40 - 50/55); severemen-tal retardation (IQ of 20/25 - 35/40); andpro-found mental retardation (IQ below 20/25).25

The vast majority of individuals with mental re-tardation, approximately eighty-five percent,function in the mild range of retardation and, inpractically all cases, can learn to live in the com-munity independently.26

2. Educational testing for MR

Consistent with the two-pronged definition formental retardation, testing for mental retardationrequires measuring both intelligence and adap-

20See 34 C.F.R. §300.532(a)(3).

21Lower results on intelligence testingfollowing significant head trauma or other similar,intervening occurrence could be reflecting anaccurate picture of intellectual functioning.

22Sattler, supra note 2 at 332.



25Commonly, educators and other refer topeople with IQs between 70 and 85 as having“borderline intelligence”, while people with IQsbetween 85 and 99 are of “low-average intelligence.”

26DSM-IV at 41.


!!!Some people score in the MR

range on standardized intelligencetests (perhaps due to racial biasesin the intelligence test), but arecapable of independently caring

for themselves and otherwiseconducting themselves appropriately.

!!!

!!!School systems generally have a

standard battery of tests used in allspecial education assessments, such

as a combination of intelligence,aptitude, and language tests.

!!!

tive functioning. As defined by the U.S. Depart-ment of Education, adaptive behavior is “theeffectiveness with which the individual meetsthe standards of personal independence andsocial responsibility expected of his or her ageand cultural group.” 34 C.F.R. part 104, App. A.para. 25 (emphasis added). Thus, the assessmentof adaptive behavior includes “(a) the degree towhich individuals are able to function and main-tain themselves independently and (b) the degreeto which they meet satisfactorily the culturallyimposed demands of personal and social re-sponsibility.”27

In other words, to measure adaptive behavior,one elicits information about how well the in-dividual functions in society, regardless of IQ.Some people score in the MR range on standard-ized intelligence tests (perhaps due to racialbiases in the intelligence test), but are capable ofindependently caring for themselves and other-wise conducting themselves appropriately. Sucha person would not meet the criteria for mentalretardation.

A commonly-used test to measure adaptive be-havior for diagnosing mental retardation is theVineland Scales of Adaptive Behavior (Vine-land). In the Vineland, the test giver asks arespondent familiar with the child questionsconcerning the following five areas of adaptivefunctioning: communication, daily living skills,socialization, motor skills, and maladaptive be-

havior.28 Each area of functioning is assessedbased on comparison with standards of behaviorappropriate for the child’s age range. Generally,a parent or guardian is the person who possessesthe most information about the child and is,therefore, the preferred respondent for theVineland. A child’s teacher can be therespondent in an appropriate case; a classroomedition of the Vineland is available for that pur-pose.

Advocates should keep in mind the fact thatadaptive behavior refers to behavior expected inlight of a child’s particular cultural group. Stan-dard instruments for assessing adaptive behaviormay be culturally inappropriate for some child-ren, and thus may lead to their being labeled ashaving mental retardation when in fact they donot.

D. Other tests

The following tests are commonly administeredas part of a comprehensive special educationevaluation;29 visual motor integration testing;speech and language testing; a physical(medical) examination; hearing and visionscreening; occu-pational and physical therapy;and vocational testing and assessments. Many



29As noted above, each child is entitled to a“full and individual evaluation”. 34 C.F.R. §300.531(1997); see also 20 U.S.C. §1414(b)(3)(C) (require-ment to “assess [ ] in all areas related to the suspecteddisability. . .”); 34 C.F.R. §300.532(f) (1997)(same).


disabilities go un-detected because schoolpersonnel do not pro-vide a neurologicalevaluation. In appropriate cases, counsel shouldrequest neurological and psycho-neurologicalevaluations.

E. Other reading

It is beyond the scope of this manual to exhaus-tively describe the intricacies of special educa-tion evaluations and interpretation. For furtherinformation on evaluations, counsel shouldconsult any of the standard resources onassessment of children. Some well recognizedprofessional resources are: Anastasi, Psycho-logical Testing, (Macmillan Pub., New York)(6th Ed. 1988); Sattler, Assessment of Children,(Jerome Sattler Pub., Cal.) (3rd Ed. 1988); andSalvia/Ysseldyke, Assessment, (HoughtonMifflin Co., Boston) (5th Ed. 1991).

The professional texts tend to be fairly dense,but valuable and informative reading. Counselmay also wish to consult with a text which isoriented more towards the non-professional suchas David Woodrich’s easily readable book,Children’s Psychological Testing, (BrooksPublishing, Baltimore) (3rd Ed. 1997).

In addition to the psychological testing, counselmay wish to consult texts which deal withvarious types of non-psychological testing.Books for non-professionals, such as Patriciahamaguchi’s Childhood Speech, Language andListening Problems, (Wiley and Sons, NewYork) (1995), regarding speech issues, or CarolKranowitz’s The Out of Sync Child, (SkylightPress, New York) (1998), can provide a basicunderstanding of some commonly used non-psychological tests as well as further readings.

II. Procedures related to testing

The 1997 amendments to the IDEA changedsignificantly the way in which evaluations (andreevaluations) must be designed and conducted.The evaluation/reevaluation process now beginswith a review of existing evaluation data con-

cerning the child, including information pro-vided by the parents, current classroom-basedassessments and observations, and teacher andother service provider observations. 20 U.S.C. §1414(c)(1)(A). This review is performed by thechild’s IEP team (which, by definition, includesthe parent) and other appropriate qualified pro-fessionals. Id. Based upon its review, this groupthen identifies the additional data that are neededto determine whether the child has (or continuesto have) a particular disability; the child’spresent levels of educational performance;whether the child needs (or continues to need)special education and related services; andwhether current services need to be changed inorder to enable the child to meet IEP goals andlearn in the general curriculum. 20 U.S.C. §1414(c)(1)(B). The school system must thenarrange for the tests and other evaluationmethods necessary to obtain the required in-formation. 20 U.S.C. §1414(c)(2).

In addition to understanding the nature of thedisability, the substantive character of the edu-cational testing, and the evaluation planningprocess, an advocate must be familiar with theprocedural protections relating to the evaluationprocess. The IDEA provides that all testing andevaluation materials must not be racially or cul-turally discriminatory. 20 U.S.C. §1414(b)(3)(A)(i). Evaluations must be validated for thespecific purpose for which they are being used,20 U.S.C. §1414(b)(3)(B)(i), and must beconduct-ed in the child’s native language. 20U.S.C. § 1414 (b)(3)(A)(ii). The testing must beadminis-tered by a person trained to give the testand in accordance with relevant instructions. 20U.S.C.§1414(b)(3)(B)(ii), (iii).30 Tests must be tailoredto assess specific areas of educational need. 34C.F.R. §300.352(b) (1997). Tests must beadministrated in a way that accurately reflectsthe child’s aptitude. 34 C.F.R. §300.532(c)

30The requirements of 20 U.S.C. §1414(b)(3)(A) and (B) have been part of the IDEA regula-tions for many years, see C.F.R. §300.532 (1997),and were incorporated into the statute of 1997.


(1997). No single test score can be the solecriterion for determining whether a child has adisability or determining an appropriate educa-tion program. 20 U.S.C. §1414(b)(2)(B); 34C.F.R. §300.532(d) (1997).31 The RehabilitationAct regulations contain some, but not all of theserequirements: tests and other evaluationmaterials must have been validated for thespecific purpose for which they are being used,must be administered by trained persons in con-formity with the instructions of the producer,must assess specific areas of educational need(rather than simple producing a single generalintelligence quotient), and must accuratelyreflect the child’s aptitude. 34 C.F.R.§104.34(b).

Allegations that testing materials are discrimina-tory has resulted in a profusion of litigation. Inthe Ninth Circuit, for example, litigation chal-lenging as racially discriminatory the use of IQtests that resulted in a disproportionate identifi-cation of black children has spanned over twentyyears. See Larry P. v. Riles, 343 F. Supp. 1306(N.D. Cal. 1972) (granting preliminary injunc-tion prohibiting use of IQ tests to classify blackstudents as educable mentally retarded (EMR)),affirmed, Larry P. v. Riles, 502 F.2d 963 (9th Cir.1974); Larry P. v. Riles, 495 F. Supp. 296 (N.D.Cal. 1979) (holding that use of IQ tests forplacement of black children in EMT classesviolated, inter alia, the EHA, now the IDEA);affirmed as modified in Larry P. v. Riles, 793F.2d 969 (9th Cir. 1984).

In the 1984 Larry P. Circuit Court decision, theCourt held that IQ tests which had the effect ofdisproportionately labeling black students asEMR were invalid because (1) the tests were notvalidated for the purpose for which they wereused and (2) the placement decision was basedprimarily on IQ testing, without other informa-tion. Most recently, the Ninth Circuit ruled that

the original injunction against the use of IQ teststo place black children in EMR classes wouldnot be expanded to prevent the use of IQ tests inany special education assessments of blackchildren. Larry P. v. Riles, 37 F.3d 485 (9th Cir.1994).

In contrast, a District Court in Illinois concludedthat the use of IQ testing for the purpose of plac-ing black children in EMR classes was not un-lawfully discriminatory and was not impermis-sible under the EHA (now the IDEA) and itseducational and instructional implications.Parents in Action on Special Educ. v. Hannon,506 F. Supp. 831 (N.D. Ill. 1980). Noting that“the exact issue of racial bias” in the testing wasaddressed in the Larry P. litigation, the courtheld “the witnesses and the arguments that per-suaded [the California court] have not persuadedme.” Id. at 882. To the contrary, the judge inIllinois held that while a few items on standard-ized intelligence tests were culturally biased,“these few items do not render the tests unfairand would not significantly affect the score of anindividual taking the test.” Id. at 883. In addtion,the court held that when IQ tests are used in con-junction with other criteria as required bystatute, the resulting decisions were notdiscriminatory. Id. at 883.

Once tests and other evaluation materials havebeen administered, a team of qualified pro-fessionals and the child’s parent consider theevaluation data in order to determine whetherthe child has a disability, and, if so, to decide thenature of the disabling condition. 20 U.S.C. §1414(b)(4)(A).32 A copy of the evaluation report

31Advocates should be aware that additionalprocedural safeguards attach when a child is beingevaluated for suspected specific learning disabilities.See 34 C.F.R. §§ 300.540 - 300.543.

32The requirement that a team of “qualifiedprofessionals” and the child’s parent reviewevaluation results and determine disability was addedto the IDEA in 1997. The IDEA regulationspromulgated prior to the 1997 amendments require a“multi-disci-plinary team” that includes at least oneteacher or other specialist with knowledge in the areaof suspect-ed disability. 34 C.F.R. §300.532(e).Proposed IDEA regulations implementing the law asamended in 1997, published at 62 Fed. Reg. 55025 et


and the documentation of the determination ofwhether or not the child is eligible for servicesunder IDEA must be given to the parent. 20U.S.C. §1414(b)(4)(B). In addition, the Rehab-ilitation Act regulations require that in inter-preting evaluation results, the school must “drawupon information from a variety of sources” andmust ensure that information from all sources is“documented and carefully considered.” 34C.F.R. §104.35(c). Case law establishes thatschool personnel, rather than the parent, carrythe burden of obtaining all of the necessaryinforma-tion. See Smith v. Union School, 15F.3d 1519 (9th Cir. 1994) cert. denied, 513 U.S.965 (1994) (failure of parents to provide schoolwith parents’ expert’s report does not excuseschool from duty to secure its own evaluation ofstudent.) See also, Holland v. D.C., 71 F.3d 417(D.C. Cir. 1995).

Finally (as suggested in section I (D) above), thechild must be assessed in all areas related tosuspected disability, including, if appropriate,health, vision, hearing, social and emotionalstatus, general intelligence, academic perform-ance, communicative status and motor abilities.20 U.S.C. § 1414(b)(3)(C); 34 C.F.R. §300.532(f) (1997). School systems often have a standardbattery of tests used in all special educationassessments, such as a combination of intelli-gence, aptitude, and language tests. The IDEAprovisions described above, however, make itclear that evaluation plans and strategies must beindividually designed to assess and meet studentneeds. A standard battery of tests may not coverevery area of potential disability and educationalneed. For example, if a child is exhibiting signif-icant emotional issues, a test a battery that doesnot include projective testing will not provide acomplete assessment of the child’s needs. SeeBabb v. Knox County Sch. Sys., 965 F.2d 104(6th Cir. 1992), cert. denied, 113 S. Ct. 380(1992) (holding that school failed to assesstudent in all areas of suspected disability whenschool psychologist failed to examine student’s

complete academic, psychological, and behav-ioral history, and failed to consult student’streating psychologist and parents before makingrecommendation). In addition, the 1997 amend-ments to IDEA explicitly require IEPs to addressthrough positive strategies and educational inter-ventions the behavioral needs of students whosebehavior impedes learning; the language needsof students who are limited English proficient;the communication needs of children with hear-ing impairments and other disabilities that effecttheir ability to communicate; and the child’sneeds for assistive technology devices and ser-vices. 20 U.S.C. § 1414(d)(3). Doing so requiresevaluations beyond a standard test battery. Seealso 20 U.S.C. § 1414(k)(1)(B) (requiringfunctional behavioral assessments for studentssuspended from school).

seq., would delete this requirement and incorporateinstead the new statutory language.

Chapter

Nine

The Special Education Process:

Individualized Education Program (IEP)

The IEP dictates instruction

and services a student will

receive, which, in turn, directly

affect the child’s opportunities

for educational success.

Written by

Susan E. Sutler

& Joseph B. Tulman

9-2 Chapter Nine: Individualized Education Program

A free, appropriate public education (FAPE) underthe Individuals with Disabilities Education Act(IDEA) essentially consists of special educationinstruction and related services that are provided "inconformity with an IEP . . ." 20 U.S.C. § 1401 (8); 34C.F.R. § 300.8(d)(1997).1 A valid IndividualizedEducation Program (IEP) must meet the requirementsof 20 U.S.C. § 1414(d) and 34 C.F.R. §300.340-300.350 (1997) regarding the procedures for creatingIEPs and the content of IEPs. Id. The IEP is acreature of the IDEA; the Rehabilitation Act does notrequire such written plans. The Rehabilitation Actdoes, however, provide that implementation of anIEP developed under the IDEA is one way ofcomplying with the FAPE requirement contained inthe § 504 regulations. See 34 C.F.R. § 104.33(b) (2).2

Creating an IEP requires a team effort. The parent,the child, the child's teacher, and an individualqualified to interpret the instructional implications ofthe evaluation results3 jointly consider all of the

information gathered through the evaluation processabout the child's present academic, cognitive,emotional, and perceptual functioning. This team --referred to in the IDEA as the "individualizededucation program team"-- constructs long- andshort-term educational goals for the child whichrespond to the child's specific needs. The "team"must also construct a plan for the child to accomplishthose goals. The goals and the plan for accomplishingthe goals become part of the IEP.

The child is a member of the team and should beencouraged to attend the IEP conference, the meetingat which the team drafts the IEP. The statute stopsshort of mandating the child's participation at themeeting,4 but does require either participation orinput by the child at any meeting in which the teamconsiders transition services.5 At an IEP meeting atwhich transition services will be considered, thepublic agency must also invite "a representative ofany other agency that is likely to be responsible forpro-viding or paying for transition services". 34C.F.R. § 300.344 (c)(1)(ii)(1997).

The formulation of a written IEP is a critical phase ofthe special education process. The IEP dictates the

1As previously discussed, to constitute a FAPE,the education provided a child with a disability must alsomeet the standards of the state educational agency,including curriculum standards, and provide anappropriate elementary or secondary education as definedin that state. 20 U.S.C. § 1401(8).

2An increasing number of school systems are nowdeveloping written "§504 plans" for students who areeligible for services under the regulations implementing §504 of the Rehabilitation Act, but not under IDEA.

3See 20 U.S.C. § l4l4(d)(1)(B). At least oneregular education teacher of the child and one specialeducation teacher or provider must be part of the team.Another participant required at the meeting is arepresentative of the school system who is qualified toprovide, or supervise the provision of, specially designedinstruction to meed the unique needs of children withdisabilities; is knowledgeable about the generalcurriculum; and is knowledgeable about the availability ofresources in the school system. 20 U.S.C. §

l4l4(d)(1)(B)(iv).

4The relevant provision, 20 U.S.C. §l4l4(d)(1)(B)(vii), requires the public agency to ensure thechild's participation "whenever appropriate". Given therange of ages and disabilities covered by the IDEA, onemight conclude that the modifying language, "wheneverappropriate", is not meant to empower school personnel toexclude students, particularly teenagers, fromparticipation. Whether student attendance of IEP meetingsis "appropriate" should be determined by parent andstudent. The independent IDEA requirement that parentsbe permitted to invite to participate on the team anyonewith "knowledge. . . regarding the child," 20 U.S.C. §l4l4(d)(1)(B)(vii), buttresses this interpretation. A child'spresence has value, and may be "appropriate in the view ofparent and/or child," even if he or she is not capable offully comprehending the import or content of the meeting.

5See 300 C.F.R. § 300.344(c)(1)(I) (l997)(ifpurpose of meeting to consider transition services, "publicagency shall invite the student")(emphasis added); 300C.F.R. § 300(c)(2)(1997) (agency re-sponsible to ensurethat student's preferences and interests are addressed ifstudent does not attend).

!!!Creating an IEP requires

a team effort.!!!


instruction and services a student will receive. Inturn, the IEP directly affects the child's opportunitiesfor educational success. In light of the centralfunction of the IEP, counsel must attend andparticipate in the IEP confer-ence. Counsel often canmake critical contri-butions at an IEP conference. Forexample, counsel can persuade the other participantsat the conference to include a particular service or tochange an aspect of the program.

The IEP is particularly important for a child with adisability who is in the delinquency system. The IEPcan function as an alternative-to-detention plan, or asa treatment plan that supersedes a standarddispositional program. A properly-constructed IEPshould be superior in design and content to anythingtypically found in the delinquency system. Thus, byensuring that the IEP includes particular types ofinstruction, as well as particular related and transitionservices, counsel can enhance the child’s chances ofavoiding detention or a delinquency disposition thatis punitive and ineffectual.

The overlap of education-related services anddelinquency demands may provide better alternativesto a child. For example, if a child has had relativelyminor delinquency involvement, a typical dispositionmight be probationary supervision. An IEP thatprovides for psychological counseling and somespecialized instruction in school may be sufficient tohelp the child abstain from delinquent conduct. Thesupervision, structure, and programming in an IEPcan easily be more comprehensive than servicesavailable through probation or commitment; a judge,therefore, might readily accept the IEP as analternative to a standard disposition of a delinquencycase.

I. Parent participation

The public agency must take steps to ensure thatparents have the opportunity to attend and participatein the IEP conference/meeting. 34 C.F.R. §300.345

(1997). The parent/guardian is a member of the IEPteam and has the right to be an equal participant indeveloping, reviewing, and revising the student’sIEP. The public agency must provide the parent withnotice – in a language and manner the parent canunderstand – that indicates the purpose, time, place,who will be in attendance, and the parent’s right tobring other persons to assist them at the IEP meeting.34 C.F.R. §300.345(a) & (b) (1997). All attempts tocontact the parent should be documented by thepublic agency. 34 C.F.R. § 300.345 (d) (1997).Transition services, if necessary, must be indicated inthe notice of an IEP meeting. In addition, the agencymust also extend an invitation to the student andnotify representative from other agencies, ifapplicable.

The IEP meeting is required to be scheduled at a“mutually agreed upon time and place.” 34 C.F.R.§300.345(a)(2). Often, the public agency willschedule a time for an IEP without input from theparent.

The parent and child should not have to leave workor conform to the agency’s schedule if it would causehardship. Once the evaluations are completed, it isrecommended that the advocate propose – in a letterto the IEP coordinator – several dates and times thatare convenient for the parent, child and advocate. Itwill be necessary for the advocate to inform thepublic agency – in writing – that the parent andstudent have retained an advocate for the specialeducation case. In addition, the advocate shouldrequest that the public agency notify the advo-cate ofany meetings to be scheduled pertaining to the child.

A client may, at times, fail to inform the advo-cate ofinformation received from the public agencyregarding an IEP. The advocate, being proactive,should talk with the client about the importance ofkeeping the advocate informed of any noticesreceived from the public agency. The advocateshould establish a rapport with the client that makes iteasy for the client to com-municate. An advocateshould propose con-venient meeting dates andfrequently contact the client and the public agency.

In order for the parent to have meaningful input, thepublic agency may be required to provide aninterpreter for a parent who is deaf of non-Englishspeaking. 34 C.F.R. §300.345(e)(1997). The parent

!!!Signing the IEP does not necessarilysignify that a parent agrees with the

contents of the IEP.!!!


should fully understand the signifi-cance of signingthe IEP. In some states and school systems, thesignature only indicates a parent’s presence andparticipation in the meeting. Signing the IEP does notnecessarily signify that a parent agrees with thecontents of the IEP. In other states and schoolsystems, however, signing the IEP constitutesagreement with its contents.

The public agency cannot bring a completed IEP tothe meeting and simply request the parent to approveand sign it. In an effort to save time, the publicagency will often bring a “draft IEP” based on theirrecommendation for goals and objectives. The “draftIEP” can then become a working document to bemodified in whole or part depending on the parent’sinput, the student’s needs, and the advocate’s inputduring the IEP conference.

Under certain circumstances, the public agency canproceed with the development of an IEP without theparent’s presence. When a parent refuses to attend anIEP, or chooses not to attend, and proper notificationhas been given, the public agency can proceed withthe IEP provided they have made a good faith effort,that is well documented, to convince the parent toattend and schedule a mutually-agreed-upon time andplace. 34 C.F.R. § 300.345(d)(1997). If the parentcannot attend, the agency must use other methods toensure parent participation, including individual orconference telephone calls. 34 C.F.R. § 300.345(c)).If an IEP is developed without the parent present, andthe parent later claims at a due process hearing thatproceeding in the parent’s absence constituted aprocedural violation of IDEA, the public agency willbe re-quired to produce evidence to show that a goodfaith effort was made to notify the parent andconvince the parent to attend before having pro-ceeded. The public agency can bring such evidenceas “detailed records of telephone calls,” “copies ofcorrespondence sent to the parents. .,” and “detailed

records of visits made to the parent’s home or placeof employment. . .” Even under these circumstances,failure to attend the meeting does not waive theparent’s right to challenge the contents of the IEP.6

On occasion, a parent may give the advocatepermission to attend the IEP meeting without theparent. The advocate should make every effort toencourage the parent to participate. In addition, theadvocate should explain the importance of theparent’s participation at the IEP meeting. In the eventthat the advocate waives the client’s right to attendthe IEP meeting, the advocate should reserve theparent’s right to review the IEP and request changesor additions, if necessary. Under these circumstances,an IEP meeting can be reconvened without all theteam members, depending on the nature of theparent’s disagreements or requests.

II. Purpose of IEP conference

The multiple purposes for the IEP conference are asfollows: (1) to review the evaluation information; toexplain the team’s findings and to answer anyquestions the advocate and the clients may have; (2)to determine the child’s eligibility and needs forspecial education ser-vices; (3) to provide ampleopportunity for parent/student input and participationin this decision-making process; and, mostimportantly, (4) to formulate a written IEP.

A conference to review, revise, and update the IEPmust take place at least annually; however, a parent,an advocate, or school personnel may request an IEPreview meeting at any time. 20 U.S.C. § 1414(d)(4);34 C.F.R. § 300.343(d) (1997). The IEP is notconsidered a binding contract,7 but it does serve a

6See also Jackson v. Franklin Co. School Board,806 F.2d 623, 632 (5th Cir. 1986)(IDEA right toappropriate education is not simply parent’s right to giveup; even if parent had voluntarily agreed to child’swithdrawal from school in wake of behavioral problems,school district remained obliged to convene IEP meetingand comply with IDEA).

7Federal regulations indicate that while the publicagency is required to provide the services in the IEP, if thechild does not achieve the goals and objec-tives, theagency is not in violation of the regulations, assumingproper implementation of the IEP and good faith efforts

!!!The parent/guardian is a member of the

IEP team and has the right to be an equalparticipant in developing, reviewing, and

revising the student’s IEP.!!!


dual purpose to guide the teacher and serviceproviders in planning and implementing theirinstruction and intervention services, and to help theparents and advocates monitor the educationalprogress of the student.

The IEP is both a process and a written document;the IEP establishes rights for the parents of the childand creates corresponding obligations upon thepublic school agency. The advocate should be awarethat the process affects the product and should raiseboth procedural and substantive challenges to theclient’s programming. In the Rowley case, the U.S.Supreme Court emphasized the importance ofcompliance with procedural mandates pursuant to theIDEA as a prerequisite to formulating an appropriateIEP. The involvement and presence of an educationaladvocate can increase the likelihood of compliance.

The regulations covering IEPs are 34 C.F.R. §§300.340 - 300.350 (1997). The advocate should befamiliar with these sections of the regulations. It isalso imperative that the advocate be thoroughlyfamiliar with Appendix C to Part 300: Notice ofInterpretation. This appendix addresses the purposeand requirements of the IEP, covered by theaforementioned statutory provisions, in a question-and-answer format. At due process hearings, theadvocate can cite to this appendix as law in supportof a substantive challenge.

The regulations should be taken to the IEP con-ference for reference purposes. The advocate shouldalso be familiar with the state’s specific standards and

eligibility requirements for each category ofdisability. In addition, the advocate should befamiliar with the state standards for special educationprograms and services. The state standards should bein written form in every state and the advocate mustobtain and keep a copy of them. The IEP team relieson such standards in determining eligibility and, insome cases, the kinds of services and instructionalsupports that the child will receive. Therefore, it isimportant that the advocate take the state standards toan IEP meeting as well. The public agency isresponsible for the development and implementationof IEPs for children placed in public facilities andstudents placed and funded in private facilities by thepublic agency. 34 C.F.R.§ 300.341 (1997). As ageneral rule, the public education agency isresponsible for initiating and conducting the IEPconference with all the necessary participants present.34 C.F.R. § 300.343 (1997). If, however, a client hasalready been identified as eligible and has beenplaced and funded in a private school by the publicagency, the private facility may initiate and conductthe IEP conference “at the discretion of the publicagency,” on the condition that both the parent and theagency are involved in decisions made regarding theIEP before it is implemented. 34 C.F.R. §300.348(b)(1997).

Regardless of the particular state’s applicable timeline for completing assessments and proposingplacements for eligible children, one of the few timelines contained in the federal regulations mandatesconducting an IEP conference “within 30 calendardays of a determination that the child needs specialeducation and related services.” 34 C.F.R. §300.343(c)) (1997). In addition, the IEP must beimplemented 'as soon as possible following' the IEPmeeting. 34 C.F.R. § 300.342(b)(2)(1997). Thepurpose for this regulation is to ensure that thestudent should receive the benefit of specializedinstruction and related services as soon as possible.8

have been made to help the child achieve. 34 C.F.R.§300.350 (1997).

8The U.S. Department of Education's 1997proposed amendments to the IDEA regulations state that"[f]or most children, it would be reasonable to expect thata public agency offer services in accor-dance with an IEPwithin sixty days of receipt of parent consent to initialevaluation." Note to proposed 34 C.F.R. §300.343, 62 Fed.

!!!The IEP is both a process and a written

document; the IEP establishes rightsfor the parents of the child and creates

corresponding obligations upon thepublic school agency.

!!!


III. Contents of the IEP

The contents of the IEP must be tailored to meet thespecific individual needs of the child beingrepresented. The goals and objectives in an IEPprovide a mechanism for determining whether thestudent is progressing, whether the desired out-comesare being met, and whether the placement andservices are appropriate to meet the student's needs.The goals and objectives in the IEP should focus ondeficiencies that interfere with the child's learning,the child's ability to learn what all children are taughtin the general curriculum, and promoting the child.The goals and objectives require specialized instruc-tion, related services, and/or transition services. Atthe IEP meeting, an advocate and parent mustarticulate, in detail, any instruction or services theywant or expect the child to receive. The ad-vocatemust ensure that the public agency representatives donot limit instructional goals or recommended servicesto the available resources of the school system;rather, goals and services must meet the individualeducational needs of the child.

The child's current performance levels should bebased on data taken from testing less than one yearold. The team should consider and reviewstandardized and informal assessment measures;teacher-made tests; classroom observations;teacher/service provider anecdotal and progressnotes; and behavioral statements and programs.

Mastery of goals and objectives can be measured in

percentages, ratios or time. With respect topercentages, the goal may be that the student willperform a task with eighty percent accuracy over aspecified period of time. This particular means ofmeasuring mastery of a goal is often confusing toparents and educators, unless it pertains to test scores.For example, the student will show mastery of twodigit addition/sub-traction when he obtains eightypercent or higher on three consecutive teacher-madetests. A student can also demonstrate mastery of agoal by performing a task a certain number of timescorrectly when performing the task for a specifiednumber of tries. For example, if the student can "tiehis shoe," eight out of ten tries, the student ismastering this goal with eighty percent accuracy. Inother examples, a student can "identify the maintheme in a paragraph," or, "correctly get in and out ofa specific computer program" eight out of ten triesand master such goals with eighty percent accuracy.

It is helpful to prioritize goals in the IEP by startingwith the skills most difficult for the child. Forexample, if the child is found to be seriouslyemotionally disturbed, the IEP should first addressemotional and behavioral goals with recommendedobjectives and services. If the child is learningdisabled in reading, spelling, and math, the IEPshould first address academic goals and objectivesdesigned to reduce and improve the deficits inreading, spelling and math, and enable the child toattain the mastery all other students are expected toattain.

Related or transition services should be specifiedregardless of whether the public agency is actuallyproviding the service or funding a private provider. Itis not enough to simply indi-cate the need forcounseling. If the child needs psychologicalcounseling, and the advocate and the client want aparticular type of professional to provide the service,the IEP should expressly state that. For instance,depending on the stu-dent’s needs, the IEP may needto denote a “school psychologist” or perhaps a“clinical psychologist” as the provider. This type ofdetail is required. Without such detail on the IEP, thechild will not receive either the service, or the publicagency will make a determination unilaterally.Advocates should prevent the public agency from

Reg. 55088 (October 22, 1997).

!!!The advocate must ensure that the

public agency representatives do notlimit instructional goals or recommended

services to the available resources ofthe school system; rather, goals andservices must meet the individual

educational needs of the child.!!!


making such decisions when they can easily bedetermined at the IEP conference.

The IEP should contain great detail when the childneeds any technical equipment, instruc-tionalmaterials, furniture, or supplemental aids – in thespecial or regular education classrooms – to ensureeducational benefit. If the child needs to have accessto a computer or calculator, manipulatives, aspecially designed chair, or preferential seating, theadvocate should ensure that such devices andadaptations are reflected in the IEP with specificity.

The frequency of services a child is to receive perweek (e.g., once or twice per week), the duration oftime the student is to receive each service (e.g., thirtyor forty-five minutes), and the type of setting inwhich the child is to receive each service (e.g., group,individual, classroom, consultative), must beindicated on the IEP. Consultation is designed to beprovided directly to the teacher as opposed to thestudent. For example, the IEP should indicate that thespeech therapist will consult with the classroomteacher, biweekly, for thirty minutes. It is alsoimportant to be specific in the IEP when a need for aservice provider to conduct an “in class” service tothe student is necessary, while he or she is involvedin a class activity, as opposed to pulling the studentout of the classroom.

Nothing should be left open to interpretation by theteachers or decided at a later time by a serviceprovider. The parent, teacher, or service provider canalways request to reconvene the IEP meeting toamend or modify an IEP, if necessary. The advocateand parents are not limited to the related servicesspecifically outlined in 34 C.F.R. § 300.16(1997). Asindicated in the note following that statutory

provision, the list of services is not exhaustive of allthe developmental, supportive, or corrective servicesa client may need. Further, it is critical for theadvocate to remember that related services should beincluded based upon the student’s desires and thestudent’s needs. Often, public agency representativesdo not want to include certain services because theycan not provide them or they do not have theresources to acquire the service or equipment. Anadvocate should not be deterred from requesting thatcertain services be incorporated into the IEP. Anagency’s lack of resources is not a determining factorfor what should or should not be in a student’s IEP;the student’s specific needs govern. 34 C.F.R. §300.17(a)(1)(1997).

Finally, the advocate must be thoroughly familiarwith the definition and types of “assistive technologydevices and services” available. 20 U.S.C. §§1401(1), 1401(2), 1414(d)(3)(v)(B); 34 C.F.R. §§300.5, 300.6 (1997). These services and devices canbe invaluable tools for students with disabilities.These too, must be outlined with specificity in thestudent’s IEP. The advocate should keep in mind thatthese provisions may support and require the publicagency to evaluate the client to determine if sometype of technological device or service is required.The advocate may be able to get assistance for thechild's family to learn how to use or operate thetechnological device if it is something the child needsat home to insure progress at school. The advocateshould take advantage of these provisions.

IV. Transition services

When the IDEA was amended in 1990, one of theprimary amendments mandated that students agesixteen or older and, when appropriate, studentsfourteen or older, have transition services integratedinto their IEP. The 1997 IDEA amendmentsstrengthened this mandate, requiring transitionservices related to the child's course of studybeginning at age fourteen, and the full panoply oftransition services beginning at age sixteen, andearlier "if appropriate.." 20 U.S.C. §1414(d)(1)(A)(vii). The IDEA defines transitionservices as follows: "A coordinated set of activitiesfor a student, designed within an outcome-oriented

!!!Nothing should be left open to

interpretation by the teachers ordecided at a later time by a

service provider.!!!


process, which promotes movement from school topost school activities, including: post secondaryeducation; vocational training; integratedemployment (including supported employment);continuing and adult educational adult services;independent living; or, community participation." 20U .S.C. § 1401(30)(A); 34 C.F.R. §300.18(a) (1997).The statutory provision further requires that thecoordinated set of activities be included in thestudent's program and based on the student'sindividual needs, interests, and preferences. 20U.S.C. § 1401(30)(B).

Additionally, the set of activities outlined in astudent's IEP must include the following:"instruction; community experiences; development ofemployment and other post school adult livingobjectives; and, when appropriate, daily living skillsand functional vocational evaluation." 20 U.S.C. §1401(30) (A); 34 C.F.R. § 300.18(b)(2)(1997). If theteam decides the student does not need services inany of the previously-specified areas, the IEP mustcontain a statement to this effect and the basis uponwhich this decision was made. 34 C.F.R. §300.346(b)(2).

A. Goals of transition services

There are four primary goals of transition fromschool life to life in the community. The advocateand team need to address any or all of these areaswhen integrating transition planning into the IEPprocess. They include: (1) em-ployment andeducation; (2) independent living; (3) interpersonaland social relationships; and (4) self-advocacy. Whenintegrating these aspects into the IEP, the advocateand the team must design objectives and activities

which promote the achievement of these goals.Further, the transition goals and objectives must bebased on the student's current levels of performance.How-ever, unlike developing statements pertaining tospecial education instruction and related services, theteam must look several years into the future in orderto pro-actively address the transition needs of thestudent. The advocate and team must ask themselvesthe following question when considering transitionplanning each school year: ill light of the remainingnumber of years the student has in school, thestudent's level of performance, and where he or sheneeds to be at the end of high school, what transitionservices are needed this year?

The first category – education and employment – caninclude among other things, college, appren-ticeships, continued vocational training, inde-pendentor supervised employment, and volun-teer positions.The second category – indepen-dent living – pertainsto such skills as the stu-dent's ability to: care for,feed, cloth, and pro-vide shelter for himself; managetime; pay bills; travel from place to place; become in-volved in the community; and relax. The thirdcategory – interpersonal and social relationships –involves skills in the areas of self-awareness and con-fidence, written and verbal communication, theability to read social cues, and to inter-act and behaveappropriately. Finally, the fourth category – self-advocacy – pertains to knowing basic rights, standingup for yourself, assuming responsibility for youractions, articulating your needs, asking for help whennecessary, and problem solving and decision-makingskills.

B. Transition planning

In order for transition planning to be effective for achild with disabilities, that planning must begin whilethe child is still in school. The transition goals mustbe a component of the IEP in order to ensure that thestudent gets assistance, experience, and practice priorto leaving the school setting. The IEP team mustdiscuss, re-view, reassess and even modify, ifnecessary, the student’s curriculum in light oftransition goals. The team members should link thestudent’s cur-riculum to the skills the student needsin order to meet post-secondary-education goals.

!!!In order for transition planning to beeffective for a child with disabilities,that planning must begin while the

child is still in school.!!!


Transition planning is a process which involves thestudent, the family, school and post-school servicepersonnel, local-community represent-atives,employers, members of the business community,advocates, transition specialists, work-experiencecoordinators, and government-al-service personnel.The advocate must be familiar with the student’sinterests and preferences to help determine whatother agencies, if any, the student should attend.Some transition services will not be delivered by theschool system; rather, another participating agency orprivate industry will provide the agreed-uponservices.

The advocate must ensure that the agency/privateprovider is specified in the actual written IEP. Inaddition, the advocate should have strategiesoutlining how that agency will assist the student inmeeting the transition objectives explicitly stated inthe IEP.

The advocate should inform the public agency’s IEPcoordinator of persons to notify from outside privateand public agencies. The advocate should also notifythese person/ agencies independently, to assure theiratten-dance at the IEP meeting. When possible, theadvocate should have already forwarded thefollowing documents to outside agencies: evaluationreports; the last IEP; the applicable curriculum; thestudent’s schedule; and any other relevantinformation. By forwarding such in-formation, theadvocate enables the appropriate personnel from theoutside agency to become familiar with the student’slevel of performance, as well as with the student’sstrengths and weak-nesses. The advocate should talkwith outside agency staff prior to the IEP meeting.Again, despite the legal obligation created by theIDEA, advocates should not rely on the public

agency to do all the necessary preparation oridentifica-tion of appropriate persons or agenciesneeded to develop, implement, and finance transitionser-vices for the student.

If the participating agency fails to provide theservices, it is the educational public agency’sobligation to reconvene the IEP meeting in order toidentify another agency, come up with somealternative strategies to meet the student’s transitionprogram, or revise the IEP. 34 C.F.R. §300.347(a)(1997).

The vast majority of special-education-eligible clientswho have cases pending in the delinquency systemwill be eligible for transition services. For thosestudents, transition services open a door to a widerange of services. These services exceed what isavailable pursuant to the IDEA’s related-servicesprovision and what the delinquency court can offertypically. The ad-vocate plays a critical role inensuring that trans-ition services are identified andintegrated into the IEP. To secure a successfultransition ser-vices program the advocate should,among other things,N remind the public agency of – and hold themaccountable for – their obligation to providetransition services as created in the statute;N assist the student/client in identifying interests,career goals, and any post-secondary objectives, andmake these known to the public agency;N begin to identify and contact post-secondaryschools, businesses, other government agencies,programs, services, and sources of financing -- basedon the client's interests;N notify necessary persons about the IEP and provideeach person with the information needed to allow formeaningful planning and input;N monitor and follow-up with appropriate contacts toensure compliance with and success of the transitionservices program; and, notify the public agency andteam to reconvene the IEP, if modification of thetransition services program is needed.

In constructing a transition plan, the advocate needsto be innovative and creative. It is unlikely that oneperson, agency, or organization can design the planor put it into operation. Collabor-ation and

!!!Some transition services will not be

delivered by the school system; rather,another participating agency or privateindustry will provide the agreed-upon

services.!!!


coordination are central to the success of a transitionservice plan, and will pose a significant challenge forthe advocate and team members. Much of thetransition service plan-ning must take place prior tothe IEP meeting. Transition planning cannot happenif the ad-vocate, clients, school system, and otherappro-priate agencies have not coordinated theirefforts prior to, and in preparation for, the IEPmeeting.

C. Other legal resources for transition services

In addition to the IDEA, three other federal lawsprovide resources for transition services. They are (1)The Carl D. Perkins Vocational and AppliedTechnology Education Act, (2) The School-to-WorkOpportunities Act, and (3) The Rehabilitation Act(for funding of state initia-tives and services). Theadvocate should be familiar with all three of thesefederal laws.

The Carl D. Perkins Vocational and AppliedTechnology Education Act, 20 U.S.C. §2301 et seq.,provides funds to states and local school systems forvocational education programs for all students. ThePerkins Act provides special rights and protectionsfor students who are members of "specialpopulations," including students who areeconomically disadvantaged (low-income);educationally disadvantaged (low-achieving); havedisabilities; have limited English proficiency (LEP);are seeking to participate in programs designed toeliminate sex bias (i.e., students trying to enter a fieldnot traditional for their gender); and are incorrectional institutions. 20 U.S.C. §2471(31).School systems receiving Perkins funds must providespecial population students with equal access to thefull range of vocational education programs; torecruitment, enrollment, and placement activities;

and, to the extent practicable, to comprehensivecareer guidance and counseling services. 20 U.S.C.§§ 2328 (a)(1), 2328(2). Moreover, programs maynot discriminate on the basis of special populationstatus. 20 U.S.C. § 2328(a)(2). Beyond provision ofequal access and nondiscrimination, Perkinsrecipients have an explicit obligation to providesupplementary services to enable students to succeedin programs. 20 U.S.C. §§ 2328(c))(3), 2343(12)(B),2471(38). Supplementary services include curriculummodification; equipment modification; class- roommodification; supportive personnel; instructional aidsand devices; counseling; English languageinstruction; child care; and special aids. Id.

The School-to-Work Opportunities Act, 20 U.S.C. §6101 et seq., provides states and local communitieswith funds to create “school-to-work systems” thatprovide all students, including students withdisabilities, with the opportunity to participate inprograms that integrate school- and work-basedlearning, vocational and academic education, andsecondary and postsecondary education. In additionto school- and work-based learning, school-to-workprograms must include school- and work-sitementoring, assistance with place-ment into both jobsand postsecondary education and training, andlinkages to other community services that may benecessary to assure a successful transition fromschool to work. 20 U.S.C. §§ 6112-6114.

Finally, advocates should be aware of transition-related services to which their clients may be entitledunder their state’s vocational rehabilitation program.These services, funded in part through the federalRehabilitation Act, 29 U.S.C. 701 et seq., are gearedtowards allowing individuals to prepare for andengage in employment. As adolescents (and adults)who meet eligibility requirements are entitled toservices, the state vocational rehabilitation agency isoften a critical participant in transition planning andtransition service delivery under the IDEA.

There may be a Transition Advisory Committee(TAC) in each jurisdiction or district that functions atthe state or local level. This decision-making bodyoperates as a community inter-agency transitionplanning committee. An advocate should inquire and

!!!It is unlikely that one person, agency,or organization can design the plan,

or put it into operation.!!!


!!!In order to have meaningful input

during the IEP, the parent andadvocate need time to review the

reports alone, with each other, andwith an outside expert (e.g., educationalconsultant, psychologist), if applicable.

!!!

take advantage of the TAC, if available, forknowledge and resources. The public agency shouldbe aware of such a committee, or one can contact theregional Council For Exceptional Children (CEC)office, if such an organization exists in yourjurisdiction. The Council For Exceptional Childrenpublishes documents on a variety of issues pertainingto children with special needs.9

V. Preparing for the IEP

Early in the evaluation process and in prepara-tionfor the IEP meeting, the advocate should make awritten request of the public agency to provide copiesof the evaluation reports to the advocate andparent/guardian upon completion of all assessments,and at minimum, seventy-two hours before the IEPmeeting is conducted. Although there is no regulationwhich mandates a time certain for receipt of theevaluation reports, the regulations require the publicagency to comply with parents’ request to review andreceive copies, “. . . without unnecessary delay andbefore any meeting regarding an IEP . . . and in no

case more than forty-five days after the request hasbeen made.” 34 C.F.R. §§ 300.562 (a), 300.562(b)(2) (3) (1997). This regulation also makes it clear thata parent’s representative has every right to inspect thestudent’s educational records, as well. In order tohave meaningful input during the IEP, the parent andadvocate need time to review the reports alone, witheach other, and with an outside expert (e.g., educa-tional consultant, psychologist), if applicable.

If an outside expert is needed, the reports will have tobe forwarded to the expert with sufficient time toreview, and in some cases produce a written responseto, or critique of, the public agency's report. A writtenreport will be especially important if the expert cannot attend the meeting and is disagreeing in any waywith the public agency's findings or recommend-ations. The advocate may want to submit the report tothe team for consideration.

In light of the above, the advocate should make three(3) copies of the documents received. One clean copyof each report should be kept in the file. The advocatemay need to reproduce these documents again for useat a due process hear-ing. One set should beforwarded to the clients; one set should be used as aworking document for the advocate to highlight andannotate with questions and comments; and theadvocate should forward the last set to an expert forre-view. In some instances the advocate will notreceive the evaluations more than seventy-two hoursbefore an IEP meeting, and the reports may only behandwritten. To accomplish the client's objectives,however, the advocate may need to go forward withthe development of the IEP. A pending delinquencycourt proceeding, for example, may necessitate theexpeditious production of an IEP.

Pursuant to a request at the outset of the repre-sentation for a client's educational records, theadvocate should have received and reviewed all ofthose records with particular focus on the stu-dent'sexisting (or last) IEP, the last assessment reportspreceding the current evaluation, and the student'sgrades and attendance records, again with anemphasis on the last two years. Of course, anyoutside evaluation reports submitted to the publicagency for review, pursuant to 34 C.F.R. §§

9Other resources for advocates on transitionservices issues are the National Transition Alliance forYouth with Disabilities (University of Illinois, 113Children’s Research Center, 51 Gerty Dr., Cham-paign, IL61820; 217-333-2325); the National Trans-ition Network,University of Minnesota, 106 Pattee Hall, 105 PillsburyDr. SE, Minneapolis, MN 55455; 612-626-7220); andNational Information Center for children and Youth withDisabilities (NICHCY) (which puts out information on avariety of issues, and has an extensive publicationscatalog), P.O. 1492, Washington DC 20013-1492; 800-695-0285 or 202-884-8200).


300.503(c))(1), 300.503(2) (1997), either done byprivate practitioners or through the court system,should also be thoroughly reviewed and consideredwhen preparing for the meeting. If the advocate orthe school assessment team members suspect that thechild may be eligible as a Seriously EmotionallyDisturbed (SED) student, the advocate's recordreview will need to go back further in time, sinceeligibility in this disability category requires that thechild exhibit certain "characteristics over a longperiod of time and to a marked degree". 34 C.F.R. §300.7(b) (9) (1997).

In addition to the evaluation reports, the advocateshould have a number of other docu-ments whenattending IEP conferences. The advocate shouldbring to the IEP, for reference purposes, a copy of thespecial education regula-tions and any other statecode provisions, or Board of Education Rules, whichmay apply in the jurisdiction. The advocate must alsobe familiar with, and have a copy of, the applicablestate standards and eligibility requirements for eachdisability category and for the special educationprograms (i.e., teacher-pupil ratio, class size, agerange, etc.). This information should be in writtenform in every state. The team relies on state standardsin determining eligibility and placement. Thisdocument is referred to during eligibility and IEPmeetings. Having the written eligibility criteriaaccessible is helpful in keeping the team focused. Thespecial education advocate should use such standardsalso in formulating questions to challenge or clarifythe team's eligibility findings.

Another critical document is the student's existing orrecently-expired IEP. For a student who has already,the team members should review annual goals andobjectives set forth in the last IEP and also, of course,should discuss any new test results. The teacher orservice pro-vider should go through each of theobjectives and discuss to what extent over the pastschool year the student accomplished the goal andany of the incremental objectives, and whether theparticular goal needs to be included, modified, or leftour of the new IEP. There should also be discussionabout what teaching techniques did or did not workin assisting the student accomplish these goals. Theadvocate must be familiar with the last IEP, compare

the information contained therein with the newevaluation data, and be prepared to ask questions ormake recommendations. The advocate should havediscussed the current IEP with the client before theIEP conference to determine what goals the parentsbelieve did or did not get accomplished and whatthey want the student to focus on during the up-coming school year.

If the outside expert reviewing the evaluation reportsis unable to attend the IEP meeting, the advocateneeds to confer with that person prior to the meetingto obtain advice and answers to questions. If theexpert plans to write a report or attend the meeting,preparation should include reviewing the evaluations,interviewing the student (and others), and observingthe student in class, etc. The advocate should explainto the expert what the client’s short- and long-termobjectives are in order to avoid having the expertarticulate some position during the meeting that iscontrary to the client’s objectives.

Finally, the advocate will want to meet with the clientto go over the evaluations; the goals on the last IEP;the student’s accomplishments and any pendingissues or problems needing to be addressed by theteam; any questions the clients may have; and what isit the clients want for the student, based on theirknowledge, objectives and information received fromthe evaluations. Particularly for clients who havenever partici-pated in an IEP meeting the advocatemust describe what will take place and how themeeting is conducted. Prior to representing a familyat an IEP meeting, a novice advocate should observeat least a few IEP meetings. If a more experienc-edadvocate’s client gives permission, an opport-unity to

!!!If the outside expert reviewing the

evaluation reports is unable to attendthe IEP meeting, the advocate needsto confer with that person prior tothe meeting to obtain advice and

answers to questions.!!!


observe can easily be arranged. It is also importantfor the clients (parent and student) to know that theyare key members of the team and that theirattendance and participation is import-ant. The clientsshould be in-formed that if they have questions,comments, or disagree with any-thing said, theyshould express their concerns during the meeting orinform the advocate to share their concerns. If theclient has been, or is in, the delinquency system withpending court case(s), the student andparent/guardian should be advised not to discuss anyarrests, charges, or dispositions during the evaluationprocess and the IEP conference, unless there is somebene-ficial or strategical reason to do so.

In providing family history to the team social worker,parents often volunteer information that is negativeand irrelevant with respect to eligibility anddesigning an educational program for the student. Asa general rule, the advocate should request thatdetails about the student’s present and pastdelinquency involvement be deleted from the report.Often such information is irrelevant to the issuesbeing discussed and is pre-sented either inaccuratelyor in a fashion which assumes guilt. This is aparticular problem when a client is incarceratedduring the time of the evaluation and IEP conference.

Public agency personnel may make frequentreferences to the student’s having been arrested,charged, and incarcerated. Further, during theplacement stage, public and private school ad-ministrators use this information as a discriminatorybasis for rejecting the students.

VI. The IEP conference and its participants

The public agency must ensure that the followingpersons participate in the formulation of a child’sIEP: the child’s parents; at least one of the child’sregular education teachers; at least one of the child’sspecial education teachers or providers; arepresentative of the school system who is (I)qualified to provide or supervise the provision ofspecially designed instruction to meet the uniqueneeds of children with dis-abilities, (ii)knowledgeable about the general curriculum, and (iii)knowledgeable about school system resources; an

individual qualified to in-terpret the instructionalimplications of evalu-ation results; and the child,whenever appro-priate. 20 U.S.C. §1414(d)(I)(B).10

The school system representative on the team musthave the authority to commit the agency to providewhat-ever services are included in the IEP, so that theIEP will not be "vetoed" by school adminis-trators orother school officials. 34 C.F.R. part 300, App. C, ¶13 (1997). If the IEP is to include transition services,both the student and repre-sentatives from anyagency providing transition services must be invitedand present. 34 C.F.R. §300.344(c) (1997).

To ensure the presence of all the appropriate personsat an IEP meeting, the advocate should inform theschool system's IEP coordinator, in advance and inwriting, who from the public agency should attend. Itis advisable to have the entire assessment teampresent at initial and triennial evaluations to discusstheir findings and recommendations and to answerquestions. When vocational assessments or transitionservices are to be discussed, the vocational assessorsor transition specialists also should be present. Theadvocate should not assume that public agencypersonnel will make arrangements to have all of thenecessary persons present. Therefore, the advocate

10These requirements reflect modifications madeby the IDEA Amendments of 1997, Pub. L. 105-17 (June4, 1997). IDEA regulations promul-gated prior to the 1997legislation provide that, in the case of a child who has beenevaluated for IDEA services for the first time, the IEP thechild and is familiar with the evaluation results. See 34C.F.R. § 300.344(b) (1997). The U.S. Department of Edu-cation proposed regulations implementing the 1997amendments delete this requirement. See 62 Fed. Reg.55089 (October 22, 1997).

!!!The advocate should not assumethat the public agency will makethe necessary arrangements to

have all of the necessarypersons present.

!!!


!!!The advocate’s decision on who toinclude in an IEP meeting and howto proceed should always be client-

centered and influenced by thefacts of the case.

!!!

should be prepared to notify all persons who shouldbe present. The advocate's decision on whom toinclude in an IEP meeting and how to proceed shouldalways be client-centered and influenced by the factsof the case.

For an initial evaluation and placement, the teammembers should begin by sharing their test resultsand observations. Too often, however, the main focusis on information from persons who have recentlytested the student. The student's teachers are criticalmembers of the team. Be-cause teachers work withthe student on a daily basis, their perspective andknowledge is of particular importance. A teacher canattest to the child's strengths, weaknesses andlearning styles. If the client has a number of teachers,it is useful to hear from all of them. It is usually amust, however, to have present at the IEP meeting theteachers who focus on math and language arts. Withinput from teachers, parents, the child, andevaluators, the team collectively determines thechild's eligibility and disability classification.

The designated agency representative attending themeeting should have the authority to guarantee thatthe programs and services de-scribed in the IEP willbe provided and the authority to commit thenecessary agency re-sources to implement the plan.Who from the agency assumes the role ofrepresentative depends on the student's disability,intensity, and the extent of services required. Ateacher, counselor, principal, or high-rankingadminis-trator may assume the role.

If mandated or critical participants are not inattendance, the advocate has several options topursue. As a general rule, the preference should be tomove forward to complete the IEP. One option is toproceed with the IEP, with the persons who arepresent, while having someone try to get the missingperson(s) to the meeting before it is over. Anotheroption is to complete as much of the IEP as possibleand schedule another date to allow for the missingpersons to have input. Yet another option is torequest to adjourn before starting the IEP andreschedule the conference for another day when allpersons can be present.

The advocate’s decision on how to proceed willdepend on the facts of the case. For example, it maybe necessary to complete the IEP prior to anupcoming delinquency status hearings trial, ordisposition without further delay if it will in any wayassist in getting the desired outcome in thedelinquency case.

As a general rule, the student should attend the IEPmeeting. Even though the parent and student have thefinal decision on whether to attend the IEP, theadvocate should strongly encourage the student’sparticipation. The student’s attendance is of particularimportance when transition services are included inthe IEP because the student’s vocational/careerinterests and post-school preferences must be takeninto account. 20 U.S.C. §1401(30)(C); 34 C.F.R.§300.18(b)(1) (1997). If the student is fourteen yearsold or older (or younger, if appropriate), transitionservices must be dis-cussed at the meeting and thepublic agency must have invited the student to attend.20 U.S.C. §1414(d)(1)(A)(vii); 34 C.F.R. §300.344(c) (1997).

Attendance and notice requirements may bemandatory for younger students in appropriate cases.This is especially true for younger stu-dents who arein the delinquency system, have dropped out ofschool, have high rates of truancy, have extremelylow levels of academic functioning, and have little-to-no interest in, or compatibility with, conventionaleducation set-tings. It is also important for the studentclient to exercise some control over what is takingplace in the education arena. Many student clientswill not have a voice because it is difficult for themto express their transition needs, vocational/ careerinterests, or they are not sure what their interestsreally are. The advocate will need to engage the


student and explore those interests. In addition, theadvocate should prepare the student to communicatesuch interests to the team during the meeting. Oneway to pursue engaging a student is to inquire aboutany jobs the student has already had and ask whetherthe student liked or disliked the jobs. It can also behelpful to discuss any hobbies the student may haveor how the student spends free time. The advocatecan also make arrangements with the public agencyfor the student to participate in career exploration byvisiting some of the vocational schools/centers in thesystem. Such an opportun-ity will allow the studentto see what is available. A vocational assessmentmust be completed and should be helpful indeveloping recommend-ations about the types of jobswhich seem suitable to the student’s strengths,weaknesses, and interests. Despite what thevocational findings are, the advocate should notallow the team to limit the student’s exposure oropportun-ity to investigate certain job experienceswhen the student has expressed an interest in a filedwhich may not “appear” to some team members to besuitable for the student.

A. When parties disagree at the IEP conference

The public agency is mandated to develop andimplement an IEP for a child with disabilities. 34C.F.R. §300.341 (1997). Even though statutory andcase law requires parental participation in an IEP,much is left to the agency’s discretion. There will betimes when the public agency and the parent, alongwith the student, will not agree on what should beincluded in the IEP or how and where it should beimplemented. The public agency should inform theparent(s) of their right to resolve the issues at a dueprocess hearing. The advocate should make everyeffort to help the team resolve differences during theIEP meeting so that the student can begin to receiveall of the desired services as soon as possible.

When disputes are related to any IEP issue, theparties should try to arrange an interim course ofaction. If there is no agreement as to the interimmeasure to be taken and/or the parent decides to file acomplaint, the student would remain in the currenteducational setting, unless the parties agree

otherwise. 20 U.S.C. §1415(j); 34 C.F.R. §300.513(1997). A student who is in a regular education class,would remain there. If the student has already beenidentified, the stu-dent would continue to get servicesunder the existing IEP, in the current placement, untilthe matter is resolved. See 34 C.F.R. Part 300, App.C ¶ 35 for a complete discussion of alternativesavailable when the parties disagree.

Parties may agree with the overall IEP, but dis-agreewith respect to the provision of a related service. Inparticular, parties may disagree on whether a serviceis needed, the frequency of the service, or who willbe the provider. In such a case, the parties can agreeto implement the portions of the IEP not in disputewhile the parties negotiate, mediate, or go to hearingon the disputed issues.

If the parties disagree with the continuum level ofservices (e.g. a resource room versus a self-containedclassroom), pending resolution, the parties can leavethe student in the current place-ment or select one ofthe other options as a tem-porary arrangement for thestudent. In the afore-mentioned example, the studentcould be placed in either the resource room of theself-contained class. This temporary setting wouldconstitute an “interim” placement until resolution ofthe matter. The benefit of an interim placement is, atminimum, twofold. The student begins to receivesome of the appropriate services while decisions aremade as to the appropriateness of the interimplacement itself. Under any of the aforemention-edcircumstances, the advocate with a client who has apending delinquency case will want to opt for aninterim placement. The advocate will then be in aposition to show the court that the client is not onlydisabled and eligible for special edu-cation services,but also that the client is receiv-ing individualizedservices and is making pro-gress towardrehabilitation.

It is good practice to write an education statusmemorandum to the judge in the delinquency case.The memorandum should outline some of the criticalevaluation data, the student’s dis-abilityclassification, the related services, equip-ment, andthe specialized instruction the client is to receivepursuant to their IEP. Such a memo should be written


!!!If no actual placements wereoffered or considered duringthe meeting, there must be a

discussion to determine whena meeting to discuss placement

will be held.!!!

and submitted to the court whether the IEP is final orinterim. In addition, the memo should integrate thespecial education information in a way thatencompasses the following: (1) supports a denial,mitigation, or justification of the client’s involvementin the “alleged” charges; (2) influences the judge todismiss the case or reach a suitable disposition; and(3) specifically sets forth the client’s re-questedrelief. A copy of the IEP or any other educationalreports that will promote the client’s objectivesshould be attached to the memo for the judge’sreview.

The downside of an interim placement is that thestudent may have to change placements after de-veloping relationships with the staff and stu-dents.Transitional times are often difficult for children withspecial needs, but the decisions made by the advocateand client should balance the student’s strengths andweaknesses, reflect the current and long-termobjectives based upon what is at stake for thatstudent.

B. Follow-up to the IEP conference

In many cases, the public agency will come to theIEP conference with a beginning draft of an IEP fromwhich the team will work during the meeting. Theadvocate and client should request their own copiesof the draft as soon as the meet-ing begins. The teamshould not have to share one or two copies. The lawclearly states that “the public agency shall give theparent, upon request, a copy of the IEP.” 34 C.F.R.§300.345 (f) (1997). The advocate and parent willneed their own copies in order to document – duringthe meeting – any additions, modifications, etc. Atthe completion of the meeting, all participants willsign off on the IEP. If the parent disagrees or has aproblem with anything in the IEP, the advocateshould either make an entry on the public agency’sactual document, or should write out on a separatesheet the client’s dissenting opinion. The advocateshould then request that this page be attached andincorporated as part of the IEP document itself. Theadvocate should make and keep a copy of this writtendissent. Parents also have the option of reserving ade-cision on the IEP and taking the time they need toreflect upon it. Further, the advocate must re-quest a

copy of the completed IEP from the publicrepresentative on behalf of the parent/ guardian.

If the document needs to be cleaned up or re-writtento reflect all of the modifications, the ad-vocateshould request delivery of a finalized copy of the IEPby a specified date. The advo-cate should determinewho will be responsible for delivering the document.The advocate must be sure to get the address andphone number of the person responsible fordelivering the IEP. If anything different than whatwas agreed to is in the finalized copy, the IEP willhave to be changed to reflect accurately whatoccurred at the conference, or, if necessary, the teamwill have to reconvene. The parent always has theright to file a complaint. 20 U.S.C. §1415(b)(6); 34C.F.R. §300.506 (1997).

Within twenty-four hours of the IEP meeting, theadvocate should write a follow-up letter to the IEPcoordinator. The follow-up letter should accomplishthe following: state when the IEP is to be received;state any IEP-related agreements between the parties;state the issues that are pending, disputed orunresolved; and state the client’s expectation withrespect to each of the mentioned IEP-relatedconcerns. A courtesy copy of the follow-up lettershould be sent to the IEP coordinator’s supervisor.The follow-up letter may become a critical documentif a due process hearing is necessary later on.

In some cases, it is possible to discuss placementoptions during the IEP conference after the docu-ment is completed. If the public agency proposes aplacement or placement options during the IEPmeeting, the advocate should seek assistance in


scheduling a visit by the parent and student. Theadvocate should ensure that a notice of place-ment isnot issued until the parent has had an opportunity tovisit the programs. It is good practice to maintaincommunication with assess-ment team members priorto the meeting because they often will provide to anadvocate inform-ation regarding the type of programthey think may be appropriate for the client. Opinionson placement options may change as a result of theIEP conference; however, obtaining opinions fromevaluators prior to the IEP meeting does provide theadvocate with an opportunity to visit some programseven before the IEP meeting. Additionally, if theclient already has a desire to attend a particularprogram, the parent may want to inform the publicagency and during the IEP conference make a requestfor that placement.If no actual placements were offered or consider-edduring the meeting, there must be a discussion todetermine when a meeting to discuss place-ment willbe held. The 1997 amendments to IDEA explicitlygrant parents the right to be members of any groupthat makes placement decisions. See 20 U.S.C.§1414(f). The advocate should know which memberof the IEP team is responsible for arranging thismeeting. It is necessary for the advocate to know thisprocess, how this takes place, and when a proposedplace-ment will be discussed. Again, the advocateshould obtain the name, phone number and address ofthe person(s) involved in the place-ment decision.The follow-up letter should in-clude this informationand the advocate’s under-standing regarding theplacement process.

The advocate and parent must always keep in mindthat the least restrictive environment is determinedduring the development of the IEP. The placementproposed is determined by the continuum of services,the contents of the IEP, and is the means by whichthe IEP is carried out. The student is not entitled toreceive any goals, related services, transitionservices, equipment, or professional services if theyare not specified in the IEP document without eitherreconvening the IEP conference, or prevailingpursuant to a hearing.

Chapter

TenThe Special Education Process: Placement

To understand the legal

underpinnings of the placement

process, counsel needs to appreciate

several basic concepts:

the continuum of alternative placements;

the least restrictive environment; and,

with respect to the educational

Written by needs of delinquent children in

Mary G. Hynes particular, the rational for

residential placement.

10-2 Chapter Ten: The Special Education Process: Placement

Upon completion of all necessary evaluationsand the development of an IndividualizedEducational Program (IEP), the school mustissue a notice of proposed placement for thestudent, at least annually, based on the child’sIEP. 34 C.F.R. §300.522 (1997). Whether actingunder the Individuals with DisabilitiesEducation Act (IDEA) or the §504Rehabilitation Act regu-lations, in making theplacement decision, the school must considerinformation from a variety of sources and thedecision must be made by a group of persons,including person knowledge-able about thechild, the evaluation data and the placementoptions. 34 C.F.R. §300.533(a)(1), (3) (1997);34 C.F.R. §104.35(c). The child’s parent mustbe a member of this group. 20 U.S.C. §1414(f)(IDEA). As a general rule, the school mustattempt to propose a placement as close aspossible to the child’s home. 34 C.F.R.§300.552(a)(3); 34 C.F.R. §104.34(a). Inaddition, unless the IEP requires some otherarrangement, the child should be placed in thesame school that he or she would attend if notdisabled. 34 C.F.R. §300.552(c) (1997) (IDEA).To understand the legal underpinnings of theplacement process, counsel needs to appreciateseveral basic concepts: the continuum of alterna-tive placements; the least restrictive environ-ment; and, with respect to the educational needsof delinquent children in particular, the rationalefor residential placement.

I. Continuum of alternative placements

The “continuum of alternative placements” is anIDEA concept, and simply means that schoolsmust have special education available in avariety of settings, both in the context of regulareducation programs and segregated special edu-cation programs. 34 C.F.R. §300.551(a) (1997).Specifically, the regulations require that schoolsmaintain placements for special education stu-dents in regular classes, special classes, specialschools, home instruction, and instruction inhospitals and institutions. 34 C.F.R. §300.551(b)(1) (1997). Additionally, schools must ensurethat supplementary services are available in

conjunction with regular education for specialeducation students. 34 C.F.R. §300.551(b)(2)(1997).

II. The least restrictive environment

In selecting the placement from the continuumof alternatives, the school must select the “leastre-strictive environment” for the student. The“least restrictive environment” requirement isderived from two related provisions, included inthe IDEA statute and both the IDEA and Section504 regulations. The first is that the school shallensure that “to the maximum extent appropriate,children with disabilities. . . are educated withchildren who are non-disabled.” 20 U.S.C.§1412(a)(5); 34 C.F.R. §300.550(b)(1) (1997);34 C.F.R. §104.33(a). The second is that “re-moval of children with disabilities from theregular educational environment occurs onlywhen the nature or severity of the disability issuch that education in the regular educationclassroom with the use of supplementary aidsand services cannot be achieved satisfactorily.”20 U.S.C. §1412(a)(5); 34 C.F.R. §300.550(b)(2) (1997); 34 C.F.R. §104.33(a). The regula-tions also provide that, in selecting the least re-strictive environment, “consideration is given toany potential harmful effect on the child or onthe quality of the services that he or she needs.”34 C.F.R. §300.552(d) (1997). See Lachman v.Illinois Bd. Of Educ., 852 F.2d 290 (7th Cir.1988), cert. denied, 488 U.S. 925 (1988)(Congress has established preference for main-streaming, but mainstreaming preference is onlyto be given effect when appropriate for theindividual child.) Interpreting these sectionstogether, weighing the child’s needs for special-ized attention in conjunction with the right toreceive that attention in regular classes alongsidenon-disabled peers, courts have developed awealth of case law on assessing the least restric-tive environment. In addition, the 1997 amend-ments to IDEA contain express statutory man-dates that supplement existing case law. Thus,for example, IEPs must include a description ofthe special education, related services, supple-mentary services and program modifications that


!!!Regardless of what the current trends

may be, each child must be consideredon an individual basis.

!!!

are necessary to enable the child to be educatedin the regular education classroom, as well asany necessary supports for regular educationteachers. 20 U.S.C. §1414(d)(1)(A)(iii)(III). TheIEP must also justify the extent, if any, to whichthe child will be removed from the regular edu-cation setting. 20 U.S.C. §1414(d)(1)(A)(iv).

Whether a child can be educated within a regulareducation setting, or whether a more restrictivesetting is required, is a highly fact-intensivequestion. Some of the factors the courts considerare: whether the child has been able to makeprogress in a mainstream setting; whether thechild is disruptive to other children in the main-stream setting; and what efforts the school hasmade to enable the child to make progress in aregular education setting. In Moraind v. Grover,755 F. Supp. 243 (E.D. Wis. 1990), the Courtwas persuaded that, absent any evidence of harmto the child be mainstreaming, the child’s oppor-tunities to interact with her non-disabled peers innon-academic settings justified a placement inthe child’s neighborhood high school, ratherthan a segregated setting. In Mavis v. Sobol, 839F. Supp. 968 (N.D.N.Y. 1993), the Court heldthat the school’s program for a child with mildmen-tal retardation, in which the child wasmain-streamed in art, music and gym, was notsuf-ficient under the IDEA’s mainstreaming re-quirement. Instead, the Court found that theschool failed to make adequate efforts to keepthe child in regular class with supplemental aidsand services, although there was no evidencethat the child would be disruptive in the regularedu-cation setting. On the other hand, the Courtin MR v. Lincolnwood, 843 F. Supp. 1236(N.D.Ill. 1994), held that placement in atherapeutic day program was appropriate wherethe student was not benefitting from interactionwith non-disabl-ed peers, the student wasregressing academical-ly, and the student wasdisrupting others.

One of the more recent, and controversial, trendsin special education placement is “inclusion.”“Inclusion” is unlike the traditional concept of“mainstreaming,” where special education

students spend as many hours as possible inregular education, supplemented by special edu-cation services in a segregated setting (such as aresource room). Rather, inclusion seeks toaccommodate the child with a disability entirelywithin the regular education classroom. To ac-complish this objective, schools may providespecial education students with different mater-ials, an in-class aide and computer assistance;they may also provide special training on in-clusion to regular education teachers. The situa-tions in which inclusion is appropriate are grow-ing and changing areas of special education lawand practice. In addition, the support systemsavailable to students are growing and changing.

The Ninth Circuit has developed a four-part testfor determining whether “inclusion” is appro-priate for individual students. In SacramentoCity Sch. Dist. v. Rachel H., 14 F.3d 1298 (9th

Cir. 1994), cert. denied, 114 S. Ct. 2679 (1994),the Court held that in deciding the appropriate-ness of a full-time placement of a special edu-cation student in a regular education class, thecourt should consider the educational benefits offull-time placement in a regular education class,the non-academic benefits of such a placement,the effect the student has on the teacher and theother students in the regular education class, andthe costs of the placement. In Rachel H., theCourt concluded that this test supported theregular education placement of a nine-year-oldchild with mental retardation where the childwas making progress on her IEP goals with theassist-ance of an in-class aide; the child was ableto de-velop her socialization and communicationskills in the regular education setting; there wasno evi-dence that the child’s presence interferedwith either the teacher or the other students; andthe school system’s complaints about costs were


!!!If incarceration in the juvenile case

appears likely, or if the child isalready incarcerated, counsel may

want to offer the court a moretherapeutic alternative which

will provide a structured setting,but will be independent of the

court system.!!!

exaggerated. In Clyde K. v. Puyallup Sch. Dist.,35 F.3d 1396 (9th Cir. 1994), the Court appliedthe Rachel H. test to remove a child with ADHDand Tourrette’s Syndrome from a regular educa-tion setting where the child was making no aca-demic progress and was “socially isolated,” andwhere the student had attacked both school staffand his classmates in the regular educationsetting.

The Third and Eleventh Circuits have adoptedmethods of analysis similar to the NinthCircuit’s.1 It is questionable whether cost con-siderations or the impact the child has on otherstudents are even legitimate factors under theIDEA. Moreover, counsel should be cautiousand investigate any inclusion program offeredby the school to ensure that the program is beingimplemented appropriately with all thenecessary training for staff and supports for thechild in the regular education setting. Absentsufficient train-ing and individualized supportsfor the child in the regular education setting,

“inclusion” can become simply a means to limitservices to special education students. Finally,counsel should heed the precatory words of thecomment to the regulations: “The overridingrule in this section is that placement decisionsmust be made on an individual basis.” 34 C.F.R.§300.552 Comment (1997). In other words, nosingle pro-gram, theory, or philosophy will meetthe needs of all children. Regardless of what thecurrent trends may be, each child must beconsidered on an individual basis.

III. Residential placements

One issue frequently faced by students who areinvolved in the juvenile system is residentialplacement. Counsel may wish to explore thepossibility of residential placement for a juvenileclient through the school system for a variety ofreasons. If incarceration in the juvenile caseappears likely, or if the child is already incarcer-ated, counsel may want to offer the court a moretherapeutic alternative which will provide astructured setting, but will be independent of thecourt system. Alternatively, the juvenile courtmay be considering a residential placementthrough the juvenile system. In that case,counsel may want to use educational advocacyto take a pro-active role in the selection of theplacement, rather than allowing the juvenilecourt to select a placement designed principallyfor juvenile offenders rather than children withdisabilities. These scenarios, as well as others,are described more fully in Chapter Two. In thissection, we will briefly explore the legal basisfor residential placement through the educationalsystem.

The IDEA and §504 regulations specificallyauthorize residential placements for educationalpurposes and provide that such placements,including non-medical care and room and board,must be provided at no cost to the parents. 34C.F.R. §300.302 (1997); 34 C.F.R. §104.33(c)(3). Courts have held that state rules requiringthat parents pay for a part of the child’s residen-tial placement are contrary to the IDEA’s re-quirement that schools provide students with a

1See Greer v. Rome City Sch. Dist., 950F.2d 688 (11th Cir. 1991), opinion withdrawn and re-manded on other grounds, 956 F.2d 1025 (11th Cir.1992), previous opinion reinstated by rehearing enbanc, 967 F.2d 470 (11th Cir. 1992); Oberti v. Bd. ofEduc. of Clementon, 995 F.2d 1204 (3rd Cir. 1993).The Ninth, third and Eleventh Circuit decisions allbuild on the analysis first set out by the Fifth Circuitin Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036(5th Cir. 1989).


!!!Residential placement, for anypurpose, may be unattractive toclients for a variety of reasons.

!!!

free appropriate education. See Parks v.Pavkovic, 753 F.2d 1397 (7th Cir. 1985), cert.denied, 473 U.S. 906 (1985).

The comment to the IDEA regulation indicatesthat the rule applies to residential placements for“educational purposes.” However, neither theregulation nor the comment offers any guidanceon how a residential placement for educationalpurposes can be distinguished from a residentialplacement for non-educational purposes. InNorth v. District of Columbia, 471 F. Supp. 136(D.D.C. 1979), the Court rules that it would notengage in the “Solomon-like task” of parsing outwhich of the child’s needs were educational andwhich needs were non-educational, and directedthe school system to find the child’s residentialplacement, despite the school system’s argumentthat the parent should have sought residentialplacement through the child welfare authoritiesand the juvenile court. Other courts havesimilarly held that where the child’s educationaland emotional issues are intertwined so that thechild requires a comprehensive therapeutic set-ting in order to learn, the school is responsiblefor providing an appropriate residential place-ment. See, e.g., Ash v. Oswego Sch. Dist., 766 F.Supp. 853 (D. Or. 1991), aff’d, 980 F.2d 585(residential placement for educational reasonsjustified where autistic child could notgeneralize from one setting to another, thusrequiring twenty-four hour coordinated care);Babb v. Knox County School System 965 F.2d104, 109 (6th Cir. 1992) (“[t]he concept ofeducation under the Act clearly embodies bothacademic instruc-tion and a broad range ofassociated services tra-ditionally grouped underthe general rubric of ‘treatment’. . . [a]nyattempt to distinguish aca-demics from treatmentwhen defining ‘educa-tional placement’ runscounter to the clear language of the Act”).

One area of potential conflict arises where theresidential placement issue is a psychiatrichospital. Some courts have held that the IDEAdoes not authorize placements in psychiatrichospitals. See Clovis v. California Office ofAdmin. Hearings, 903 F.2d 635 (9th Cir. 1990);

Darlene L. v. Illinois State Bd. of Educ., 568 F.Supp. 1340 (N.D. Ill. 1983). In Clovis, the courtheld that a psychiatric hospitalization wasprimarily for medical problems, apart from thelearning process, and that the psychiatric place-ment was not covered by the IDEA because itwas principally a medical service. In contract, inVander Malle v. Ambach, 667 F. Supp. 1010,1040 (S.D.N.Y. 1987), the Court held that theschool was responsible for full cost of psychi-atric hospitalization for a schizophrenic childbecause the child’s “educational disability couldnot be separated and treated apart from hisemotional and behavioral problems.” Absenttreatment in a psychiatric hospital, “it isextreme-ly doubtful that he could have beeneducated at all.” Id. at 1040.

Residential placements, for any purpose, may beunattractive to clients for a variety of reasons.Perhaps the most important reason is that resi-dential placements are often located at a con-siderable distance from the child’s home andfamily, thus isolating the child and limiting thefamily’s ability to be involved in the child’streatment process. Additionally, because theseplacements are often not easily accessible, theopportunities to monitor the treatment offered bythe placement are limited. Finally, the racial mixof children residing in a residential facility maybe very different from the racial mix of thechild’s home and neighborhood, a fact whichmay cause tension and alienation.

On the other hand, residential placement throughthe educational system may offer a real alterna-tive for children faced with incarceration. Thera-peutic and educational services may be availablein a residential setting that are simply nonexis-tent in a detention facility. In addition, children


who face imminent danger in their own com-munities resulting from their involvement incriminal activities may welcome the chance toescape to a safe place where they can get a freshstart. Additionally, concerns about lack offamily participation and lack of the residentialplace-ment’s accountability for services can beaddressed through advocacy to obtain relief suchas payment for travel expenses for family visita-tion or the appointment of a surrogate parent inthe community in which the residential facility islocated for the purposes of monitoring thechild’s progress. In short, as with any placementdecision, the choice to pursue residential place-ment is highly individual and fact specific.

Chapter

ElevenThe Special Education Process: Due Process Rights

Informed parental consent is

required before a school

conducts an initial evaluation,

before a school provides

special education and related services

for the first time, and before a

school conducts a reevaluation

Written by of the child.

Mary G. Hynes

11-2 Chapter Eleven: Due Process Rights

!!!The Supreme Court has placed at leastas much emphasis on the importance

of the school’s compliance withprocedural protections under the IDEA

as on the substantive standard ofappropriateness of a schools’

educational program.!!!

The Supreme Court has placed at least as muchemphasis on the importance of the school’s com-pliance with procedural protections under the In-dividuals with Disabilities Education Act(IDEA) as on the substantive standard ofappropriateness of a school’s educationalprogram. In fact the Court held that

When the elaborate and highlyspecific procedural safeguardsembodied in Section 1415 arecontrasted with the general andsomewhat imprecise substantiveadmonitions contained in theAct, we think that the import-ance Congress attached to theseprocedural safeguards cannot begainsaid. It seems to us no ex-aggeration to say that Congressplaced every bit as muchemphasis on compliance withprocedures giving parents andguardians a large measure ofparticipation at every stage ofthe administrative process. . . asit did upon the measurement ofthe resulting Individual Educa-tional Program (IEP) against asubstantive standard.

Hendrick Hudson Sch. Dist. Bd. of Educ. v.Rowley, 458 U.S. 176, 205-206 (1982).

The critical procedural protections conferred bythe IDEA are: (1) the opportunity to examinerecords and to obtain an independent educationalevaluation of the child; (2) written prior noticewhenever the school proposes to initiate orchange (or refuses to initiate or change) theidentification, evaluation, educationalplacement, or educational program of a childwith a dis-ability; (3) procedures to protect therights of children whose parents are unknown orunavail-able, or the child is a ward of the State,including the assignment of an individual to actas the child’s surrogate parent for educationalpur-poses; (4) an opportunity to presentcomplaints to a due process hearing; (5) theavailability of mediation to resolve disputes,where both parties agree to participate; and (6)

the maintenance of the child’s currenteducational placement during the pendency ofany proceedings involving a complaintregarding the child’s education. 20 U.S.C.§§1415(b) - (j).1 This chapter will address thesebasic due process rights, with the exception ofdue process hearings, which is the subject of aseparate chapter.2

1As discussed in further detail below and inChapter 10, IDEA’s general maintenance of place-ment provision, 20 U.S.C. §1415(j), does not applyin the context of certain disciplinary actions. See 20U.S.C. §1415(k)(7).

2In addition to the rights conferred by theIDEA, federal courts will enforce additional pro-cedural rights granted by state law. Smith v. UnionSchool, 15 F.3d 1519, 1524 (9th Cir. 1994), cert.denied, 115 S. Ct. 428 (1994); (additional state lawprotections for parents which are not inconsistentwith IDEA are enforceable rights in federal court;state confers right to receive related servicesindependent of special education); Antowiak v.Amback, 838 F.2d 635 (2nd Cir. 1988); (additionalprocedures that pro-tect rights more stringently areenforceable, but those that merely require additionalsteps not required by IDEA are not enforceable.) Seealso Town of Burling-ton v. Department ofEducation, 736 F.2d 773, 789 (1st Cir. 1984), aff’d.,471 U.S. 359 (1985); Johnson v. Independent SchoolDistrict, 921 F.2d 1022, 1029 (10th Cir. 1990);Thomas v. Cincinnati Bd. of Ed., 918 F.2d 618, 629(6th Cir. 1990); Geis v. Bd. of Ed. of Persippany-TroyHills, 774 F.2d 575,581 (3rd Cir. 1985).


!!!Attorneys should file a request for

educational records as soon aspossible after picking up thejuvenile case, regardless of

whether educational advocacyappears necessary.

!!!

I. Records

Parents have the right to inspect and review alleducation records with respect to the identi-fication, evaluation, and educational placementof the child, as well as the provision of a free,appropriate public education (FAPE). 34 C.F.R.§300.502 (1997).3 States may also give the childaccess to educational records, depending on thestudent’s age and the type or severity of thechild’s disability. 34 C.F.R. §300.574 (1997).Students age eighteen or older have an indepen-dent right under the Family Educational Rightsand Privacy Act (“FERPA”), 20 U.S.C. § 1232(g), to access their records. 34 C.F.R. §§ 99.5,99.10. In addition, as an IDEA matter, statesmay opt to transfer all IDEA rights, includingrecords access rights, from parents to studentswhen students reach the age of majority understate law. 20 U.S.C. § 1415 (m).4 The schoolmust respond to a parent’s request for records“without unnecessary delay and before anymeet-ing regarding an IEP or any hearing” but“in no case more than 45 days after the requesthas been made.” 34 C.F.R. §300.562(a) (1997);34 C.F.R. §99.10(a)-(b). The right to reviewrecords also includes the right to have therecords interpreted for the parent as well. 34C.F.R. §300.562(b)(1) (1997); 34 C.F.R. §99.10.The term “education records” is broadly definedto include records which are directly related tothe student and are maintained by theeducational agency. 34 C.F.R. §99.3. Some fewexceptions exist for records which includeteacher records maintained privately by the

teacher, personnel matters, law enforcementmatters, certain types of mental healthinformation related to treatment of students agedeighteen or older, and information concerning astudent after graduation. 34 C.F.R. §99.3.

Attorneys should file a request for educationalrecords as soon as possible after picking up thejuvenile case, regardless of whether educationaladvocacy appears necessary.5 Federal law pro-vides similar rights of access to both regular andspecial education records. 34 C.F.R. §300.562(1997) and 34 C.F.R. Part 99. Attorneys shouldobtain a release from the parent and provide therelease, along with a cover letter identifyingconsult their local school system to determinewhere to submit the request for records. Someschools maintain special education recordsseparately from regular education records; otherschools maintain separate records on the student

3The §504 regulations also require thatparents be given access to records. See 34 C.F.R.§104.36.

4Under §1415(m), added to the law as partof the IDEA Amendments of 1997, states exercisingthis option must continue to provide all requiredIDEA notices to parents as well as student. See 20U.S.C. §1415(m)(1)(A). States may, however, electto terminate the notice of rights of students who havereached the age of majority and are incarcerated in anadult or juvenile correctional institution. 20 U.S.C. §1415(m)(1)(D).

5Of course, in a matter involving a juvenilecase, the attorney also has the option of issuing asubpoena for the records. One should avoid using asubpoena to obtain records, however, if the recordssubpoenaed are not relevant to the hearing. Moreover,counsel should not delay in obtaining educational re-cords; waiting for a delinquency hearing may occasionunnecessary delay in obtaining records. In addition,the attorney may not want to alert the school to theexistence of a juvenile matter through the use of asubpoena. A school official, even a custodian of docu-ments, may be a witness who is hostile to the child’sinterests in a delinquency case; school officials, know-ing of a child’s delinquency involvement, may attemptto suspend or expel the child from school or otherwiseact prejudicially to the child.


in each school attended by the student. Thus,several copies of essentially the same letter maybe necessary to garner and compile all thestudent’s records.

Generally, a request for records should include arequest for any and all records maintained by theschool concerning the student, including but notlimited to: attendance records; progress reports;deficiency notices; truancy notices; notices ofmajor or minor suspensions and expulsions; re-port cards; correspondence to and from parents;awards; commendations; standardized testingresults; and class schedules. If the child is inspecial education, attorneys should also includea request for the following documents: referralsfor evaluations; evaluations; notes from multi-disciplinary team meetings; IEP’s; notices ofplacement; and statements of rights which wereprovided to parents.

II. Independent evaluations

Once all the records have been obtained, theattorney should review them carefully. One iswell-advised to construct a chart of a chron-ology, or both, to summarize the child’s educa-tional history. If the child is not already inspecial education, but has a history of poor per-formance in school, the parent may wish to referthe student to the local school for a specialeducation assessment. See Chapter 7. The parentalso always has the option of obtaining an inde-pendent evaluation of the student at private ex-pense. A privately-obtained evaluation may besubmitted to the school, and the school mustconsider the results of the evaluation. 34 C.F.R.§300.503(c)(1) (1997).6 If the child is tested bythe school and is found ineligible, or has pre-

viously been found ineligible but the parent dis-agrees with the specific test results, then theparent has a right to seek an independent evalu-ation at public expense. 34 C.F.R. §300.503(b)(1997).

The results of the independent evaluation must beconsidered by the school in any decision re-garding the provision of free, appropriate publiceducation (FAPE) to the student and may be pre-sented as evidence at a due process hearing. 34C.F.R. §300.503(c) (1997). The independentevaluation, if done at public expense, must meetthe same criteria which the school uses in its ownevaluations. 34 C.F.R. §300.503(e) (1997). Theparent is not obligated either to notify the schoolof specific areas of disagreement with theschool’s evaluation or to seek the school’s per-mission prior to obtaining the independent evalu-ation at public expense. See Inquiry of Fields,EHLR 213:259 (1989). The school may seek adue process hearing to establish that its evalu-ation was appropriate, and, if the hearing officerdecides in favor of the school, the school does nothave to pay for the evaluation. 34 C.F.R.§300.503(b) (1997).

Finding an independent expert to do the evalu-tion is something of an art form in itself. Localhospitals and universities are a good source forreferrals. If the parent is interested in pursuing aprivate school placement, most private schoolsare aware of professionals in the community whodo independent testing. The child may have atreating pediatrician or counselor who may havesuggestions. Attorneys in the local jurisdictionwho already practice in special education shouldbe able to provide referrals to reputable profes-sionals. Most jurisdictions also have a non-profitorganization designated to act as a protection andadvocacy (P&A) system for persons with dis-abilities.7 These organizations often work with6Under the revised IDEA regulations pro-

posed by the U.S. Department of Education inOctober, 1997, schools would not be required toconsider privately-obtained independent evaluationsunless it meets the same criteria that the school usesin its own evaluations. See 62 Fed. Reg. 55097(October 22, 1997)(proposed 34 C.F.R.§300.502(c)(1).

7An advocate or parent who has difficultlocating the nearest P&A office can contact theNational Association of Protection and AdvocacySystems (NAPAS). People in that office should beable to provide information about the location and


professionals who may also be available to in-dividual attorneys. Some school systems main-tain a list of private evaluators available toparents.

Before retaining any expert, the attorney mustcarefully review the expert’s qualifications withthe expert to ensure that the particular expert isappropriate for the task at hand. For example, ifthe child has been diagnosed as seriouslyemotionally disturbed based on the school’s pro-jective testing, the independent evaluator musthave the necessary qualifications to perform pro-jective testing; usually only a clinical psycholo-gist is qualified to perform this kind of testing.Another important factor to consider in seekingexpert assistance is whether the expert has anyexperience with children from the same racialand socio-economic background as the client.Finally, the attorney should determine whetherthe evaluator has ever testified before as anexpert witness and whether the expert will beavailable to testify about the results, ifnecessary.

III. Notice

Written notice is required a reasonable timebefore a school either proposes to or refuses toinitiate or change the identification, evaluation,or educational placement of a student with adisability, or the provision of a free appropriatepublic education to the child. 20 U.S.C. §1415(b)(3),(c),(d).8 The required content of the noticedepends upon the context in which it is beinggiven. In all circumstances, the notice mustinclude a description of the action proposed or

refused by the school, and the basis for theschool’s decision; a description of any otheroptions that the school considered, and thereasons why those options were rejected; a de-scription of each evaluation procedure, test,record or report the school used as a basis for thedecision; and a description of any other factorsrelevant to the school’s decision. 20 U.S.C. §1415(c). If the notice is being provided in con-nection with an initial referral for evaluation or areevaluation, it must be accompanied by what thestatute calls a “procedural safeguards notice”;otherwise, the notice must inform parents thatthey have protection under the procedural safe-guards of the Act, and notify them of how theymay obtain a description of the safeguards. 20U.S.C. §§ 1415(c)(6), 1415(d). The proceduralsafeguards notice must also be given to parentseach time they are notified of an IEP meeting,and whenever a complaint is filed. 20 U.S.C. §1415(d)(1). The procedural safeguards noticemust be written in easily understandable lan-guage and include a full description of rightsregarding independent evaluations, prior writtennotice, parental consent, access to records, com-plaints and due process hearings, maintenance ofplacement, placement in an interim alternativeeducational setting, placement by parents of chil-dren in private schools at public expense, civilactions and attorneys’ fees. 20 U.S.C. § 1415(d)(2). Notices must be written in language under-standable to the general public and must be pro-vided in the parent’s native language. 20 U.S.C.§§1415(b)(4), 1415(d)(2).9

phone numbers of all state and local P&A offices.

8The regulations implementing §504 alsorequire notice with respect to actions regarding theidentification, evaluation or educational placement ofstudents who need, or may need, special education orrelated services. However, they do not specifywhether the notice must be written, and do not con-tain the explicit content requirements set out inIDEA. See 34 C.F.R. §104.36.

9Notice requirements may prove a source ofconfusion for advocates and schools for the nearfuture. While IDEA and its implementing regulationshave long required prior written notice of school de-cisions, many of the detailed requirements discussedabove were added to the statute as part of the IDEAAmendments of 1997, and took effect on June 4,1997. Prior to that time, these issues were addressed indetail solely through regulation. The pre-existingregulation on this issue, 34 C.F.R. §300.505 (1997),however, is inconsistent with the new statute, and isno longer a good law. New regulations, proposed onOctober 22, 1997, are expected to be finalized in1998.


!!!In assessing the adequacy of thenotice in an individual case, an

attorney should find out from theparent what notice, if any, wasactually received and when it

was received.!!!

The level of scrutiny given a notice variesamong the courts. Some courts have held thatany tech-nical defect in the notice may be curedas long as the notice reasonably apprised theparents of the school’s proposed action and theparents had the opportunity to actuallyinvestigate the proposed placement or program.Smith v. Union School, 15 F.3d 1519, 1525 (9th

Cir. 1994), cert. denied, 115 S. Ct. 428 (1994).Other courts have held that the noticerequirements must be scrupu-lously enforced inorder to assist parents in making an informeddecision and to create a clear written record ofthe school’s program or proposed placement.See Squillacote, 800 F. Supp. 933 (D.D.C.1992).

In assessing the adequacy of the notice in an in-dividual case, an attorney should find out fromthe parents what notice, if any, was actually re-ceived. Schools may fail to provide any noticeor may attempt to provide notice by telephonecon-tact only, a means which is insufficient as amatter of law. If written notice was provided, theattorney should review the notice and compare itwith the statutory requirements. Does the noticeadvise the parent of the parent’s rights, or, whenthe procedural safeguards notice is not required,of the fact that the parent does have rights, andmay obtain a detailed explanation of them? Doesthe notice describe the agency’s proposed actionand all of the evaluations and any other factorsused to justify the proposed action in sufficientdetail that the parent can make an informed deci-sion about the school’s proposal? Or is thenotice merely a “cursory and essentially

meaningless standardized description?” Mckenziev. Smith, 771 F.2d 1527, 1532-1533 (D.C. Cir.1985).

IV. Consent and surrogate parents

Informed parental consent is required before aschool conducts an initial evaluation, before aschool provides special education and relatedservices for the first time, and before a schoolconducts a reevaluation of the child.20 U.S.C. §§1414(a)(1)(C), 1414(c)(3); 34 C.F.R. § 300.504(b)(1).10 If the parent refuses to consent to theevaluation or reevaluation and the school wishesto proceed nonetheless, it may seek mediation ora due process hearing to resolve the dispute, un-less state law provides otherwise. 20 U.S.C. §§1414(a)(1)(C)(ii), 1414(c)(3).11 The consequencesof a parent’s refusal to consent to the initialprovision of special education services are lessclear. Regulations in existence prior to the IDEAAmendments of 1997 provide that under thesecircumstances, too, the school can resort to a dueprocess hearing to override the parent’s withholdof consent. See 34 C.F.R. §§ 300.504(b)(2),300.504(3) (1997). Proposed regulations imple-menting the amended statute, however, delete thisprovision. See 62 Fed. Reg. 55098-55099(October 22, 1998) (proposed new 34 C.F.R. §300.505(b). A parent, within the meaning of theIDEA, means a parent, a guardian, a personacting as a parent of a child, or a surrogate parent.20 U.S.C. §1401(19); 34 C.F.R. § 300.12 (1997).A parent does not include the State if the child isa ward of the state. Id. A “person acting as aparent” includes persons such as grandparents or

10However, consent need not be obtained fora reevaluation if the school can demonstrate that it hastaken reasonable measures to obtain consent and theparent has failed to respond. See 20 U.S.C. §1414(c)(3).

11For example, state law might prohibitevaluation over parental objection, or provide forsome other mechanism for overriding parental wishes.See also, Holland v. D.C., 71 F.3d 417 (D.C. Cir.1995)


!!!In the event the child is living withsomeone other than a parent, the

attorney should determine whetherthat person has legal custody of the

child.!!!

!!!Although federal law explicitly

requires that states have a surrogateparent program, not every jurisdiction

actually has surrogate parents available.!!!

a step-parent with whom the child lives, as wellas persons who are legally responsible for achild’s welfare, including potentially fosterparents. See Note to 34 C.F.R. § 300.13(1997).12 See Inquiry by Hargen, 16 EHLR 738(March 19, 1990); Criswell v. Department ofEduc., 1986-1987 EHLR 558; 156 (M.D. Tenn.1986).

In the event a child is living with someone otherthan a parent (a grandparent or other extendedrelative, for example), the attorney should deter-mine whether that person has legal custody ofthe child. In delinquency matters, thisdetermina-tion may include locating an orderreleasing the child to the person with whom thechild is living. If the person does not have legalcustody, the attorney should inquire whether thechild’s parent has given the person writtenauthority to act on the parent’s behalf foreducational or other purposes. If there is nowritten authority, the attorney should explorewhether the person has been accepted as thechild’s guardian by the school and otherauthorities in the past.

In the event that the identity or the whereaboutsof the parent are unknown, or if the child is award of the state, the school system must appointa surrogate parent to protect the rights of the childin all matters relating to the identification,evaluation, and educational placement of thestudent. 20 U.S.C. § 1415(b)(1)(2); 34 C.F.R. §500.514 (1997).13 The surrogate parent has theright to receive notice and the right to consent, orrefuse consent, to the evaluation and placement ofthe child. The surrogate parent can not be anemployee of a public agency responsible for thecare or education of the child. 20 U.S.C. §1415(b)(2); 34 C.F.R. §300.514(b) (1997). Thesurrogate parent must not have any interestswhich conflict with the interests of the child andmust have the knowledge and skills necessary toensure adequate representation of the child. 34C.F.R. §300.514(c)(1997).

Although federal law explicitly requires thatstates have a surrogate parent program, not everyjuris-diction actually has surrogate parentsavailable. Moreover, despite the law’s clearprohibition, social workers employed by theagency with custody in some instances (e.g., informulating IEPs) in some jurisdictionsparticipate in lieu of the parents. In the event thata child has no avail-able parent and educationaladvocacy would be helpful, the attorney maywish to file a due pro-cess hearing request on thechild’s behalf to force the school to appoint asurrogate, preferably someone the lawyer has

12The revised IDEA regulations proposed bythe U.S. Department of Education in October 1997would permit state law to treat foster parents as“parents” for IDEA purposes if the natural parents’authority to make educational decisions for the childhas been terminated, and the foster parent (1) has an“ongoing, long-term parental relationship” with thechild, (2) is willing to participate in educationaldecision-making, and (3) has no conflict of interest.See 62 Fed. Reg. 55071 (October 22, 1997)(proposed new 34 C.F.R. §300.19.)

13If a surrogate is to be appointed because achild is considered to be a ward of the state, and theparent’s right to make education decisions has nototherwise been terminated under state law, the parentmay be appointed to serve as the surrogate.


selected who meets the general criteria forsurrogate parents. In addition, the failure toprovide surrogate parents for com-mittedchildren has been the subject of class actionrelief in some jurisdictions. See e.g., Ramon H.v. Illinois State Dept. Of Educ., 19 IDELR 12(N.D. Ill. 1992) In situations where the child iscommitted to the state and is placed in a distantresidential facility, the attorney may wish tolocate a surrogate parent for the child in thejurisdiction in which the residential facility islocated. The surrogate parent can serve as animportant source of information about the child,independent of the information the facility pro-vides.

V. The “Stay Put” provision

In the event that the parent disputes the school’sproposed placement or program, the child “shallremain in the then current educational placementof such child,” unless the State or local educa-tional agency and the parents otherwise agree.20 U.S.C. §1415(j); 34 C.F.R. §300.513 (1997).This provision protects the child from inter-ruptions in his or her education while parentspursue their due process rights. Joshua B. v.New Trier Township, 770 F.Supp. 431 (N.D. Ill.1991). The “stay put” rule applies through thedue process hearing stage and any judicialappeals.14 Thus, the provision has been aptlycharacterized as an “automatic injunction” toprevent a change in placement over a parent’sobjection. Honig v. Doe, 484 U.S. 305, 326(1988) (quoting Doe v. Maher, 793 F.2d 1470(9th Cir. 1986)).

Advocates must address tow essential questionswhen invoking the “stay put” provision. First,

what is the child’s “current educational place-ment?” Second, what constitutes a change inplacement sufficient to trigger the “stay put” pro-vision? For most purposes, the child’s “currenteducational placement” will simply be the lastuncontested school the child attended or the lastschool placement ordered by a hearing officer.Zvi D. v. Ambach, 694 F.2d 904 (2nd Cir. 1982).Somewhat more complex issues are presentedwhere the placement is arguably not a school set-ting. In M.R. v. Milwaukee Public Sch., 495 F.Supp. 864 (E.D. Wis. 1980), the school arguedthat day treatment centers for students with men-tal retardation were not “educational placements”because the students were placed and funded atthese facilities by the local Department of HumanServices, rather than the school system. TheCourt disagreed, holding that the treatmentcenters were educational placements within themeaning of the “stay put” provision because thestate educational agency is responsible for alleducational place-ments of students withdisabilities, regardless of which agency deliversthe services. Accord McClain v. Smith, 793F.Supp. 756 (E.D. Tenn. 1989).

With regard to private school placements byparents, if a hearing officer concludes that theparent’s placement is appropriate and theschool’s program is inappropriate, the schoolmust pay for the private placement through theappeals process. Clovis v. California Office ofAdmin. Hearings, 903 F.2d 635 (9th Cir.1990)(school district responsible for cost ofprivate hospitalization as directed by HearingOfficer and District Court although Circuit Courtultimately concluded that the hospital was not thechild’s educational place-ment). Of course, aparent can not simply place a child in a privateschool and then insist on public funding, absent ahearing officer’s determination that the schoolshould be liable, and absent the school’sagreement. Joshua v. New Trier Town-ship, 770F.Supp. 431 (N.D. Ill. 1991). In somejurisdictions, even a temporary private placementmay be considered the child’s “current education-al placement” where the school failed to proposea public placement in a timely manner as required

14The D.C. Circuit Court of Appeals hasheld that “stay-put” applies only through the districtcourt level. See Andersen v. District of Columbia,877 F.2d 1019 (D.C. Cir. 1989). The Sixth Circuitrecently held the same, without analysis, in anofficially unreported per curiam opinion. See Kari H.v. Franklin Special School District, 26 IDELR 569(6th Cir. 1997).


by law. Board of Ed. of City of N.Y. v. Ambach,612 F.Supp. 203 (E.D.N.Y. 1985).

Regardless of whether private or publicplacement is at issue, the stay-put provisionentitles parents who prevail at the due processhearing level to have the favorable placementdecision implement-ed even if the school systemappeals. The favorable decision is considered anagreement between parents and the “State orlocal educa-tional agency” within the meaningof the stay-put provision, entitling the parents toimmediate implementation. See SchoolCommittee of Twon of Burlington v. Dept. ofEduc., 471 U.S. 359, 105 S. Ct. 1996, 2003-03(1985); Clovis, supra, 903 F.2d at 641.15

In determining what constitutes a change inplacement, advocates should be cautioned thatnot every change in an educational placementtriggers the “stay put” provision. ConcernedParents v. New York City Bd. of Educ., 629 F.2d751 (2nd Cir. 1980)(transfer of special educationclasses at one school to substantially similarclasses at other schools in same district did nottrigger “stay put” rule). Rather, only thosechanges that effect a fundamental change in thestudent’s basic educational program allowinvocation of the “stay put” provision. Id.; seealso Lunceford v. District of Columbia, 745 F.2d1577, 1582 (D.C. Cir. 1984)(“stay put” istriggered by a “fundamental change in, or elim-ination of a basic element of the educationalprogram . . .”) In this regard, advocates shouldnot that the termination of all educationalservices by graduation is generally considered tobe a change of placement which triggers “stayput.” See Mrs. C. v. Wheaton, 916 F.2d 69 (2nd

Cir. 1990). Advocates should also note that ifremaining in the current placement would harmthe child and the parent can meet the traditionalcriteria for injunctive relief, the parent may

obtain an order changing the child’s placementdespite the stay-put provision. Cf. Komninos v.Upper Saddle River Board of Education, 13 F.3d775 (3rd Cir. 1994).

Perhaps the most significant aspect of the “stayput” rule for advocates representing childreninvolved in the delinquency system is itsoperation in the context of student discipline. Fora full discussion of this issue, including theimplications of the IDEA Amendments of 1997,see Chapter. 4.

15See also Grace B. v. Lexington SchoolCommittee, 762 F.Supp. 416 (D.Mass. 1991);Blazejewski v. Board of Education of AlleghenyCentral School District, 560 F.Supp. 701 (W.D.N.Y.1983).

Chapter

TwelveThe Special Education Process: Due Process Hearing

A parent is entitled to a due

process hearing to challenge the

school system’s actions at each

stage of the education process

Written by

Mary G. Hynes

& Joseph B. Tulman

12-2 Chapter Twelve: Due Process Hearing

!!!Rather than requesting a series ofpiecemeal hearings, however, abetter strategy is often to let theprocess play itself out and then

raise all the issues in a single hearing.!!!

Without question, the linchpin of special edu-cation practice is the due process hearing. Uni-formly, practitioners have experienced that, forall but the most trivial of disputes, matters areusually best resolved either through a due pro-cess hearing or through negotiations surroundinga due process hearing. One does not accomplishthe client’s objectives simply by attending in-dividualized education program (IEP) meetingsand writing letters to the school system. A dueprocess hearing is often necessary. This sectionwill cover basic due process hearing rights andprocedures and will offer some practical guid-ance on preparing for, conducting, and followingup after, a due process hearing.

First, however, it is important to note 1997amendments to the Individuals with DisabilitiesAct (IDEA) intended to encourage mediation ofspecial education disputes. States or local schooldistricts must make mediation available to re-solve all disputes regarding evaluation, place-ment or the provision of a free appropriatepublic education to a child with disabilities. 20U.S.C. §1415(e)(1). Medication cannot be usedto deny or delay a parent’s right to a due processhearing, and must be voluntary on the part of theparties. 20 U.S.C. §1415(e)(2)(A). However, alocal school system or state agency can, at itsoption, require parents who choose not to medi-ate to attend a meeting with a “disinterestedparty,” whose role it is “to encourage the use,and explain the benefits, of the mediation pro-cess to parents.” 20 U.S.C. §1415(e)(2)(B).Advocates should check state and local rules andpractice to see if this requirement has beenadopted, and, if so, to familiarize themselveswith the procedures in their jurisdiction.1

I. Hearing rights and procedures

The parent is entitled to a due process hearingbefore an impartial hearing officer for anychallenge to the identification, evaluation, oreducational placement of the child, or the pro-vision of free, appropriate public education(FAPE) to the child. 20 U.S.C. §1415(b)(6), (f);34 C.F.R. §300.506(a)(1997).2 In other words,the parent is entitled to a hearing to challengethe school system’s actions at each stage of thepro-cess. Rather than requesting a series ofpiece-meal hearings, however, a better strategyis often to let the process play itself out and thenraise all the issues in a single hearing. Asdiscussed pre-viously, federal law seems toconfer the right to a due process hearingprimarily on parents, guardians, or surrogateparents, rather than on the child. 20 U.S.C.§1415(f). Thus, counsel for a child who fails tosecure the parent’s coopera-tion in theeducational case may be left without a clientwith standing at the due process hearing.

Parents have the following hearing rights:• the right to be accompanied and advised

by counsel and by individuals withspecial knowledge and training with re-spect to the problems of children withdisabilities;

• the right to present evidence, and toconfront, cross-examine, and compel theattendance of witnesses;

1State or local mediation procedures mustmeet minimum requirements set out in IDEAregarding the qualifications of mediators, writtenmediation agreements, confidentiality, and othermatters. See generally 20 U.S.C. §1415(e)(2).

2The regulations implementing §504 of theRehabilitation Act similarly entitle parents to animpartial hearing to challenge actions regarding theidentification, evaluation or educational placement oftheir children. 34 C.F.R. §104.36.


• the right to prohibit the introduction ofany evidence that has not been disclosedat least five working days before thehearing;

• the right to a written, or, at the option ofthe parents, electronic verbatim recordof such hearing; and

• the right to a written, or, at the option ofthe parents, electronic findings of factand decision within forty-five days afterthe school receives the hearing request.20 U.S.C. §1415(h); 34 C.F.R. §§300.508(a) and 300.512(a)(1997).3

Parents also have the right to have the hearingopen to the public and to have the child who isthe subject of the hearing attend the hearing. 34C.F.R. §300.508(b)(1997). The hearing must bescheduled at a time and place reasonably con-venient to the parents and child. 34 C.F.R. §300.512(d)(1997).

The allocation of the burden of proof at due pro-cess hearings varies among jurisdictions as dolocal rules regarding which party has the burdenof going forward. Some jurisdictions allocate theburden of production to the parent and the bur-den of persuasion to the school. Some jurisdic-tions assign both the burdens of production andpersuasion to the school, and some assign bothburdens to the parent. Some jurisdictions assignthe burden to the party challenging the statusquo. See Huefner and Zirkel, Burden of ProofUnder the Individuals with Disabilities Act(1993). Allocation of burden of proof may alsovary depending upon the particular issue beinglitigated. See 34 C.F.R. §104.34(a) (school hasburden of demonstrating that exclusion fromregular education classroom is permissible);Oberti v. Borough of Clementon Sch. Dist., 995F.2d 1204, 1219 (3rd Cir. 1993) (holding same

under IDEA). Given the diversity of possibi-lities, counsel should consult local regulationsand case law to determine which party bears theburden of proof in the specific jurisdiction, andon the specific issue.

Similarly, the rules on witnesses and evidencevary among jurisdictions. Federal regulationsrequire that an independent evaluation obtainedby a parent “must be considered” by the schooland “may be presented as evidence” in a dueprocess hearing. 34 C.F.R. §300.503(c)(1997).Other than this requirement, states may adopttheir own rules on evidence for due processhearings. Strictly competent evidence is general-ly not required, provided that both parties havethe opportunity to cross-examine witnesses. Inthis regard, some hearing officers permit expertwitnesses to testify by telephone – often a signif-icant selling point to busy, reluctant expert wit-nesses. Despite the differences among jurisdic-tions, several basic rules for hearing preparationand conducting hearings apply.

II. Hearing preparation

Although lawyers are often intimidated by spec-ial education proceedings, in fact, due processhearing preparation and due process hearingsinvolve the same skills as a judicial proceeding.Legal analysis of the issues, development of ex-hibits, and witness preparation are all implicat-ed by special education proceedings. Thus,regard-ing the special education hearing, thefollowing remarks simply provide someguidance for lawyers and encouragement toapply the skills they have already developed.

A. Identifying the legal issues

After thoroughly investigating the case, counselmust review all the documents and all counsel’snotes from conversations with persons involvedwith the child, and then, with the federal regula-tions in hand, counsel must determine what

3Note that these regulations, in effect priorto the IDEA Amendments of 1997, do not reflect thenew statutory requirement that parents be provided awritten verbatim record (transcript) unless theychoose to receive an electronic one (customarily inmost jurisdictions, cassette tapes).


issues are present.4 For the purpose ofdeveloping a clear presentation, counsel maywish to divide the issues by category. An outlineis generally a helpful tool at this stage of theanalysis. Oftentimes, cases present issues thatcut across the entire spectrum of specialeducation, involving matters related to aninappropriate or untimely identification of thestudent; an in-appropriate IEP; and aninappropriate resulting placement. For eachissue, counsel should be able to rely onparticular documents and testi-mony and be ableto cite the relevant legal authority. Additionally,each issue should be tied to a claim for specificrelief. This outline should be used as a guide ingathering documents and determining whattestimony will be necessary at the hearing.

B. Filing a complaint and requesting ahearing

The right to an IDEA due process hearing istriggered by the filing of a complaint. 20 U.S.C.§1415(f). Until recently, requirements, if any,regarding the content of complaints were leftexclusively to state law (providing that they didnot burden the IDEA right to a hearing). Nine-teen ninety-seven amendments to the statuteprovide federal requirements for the first time.In addition to the child’s name, address andschool, the complaint must include a descriptionof the “nature of the problem” underlying thecom-plaint, including “facts relating to suchprob-lem,” and “a proposed resolution of theprob-lem to the extent known and available tothe parents at the time.” 20 U.S.C. §1415(b)(7).

C. Preparing documents

The process of gathering and developing docu-ments continues throughout the case. As dis-cussed elsewhere in this manual, counsel mustobtain and analyze all the records on the studentfrom the school system. Counsel may also

obtain the child’s medical records, as well asoutside reports and evaluations concerning thechild. A description of the various records whichcounsel should explore obtaining is included inChapter 7. A discussion of the documentsnecessary to secure certain types of relief isprovided in Chapter 7.

The school records should be maintained inchronological order and counsel should befamiliar with the significance of each document.Using the documents to develop a chronologycan be an extremely useful device both fororganizing voluminous documents andidentifying violations of the child’s rights. Like-wise, a chart comparing the child’s progress oneach year’s IEP can also be a useful tool fordemonstrating a lack of progress, or even adecline in progress (see Chapter 7). Ultimatelythese kinds of visual aids and summaries(assuming they are based on documentation ortestimony) may be admitted as part of the docu-mentation for the due process hearing.

In addition to records, throughout the casecounsel must document each contact with theschool system by contemporaneous correspon-dence. For example, if the school system refusesto permit the parent to participate meaningfullyin the development of the IEP, counsel shouldimmediately write a letter describing the viola-tion of the client’s rights and insist that thematter be rectified. Similarly, if the school isfailing to provide the services required by thechild’s IEP, that fact should be communicated tothe school immediately. The purpose of this kindof ongoing correspondence is two-fold: first, itserves as evidence that the school has failed thechild; and second, it serves as evidence that theschool system was aware of the problem but didnothing about it.5

4State and local regulations give rise toadditional issues. Case law, of course, is anothersource of identifying issues.

5Counsel should cite 20 U.S.C. §1415(b)(3)and 34 C.F.R. §300.504 (1997) whenever appropriateand, based on that provision, require school systempersonnel to explain in writing actions (or inactions)proposed or taken by the school personnel.


!!!As in a child custody case, a

genuine display of emotion by theparent in a special education

proceeding is both appropriateand helpful.

!!!

Ideally, several weeks before the hearing, coun-sel should be deciding what documents will benecessary for the hearing. All documents, with alist of all potential witnesses, must be submittedto opposing counsel FIVE WORK DAYSBEFORE THE SCHEDULED HEARINGDATE. Failure to meet this deadline is generallyfatal to the case. Counsel must also comply withthe new statutory requirement, added in 1997,that at least five business days prior to the hear-ing, that each party disclose all evaluationscompleted by that date and any recommend-ations based upon those evaluations that theparty intends to use at the hearing. 20 U.S.C.§1415(f)(2)(A). If such disclosure is not made,the hearing officer may bar introduction of therelevant evaluation or recommendation withoutthe consent of the other party. 20 U.S.C. § 1415(f)(2)(B).

The outline of the case will help determine whatdocuments to produce. For example, if one issueis the school’s failure to evaluate the student inall areas of suspected disability pursuant to 20U.S.C. §1414(b)(3)(C) and 34 C.F.R. §300.532(f)(1997), then the school’s evaluations andrelated documents, including correspondenceand referrals from outside providers requestingadditional testing, should be produced. Neversimply disclose every document in the file. Sucha practice merely obscures the issues for thehearing officer and may serve to alert opposingcounsel to information which is helpful to theschool’s case. Each document produced with thefive-day letter must be relevant to the issues athand, although it is a good cautionary practice tostate in the letter that the parent reserves theright to rely on any witnesses disclosed by theschool. Thus, counsel must complete a list ofdocuments which are relevant to establishingeither the violations of the client’s rights or theclients’ entitlement to the relief requested.

D. Preparing witnesses

Each special education case may require relyingon the testimony of several kinds of witnesses:lay witnesses, school system witnesses, and out-

side experts. Although due process hearings areless formal than judicial proceedings, the samegeneral rules of witness preparation apply.Counsel must discuss each witness’ testimonywith that witness and must prepare the witnessfor any potential cross-examination. It is notsufficient to simply provide the witness with alist of questions counsel intends to ask. Counseland the witness must work together to developtestimony that will be accurate, complete, andhelpful in achieving the objectives of the case.

In developing testimony with the parent or thechild, counsel should be sensitive to the emo-tional issues involved. Parents often feel angrythat the school system has failed their child andhas ignored their requests for help. Recountingthe school’s failures in the context of a hearingmay make the parents angry all over again.Further, parents sometimes have difficultydescribing limits a child’s disability imposes onthe child’s ability to learn and otherwise partici-pate in school activities. As in a child custodycase, a genuine display of emotion by the parentin a special education proceeding is both appro-priate and helpful. Also as in a child custodycase, however, overly-broad accusations andvilification by the parent are, ultimately, self-defeating in that the parent’s own credibility islikely to be undercut.

Whether the child should testify depends on thecircumstances of each case, and also on thechild’s wishes. Teenagers often have a great dealto contribute by their testimony and may feel asense of vindication and empowerment throughthe hearing process. On the other hand, some


!!!The parent’s case will generallyconsist of the admission of the

parent’s documents, and theparent’s and child’s testimony,any expert testimony, and the

testimony of any helpful schoolsystem witnesses.

!!!

students prefer to avoid the hearing process. Inany event, the presence of the student (appropri-ately dressed for the occasion) can go a longway toward dispelling the school’scharacterization of the child as dangerous orindifferent to school.

In each case, counsel must decide whether tocompel the attendance of school system employ-ees to testify on behalf of the parent. There are avariety of reasons for exercising this option.First, some school system employees are willingto “blow the whistle,” at least in some cases, onthe school itself. For example, a teacher may beprepared to testify that the student has been un-able to make progress in the program providedby the school. A principal may be prepared totestify that there is, in fact, no room in theprogram the school is proposing. Second, simplysecuring the presence of certain school systememployees at a hearing may generate results forthe client. At times, only a face-to-face orderfrom a hearing officer to a principal will preventfuture misconduct by the school administrationtoward the student.

Along with developing testimony for the directcase, counsel should also prepare a draft of crossexamination questions for school system wit-nesses. The names of these witnesses will be dis-closed in the five-day letter produced by theschool system, but generally, counsel will al-ready be familiar with the likely identities andprobable nature of the testimony of the school’switnesses based on counsel’s previous work inthe case. Again, the general rules of witnesspreparation apply. Regarding any unfamiliarperson on the opponent’s list, counsel mustimmediately investigate that person’s relation-ship to the case.

III. Conducting a hearing

Due process hearings are less formal than, butotherwise are not very different from non-juryjudicial proceedings. The hearing opens withsome formal remarks by the Hearing Officerpursuant to the statute and the opportunity to

have the parent’s due process rights read to theparent. Each party then has the opportunity topresent an opening statement, followed by theadmission of documents, eliciting testimony ondirect examination, followed by cross-examina-tion, and, finally, a closing statement. Counselshould remember that in some states the burdenof going forward and the burden of proof do notfall on the same party, or on the party one mightassume.

As with any opening statement, an openingstate-ment in a special education proceedingdescribes what the evidence will show.Typically, the hearing officer will want to hearalso what result the client is seeking and thelegal basis for the client’s claim. Counsel shouldmake reference in the opening statement tospecific documents as they relate to either thelegal violations or the relief requested in theopening statement. Indeed, if the documentsclearly demonstrate that the school system hasfailed to adhere to the IDEA’s proceduralrequirements, the parent may essen-tially movefor summary judgment against the school as apreliminary matter, arguing under the Rowleydecision that the school system can not establishthat its program is substantively appro-priatebecause it has failed to comply with pro-ceduralrequirements.

The parent’s case will generally consist of theadmission of the parent’s documents, and theparent’s and child’s testimony, any experttestimony, and the testimony of any helpful


school system witnesses. The order of witnessesvaries among cases, but a common order is: (1)an independent expert witness or a friendlyschool system witness – to describe the child’scurrent functioning and needs, the child’s failureto make progress in the current program, therequisites of an appropriate program, and thatthe parent’s proposed program or service willmeet the needs of the child; 92) parent – to getthe hearing officer’s sympathies and describe thechild’s difficulties in school, the child’s specialneeds, the school’s repeated failure to meetthose needs, and the basis for the parent’srequest for relief; (3) the proposed serviceprovider – to describe the service or placementavailable for the child. (A further discussion ofexpert testi-mony in special educationproceedings is pro-vided in Chapter 7.)

The school’s case also consists of the admissionof documents and testimony, often by the schoolprofessionals who evaluated the child, the ad-ministrators who made the placement decision,and the principal and teacher in the currenteducational placement. Ordinarily, counsel forthe parent should ignore the temptation to seekto establish that the school’s witnesses are in-competent or indifferent. A better course is toelicit testimony regarding the school profession-als’ lack of familiarity with the child and theschool’s failure to provide the services requiredby the IEP, or, to the extent that services wereprovided, the child’s failure to make progress inthe school’s program despite the provision ofservices.

Finally, as with any closing statement, theclosing in a special education case should be inthe form of an argument, drawing on the law andthe evidence adduced at the hearing to supportthe parent’s claim for relief. Again, counselshould draw the hearing officer’s attention tospecific documents and specific testimony.Closing arguments are also a time when thehearing officer may request clarification fromboth counsel in order to narrow the issues whichneed to be decided. At times, the school systemwill simply concede certain points to the parent.

Rarely should counsel for the parent concedeany issue to the school. At the conclusion ofboth parties’ final statements, the hearing officermay either close the record or leave it open untila specified date for the receipt of written briefsand/or proposed findings of fact and rulings oflaw. A post-hearing brief and/or proposedfindings and rulings can be important tools forfocusing the hearing officer’s attention on thecritical issues, organizing and explaining thelegal significance of the evidence presented atthe hearing, responding to the school’s case, andaddressing any complex, or obfuscated, legalissues that may have arisen. Counsel’s request tosubmit a post-hearing brief and/or proposedfindings and rulings generally should be granted.Parents are entitled to a written determinationwithin forty-five days of making the hearingrequest. 34 C.F.R. §300.512(a) (1997). Localrules may also provide that the hearing officermust issue a written determination within a pre-scribed time, such as ten days, after the hearingso that the hearing and any post-hearing writtensubmissions must be scheduled to give the hear-ing officer sufficient time under the local rulesto issue a decision within the outside time limitof forty-five days set by the federal rules. Thehear-ing officer may extend this deadline at therequest of either party. 34 C.F.R. §300.512(c)(1997).

IV. Follow-up

the end of the hearing does not mean thelawyer’s obligations are over. If the decision isfavorable, counsel must ensure that the decisionis implemented. If the decision is not favorable,counsel and the client must assess whether topursue an appeal. In either case, important tasks,perhaps the most important tasks, are notfinished yet.

Favorable decisions, while always desirable, arenot self-executing. This simple fact often comesas a dismal surprise to both lawyers and clients.The lawyer should provide the decision toaffected parties and other persons and ensure


!!!Not surprisingly, school systems do

not always abide by the hearingofficer’s order, even when repeatedly

pressed to do so by counsel.!!!

that the decision is actually implemented.6

For example, if the hearing officer orders theschool to place the child at the educationalplacement suggested by the parent, the lawyermust make sure that transportation to the newplacement, if necessary, is made available. If thehearing officer directs that an additional servicebe provided in the current educational setting,counsel must ensure that the service provider isnotified of the decision and actually begins toprovide the services.

Not surprisingly, school systems do not alwaysabide by the hearing officer’s order, even whenrepeatedly pressed to do so by counsel. In suchcases, counsel may wish to seek enforcement ofthe hearing officer’s order in a judicial proceed-ing, usually, but not necessarily, in federal court.These types of enforcement actions are mostappropriately brought pursuant to Section 1983of the Civil Rights Act, in addition to the IDEA(and Section 504 of the Rehabilitation Act, ifapplicable). The rationale for invoking the CivilRights Act is that, because the hearing determin-ation is favorable, the parent is not “aggrieved”by the decision of the hearing officer, and thusthe matter is not in the nature of an appeal. 20U.S.C. §1415(i)(2); Robinson v. Pinderhughes,810 F.2d 1270 (4th Cir. 1987). The school’srefusal to obey the final determination of ahearing officer violates the parent’s and the

child’s civil rights.7

In the event of an unfavorable decision, theparent is, by definition, aggrieved, and counselmay pursue an appeal. 20 U.S.C. §1415(i).Whether the appeal in the first instance is to acourt or to a higher administrative body withinthe state’s department of education dependsupon state law. The IDEA gives states the optionof operating either a one- or two-tiered adminis-trative hearing system. See 20 U.S.C. § 1415(f),(g),(i). In a two-tiered system, appeal from thedue process hearing decision in through an im-partial administrative review arranged by thestate department of education, 20 U.S.C. §1415(g), and, ultimately, to either federal districtcourt or a state court of competent jurisdiction.See 20 U.S.C. § 1415(i)(2).8 Aggrieved partiesin a one-tiered system may proceed directly tocourt. Id. The court “shall receive the records ofthe administrative proceedings” and “shall hearadditional evidence at the request of a party,and, basing its decision on a preponderance ofthe evidence, shall grant such relief as the courtdetermines is appropriate.” Id. While not quite a“de novo” review, the review in the IDEA pro-ceedings is broader in scope than the “abuse ofdiscretion” standard in most administrative ap-peals. See e.g., Kerkam v. McKenzie, 862 F.2d884 (D.C. Cir. 1988); Block v. D.C., 748 F.Supp.891 (D.D.C. 1990). Counsel should consult localcase law to determine how local courts havetreated appeals pursuant to the IDEA.

In either an enforcement action or an appeal,counsel is likely to be seeking injunctive relief.In most cases, the traditional four-part test forpreliminary injunctive relief applies. Counselshould consult local case law to determinewhether courts have treated the denial of FAPE

6Similarly, the attorney for (or represent-ative) the school system should take all stepsnecessary to ensure implementation of the hearingofficer’s decision. Counsel for the parent, ever hope-ful, might trust that the other side will implement, but– in this context – “Trust, but verify” is a good rule.

7As previously discussed, parents areentitled to immediate implementation of a favorablehearing decision even if the school system appeals.

8Juvenile courts generally are not statecourts of competent jurisdiction for purposes ofhearing IDEA disputes or appeals.


as, in itself, irreparable harm. See Cox v. Brown,498 F.Supp. 823, 829 (D.D.C. 1980)(“absentinjunctive relief, [the children] will suffer theirreparable harm of lacking each day of theiryoung lives an appropriate education, one that issensitive to their particular disabilities, commen-surate to their levels of understand, and fulfillingtheir immediate needs”). In this regard, counselshould remember that the parent is entitled to anautomatic injunction under the “stay put” pro-vision if the school is seeking to change thechild’s placement. Honig v. Doe, 484 U.S. 305,326 (1988).

This chapter has simply touched on the barefundamentals of due process hearings. Whilelawyers are often intimidated by the prospect oflitigating in a different forum in a specializedarea of law, the principles of all good advocacyremain the same.

Chapter

ThirteenThe Special Education Process: Remedies

The principal private

remedies are as follows:

the provision of related

services by private providers;

private school placement;

compensatory education;

damages and attorneys’ fees

Written by

Mary G. Hynes

& Joseph B. Tulman

13-2 Chapter Thirteen: Remedies

!!!As a practical matter, attorneys

representing children withdisabilities should ensure that

the child receives all the serviceswhich the student needs, regardless

of whether the school has thepublic resources available or not.

!!!

In a sense, this entire manual is about remediesavailable from the local public school system forstudents with disabilities. The right to a free,appropriate public education (FAPE), inclusiveof the rights to be identified and evaluated bythe school, to have an educational programdesigned by the school to meet one’s uniqueneeds, and to have an educational placementcapable of implementing one’s individualprogram, are all, in themselves, remedies. Thischapter, however, is principally about privateremedies in those cases where the school fails toprovide an appropriate public education. Theprincipal private remedies are as follows: theprovision of related services by privateproviders; private school placement;compensatory education; and attorneys’ fees.

I. Some general strategic considerations

As a practical matter, attorneys representingchildren with disabilities should ensure that thechild receives all the services which the studentneeds, regardless of whether the school has thepublic resources available or not. While seekingout private providers can be time consuming andrequires creativity, counsel should not becontent with accepting the limitations imposedby the school system’s resources. A successfulargument that the school has failed to provideFAPE and a successful demand that the schoolbe required to provide FAPE in the future maybe in-sufficient to protect the client’s interest.Unlike other areas of the law, special education

practice requires that counsel not only hold theschool system accountable to the legal standard,but also that counsel develop remediesindependent of the school in order to meet theneeds of clients.1

While “it seems clear beyond cavil that ‘appro-priate’ relief would include a prospective injunc-tion directing the school officials to develop andimplement at public expense an IEP placing thechild in a private school,” as a practical matter, agreat deal of the case law involves the school’sobligations to reimburse the parents for costs theparents have already incurred as a result of theschool’s failure to provide FAPE. See, e.g.,School Comm. of the Town of Burlington,Massachusetts v. Department of Educ. of theCommonwealth of Massachusetts, 471 U.S. 359,370 (1985). Most clients involved in the delin-quency system, however, do not have sufficientcash on hand to pay for private services up front.As a result, counsel seeking payment for privateservices will ordinarily need to pursue one oftwo strategies. The first, and most preferablestrategy, is to make a contingency arrangementwith the private provider to provide servicesimmediately in exchange for counsel’s agree-ment to seek reimbursement for the providers’expenses at a due process hearing. This strategyis preferable because it prevents delay in theprovision of services, it gives the service pro-vider amply time before the hearing to developfamiliarity with the child, thereby improving theservice provider’s testimony; and once serviceshave been initiated, hearing officers are loathe todisrupt services which are benefitting the child.Many private providers, however, are leery ofthe financial risks associated with a contingencyagreement. This hesitancy may be more

1This discussion concerning counsel’sseeking private resources, including placement forchildren in private schools, is not an endorsement ofthe proposition that a private service or privateschool is the only remedy or even the best remedy inevery case in which the public school system fails toprovide FAPE. Each case is different. Each client hasdifferent needs and makes unique choices.


pronounced if the child has a history of failingor refusing to participate in service delivery.

The other alternative is to seek in a due processhearing an order against the school for futurepayment of private services. This strategy hasthe advantage of being a fairly low-riskproposition for the service provider, who merelyhas to testify at the hearing about the servicesthey provide, generally, and the services theywould provide to the child, specifically, if theschool system were ordered to pay for theservices. As a result, private providers whorefuse to accept the risk inherent in acontingency arrangement may nonetheless agreeto participate in a hearing for prospective relief.The difficulties with this strategy are that itdelays services to the child, it gives the schoolsystem more time to develop a program of itsown which, if inappropriate, counsel must defeatat the hearing; absent direct experience with thechild, the private service provider is not veryknowledgeable about the unique needs of thechild.

Attorneys should consider the private resourcesavailable in the local jurisdiction. Is there ahospital or a university or other professionalgroup that could be a source of information onprivate providers of related services? Is there alisting of private, special education schoolsavailable? What summer programs or individualtutoring services exist in the area? Whilegenerating information on these kinds ofresources may be labor intensive, the result willbe that children will have more options open tothem and will not be constrained by the lack ofresources in the public school system.

II. Private related services

Related services are incorporated into an in-dividualized educational program’s (IEP) assupplementary services to enable the child tobenefit from special education. 34 C.F.R. §300.16 (1997). For example, a child who isseriously emotionally disturbed may not be ableto learn without psychological counseling. Thus,the IEP may require that the child receive psych-

ological counseling to address the child’s emo-tional needs in addition to special educationservices for the child’s academic deficiencies.Due to the chronic lack of resources in schools,however, the school may fail to provide thechild with the counseling required by the IEP. Insuch cases, the parent may seek to have theseservices provided by private providers at theschool’s expense.

Courts have ordered that public schools pay formany kinds of privately provided, related ser-vices where the school has failed to provide thenecessary services itself. One frequentlyrequired related service is counseling. In Max M.v. Illinois State Bd. of Ed., 629 F.Supp. 1504(N.D. Ill. 1986), the Court ordered that theschool pay for the child’s private psychotherapy,subject to some cost limitations, where theschool failed to provide him with counseling asrequired by the student’s IEP. Similarly, inVander Malle v. Ambach, 667 F.Supp. 1015(S.D.N.Y. 1987), the Court required that theschool reimburse the parent for psychotherapyand other services the child received with in ahospital setting.

Another common related service is transport-ation to and from the educational program.Courts have often directed that schools pay thebill for private transportation services where theschool has failed to provide the child with trans-portation itself. See Northeast Cent. Sch. Dist. v.Sobol, 584 N.Y.S.2d 525 (N.Y. 992) (affirmingorder directing school to reimburse parents forcost of transportation as a necessary related ser-vice). In addition to ordering payment for trans-portation, courts have ordered that schools paythe cost of a parent’s lodging that is associatedwith the child’s placement. In Union School v.Smith, 15 F.3d 1519 (9th Cir. 1994), cert. denied,513 U.S. 965 (1994), the Court held that theterm “related services” included the cost oftransportation and lodging for both the parentand the child near the special education dayschool where the school was not within dailycommuting distance from the parent’s home.Similarly, in Ojai Sch. Dist. v. Jackson, 4 F.3d1467 (9th Cir. 1993), cert. denied, 115 S. Ct. 90


!!!In addition to counseling and

transportation, related servicesmay include a variety of

therapies, such as physicaltherapy, occupational therapy,and speech/language therapy.

!!!

(1993), the Court ordered that the school pay“caretaker” fees to the grandparents of a deaf,blind and developmentally disabled studentwhere the grandparents resided within dailycommuting distance to the only appropriatefacility for the child.

In addition to counseling and transportation,related services may include a variety of ther-apies, such as physical therapy, occupationaltherapy, and speech/language therapy. Again, ifthese services are necessary for the child tobenefit from special education and the schoolfails to provide the services, parents may seek anorder directing that these services be providedprivately at public expense. See Rapid City Sch.Dist. v. Vahle, 733 F.Supp. 1364 (D.S.D. 1990),aff’d, 922 F.2d 476 (directing school to reim-burse parents costs of private occupationaltherapy); accord Das v. McHenry Sch. Dist., 20IDELR 979 (N.D.Ill. 1994) (requiring school toreimburse parents for privately-provided addi-tional occupational therapy services where hear-ing officer concluded that the amount of occupa-tional therapy provided by school was insuffi-cient to meet child’s needs). See also, Johnson v.Lancaster-Lebanon Intermediate Unit, 757 F.Supp. 606 (E.D. Pa. 1991) (ordering reimburse-ment for private speech therapy where hearingofficer found that child needed three times asmuch speech therapy as the school was actuallyproviding).

Tutoring services are not generally considered“related services” because tutoring is academicinstruction itself; nevertheless, courts haveordered that parents be reimbursed for special

education tutoring services, as a substitute forspecial education, where the school has failed toprovide FAPE. Thus, in W.G. v. Target RangeSch. Dist., 960 F.2d 1479 (9th Cir. 1992), theCourt ordered that the parents be reimbursed forthe cost of private tutorial services where theschool failed to develop an appropriate IEP forthe student. The Court agreed with the parentthat the school had failed to provide the childwith any special education services and thatreimbursement for privately-obtained specialeducation tutoring was an appropriate remedybecause, under the circumstances, the parentswere entitled to seek a special education place-ment. Of course, the child must actually beeligible for special education in order for a courtto conclude that reimbursement for private tutor-ing services provided during the period theschool failed to provide FAPE is an appropriateremedy. Hiller v. Bd. of Ed. of Brunswick, 743F.Supp. 958 (N.D.N.Y. 1990) (parents not en-titled to reimbursement for private tutorial ser-vices where child not eligible for special educa-tion.)

III. Private placementA. Legal entitlement to privateplacement

The single most sought after, and most oftencontested, remedy is private school placement.In short, the public school system may be liablefor private school tuition for an appropriateprivate facility when it fails to propose anappropriate public special education placement.In Burlington v. Mass. Dept. of Ed., 471 U.S.359 (1985), the Supreme Court held that theIDEA confers the power to order schoolauthorities to reimburse parents for theirexpenditures on private special education if thepublic placement offered by the school system ininappropriate. The Court expressly rejected theeducation department’s argument that tuitionreimbursement was the equivalent of monetarydamages, holding instead that reimbursementwas a form of injunctive relief because it“merely requires the Town to belatedly payexpenses it should have paid all along and wouldhave borne in the first instance had it developed


a proper IEP.” Id. at 370-71. See, also, UnionSchool v. Smith, 15 F.3d 1519 (9th Cir. 1994),cert. denied, 513 U.S. 965 (1994): NortheastCentral Sch. Dist. v. Sobol, 584 N.Y.S.2d 525(N.Y. 1992); Max M. v. Illinois Bd. of Ed., 629F.Supp. 1504 (N.D. Ill. 1986) (giving Burlingtonretroactive application).

After Burlington, there was considerable conflictamong the Circuits regarding whether parentscould obtain reimbursement for private schoolplacements where the private school had notbeen approved by the state as a special educationfacility. However, the Supreme Court resolvedthis issue in 1993 in it decision in FlorenceCounty Sch. Dist. v. Carter, 510 U.S. 7 (1993).In Carter, the Supreme Court held that tuitionreimbursement for a unilateral placement byparents in a private school is an appropriateremedy where the public school fails to providean appropriate public placement, even where theprivate school selected by the parents was not onthe state’s list of approved private schools.Specifically, the Court explicitly rejected theschool system’s argument that parental place-ments must meet the state education standards.Instead, the issue is whether the program offeredby the school selected by the parents offers anappropriate education for the child asdetermined on a case-by-case basis before ahearing officer or a court. Id. at 366.

Reimbursement for private placement firstemerged through case law, as a judiciallycreated remedy; Burlington held that IDEAlanguage authorizing courts to award“appropriate” relief2 endowed them with broadequitable powers to fashion remedies, includingtuition reimbursement.3 The IDEA Amendments

of 1997 brought tuition reimbursement into thestatute itself for the first time. The statute nowimposes a number of procedural requirementsthat parents must follow before removing theirchild from the public school. See 20 U.S.C.§1415(a)(10)(C) (iii), (iv).4 Failure to do so mayresult in a reduction or denial of reimbursement.Id.5

2See 20 U.S.C. §1415(i)(2)(B)(iii), formerlycodified at 20 U.S.C. §1415(e)(2).

3In the years following Burlington, itgenerally was agreed that due process hearingofficers have this authority as well. The 1997amendments to IDEA explicitly provide forreimbursement awards by hearing officers. See

U.S.C. §1412(a)(10)(C)(ii).

4These include rejecting the school’sproposed placement at the most recent IEP meetingprior to the removal, including stating their concernsand their intent to enroll the child in a private schoolat public expense, OR giving written noticecontaining all of this information 10 business daysprior to re-moving the child from the public school,and cooperating with a school’s request to evaluatethe child if made prior to the removal from the publicschool. 20 U.S.C. §1412(a)(10)(C)(iii).Reimbursement may also be reduced or denied upona judicial finding of unreasonableness with respect toactions taken by the parents. 20 U.S.C.§1412(a)(10)(C)(iii0(III). Reimbursement cannot bereduced or denied for failure to give the requirednotice if the “parent is illiterate and cannot write inEnglish; . . . compliance [with the noticerequirement] would likely result in physical orserious emotional harm to the child; . . .the schoolprevented the parent from providing such notice; orthe parents had not received notice, pursuant to 20U.S.C. §1415, or the notice requirement . . .” 20U.S.C. §1412(a)(10)(C)(iv).

5The amended statute also includes languagethat may cause confusion in some cases. The Actnow states that “[i]f the parents of a child with adisability, who previously received special educationand related services under the authority of a publicagency, enroll the child in a private . . Schoolwithout the consent of or referral by the publicagency, a court or a hearing officer may require theagency to reimburse the parents for the cost. . . If thecourt of the hearing officer finds that the agency hadnot made a free appropriate public educationavailable in a timely manner prior to thatenrollment.” 20 U.S.C. §1412(a)(10)(C)(ii)(emphasis added). The emphasized lang-uage may lead some school attorneys to contend thatreimbursement is not available unless a child has al-


!!!In some cases, children become“behavior problems” only after

school personnel have ignored foryears the children’s learning

disabilities.!!!

!!!While procedural failing alone should

be sufficient to establish that theschool’s placement is inappropriate,counsel should also be prepared to

argue specific prejudice to the childresulting from the procedural errors

and the substantive deficienciesprogram.

!!!

There are numerous ways to pursue a privateplacement, but the fundamental legal strategy isalways the same: to establish that the publicschool has failed to provide FAPE and theprivate placement proposed by the parent isappropriate to meet the child’s needs.

B. Strategies for attacking publicplacement

There are several methods to defeat the publicschool’s claim that it has provided FAPE. Aparent may be able to establish that the publicplacement is inappropriate because the schoolfailed to adhere to the procedural requirementimposed by the Act and, therefore, the resultingplacement is fatally flawed under the Rowleydecision. See Union School District v. Smith, 15F.3d 1519 (9th Cir. 1994), cert. denied, 513 U.S.7 (1993) (failure to provide valid noticerendered proposed placement inappropriate), butsee, Max M. v. Illinois State Bd. of Ed., 629

F.Supp. 1504, 1517-1518 (N.D. Ill. 1986)(failure to provide written notice of rights wasnot fatal where parents participated indeveloping educational program); and Hiller v.Bd. of Ed. of Brunswick Cent. Sch. Dist., 743F.Supp. 958, 970 (N.D.N.Y. 1990) (proceduralfailings did not result in denial of FAPE whereparents were “thoroughly involved” ineducational planning for child). Whileprocedural failings alone should be sufficient toestablish that the school’s placement isinappropriate, counsel should also be preparedto argue specific prejudice to the child resultingfrom the procedural errors and the substantivedeficiencies of the program.

To establish that the school’s proposed place-ment is substantively deficient, counsel may takeany one of, or a combination of, severalapproaches. One alternative, often the case withchildren involved in the delinquency system, isthat the child has failed to make sufficient, orany, progress in the public school’s program. InOjai Unified School v. Jackson, 4 F.3d 1467 (9th

Cir. 1992), cert. denied, 115 S. Ct. 90 (1993),the Court held that a private school placementwas warranted where the child made little, ifany, progress on meeting his IEP goals in thepublic placement over a period of seven years.Similar-ly, in Straube v. Florida Union FreeSchool, 801 F.Supp. 1164, 1177 (S.D.N.Y.1992), the Court held that when “educationwithin the regular school system is not effective,as clearly it was not in this case, then a privateplacement must be considered by the

ready received special education services, thuseliminating, for example, cases where parent andschool disagree over the appropriateness of aproposed initial placement, or there is undue delay ininitiating ser-vices after an initial determination ofeligibility, or where a school fails to timely providean initial evaluation. This view is incorrect. The 1997revision of IDEA retained the language cited inBurlington and Carter as endowing courts with broadequitable powers to fashion relief. See 20 U.S.C.§1415(I)(2) (B)(iii). While the provisions of 20U.S.C. §1412(a) (10)(C)(ii) may apply to thosesituations described by the emphasized language, theprovisions of 20 U.S.C. §1415(i)(2)(B)(iii), asinterpreted in Burlington and Carter, applies to therest.


!!!Instead of truancy being the cause ofacademic difficulty, it is at least as

likely that the child’s academicproblems caused the refusal to

participate in school.!!!

educational agencies.” In this regard, courtshave held that the practice of “socialpromotion,” i.e., passing a child from grade tograde for social reasons related to the child’sage, even if the child is not making aca-demicprogress, does not constitute academic progressunder the IDEA.6

To establish a lack of progress from year to yearin the public school program, counsel shouldcarefully examine the school’s documentsregarding the child. For a child who is already inspecial education, the IEP’s for each year inspecial education will be critical evidence. Thestandardized testing reflecting the child’s currentfunctioning which is done each year may revealno progress; for example, the child may remainat the first or second grade reading level forseveral years in a row. Another good guide is tocompare the IEP goals and objectives for eachyear. If the goals and objectives do not change,that generally means the child has made no pro-gress during the year. If the student is meetingthe goals and objectives and they are changingevery year, insufficiently rigorous IEP goals andobjectives may render the placement substan-tively inappropriate nonetheless. Thus counselshould also compare the child’s progress andeducational achievement with the standards setin the general curriculum or elsewhere for whatstudents of similar age and grade level are ex-pected to know and be able to do. For a childwho is not in special education, counsel shouldreview the child’s progress reports to determineif the child has consistently made substandardgrades and should also ascertain whether thechild has ever been retained and, if so, howoften.

School system personnel commonly argue that achild’s failure to progress in school is attribut-able to the child’s truancy rather than to any in-adequacy of inappropriateness in the educationalprogram. In other words, school system person-nel argue that the program is appropriate but thechild refuses to participate. Under such circum-stances, counsel should argue that, if a child isnot progressing academically, school systempersonnel must modify the child’s program.Moreover, children’s academic difficulties oftenprecede truancy issues. Instead of truancy beingthe cause of academic difficulty, it is at least aslikely that the child’s academic problems causedthe refusal to participate in school.

Another method of attacking the school’s pro-posed placement is to establish that the proposedplacement can not implement the child’s IEP. 34C.F.R. §300.552 (1997). There are several fairlysimple but effective methods of demonstratingthat a placement can not implement the child’sIEP. First, the placement may be overcrowdedbased on the State’s standards forstudent:teacher ratios in various educationalsettings. Generally speaking, the more intensivethe level of special education services, thesmaller the student:teach-er ratio. If the child’sIEP designates the child as needing a small,special education classroom (or counsel canestablish the child’s need for a smallstudent:teacher ratio independent of the IEP),but the only public alternative is alreadyovercrowd-ed, a private placement with a smallstudent: teacher ratio may be justified.

Alternatively, the public placement may nothave access to all the necessary related services.

6See also Chapter 6, discussing the conceptof educational “benefit” and progress under IDEA.


!!!In order to prevail, counsel will need to

present information from the parentand child, from the parent’s proposed

placement, as well as, in many circumstances, and independent

expert.!!!

Many public placements do not haveunrestricted access to the services of a speechpathologist or a psychologist but must share theservices of a limited number of professionalswith a number of schools. Thus, for a child whoneeds counsel-ing three or four times a weekmay not get this service in a public placementwhere the psychol-ogist only visits the schoolonce or twice a week and already has a highcaseload. As a result, a private placement maybe the best alternative. Additionally, somestudents, particularly students with behaviorproblems, may require a comprehensivebehavioral support program to be incorporatedinto all aspects of their educationalprogramming. Such programming may not beavailable in a public school setting.

At times, a parent’s or a child’s hostility to thepublic school’s program may render the publicplacement inappropriate. In Board of Educ. ofCommunity Consolidated Sch. v. Illinois Bd. ofEduc., 938 F.2d 712 (7th Cir. 1992), cert. denied,502 U.S. 1066 (1992), the parents disagreedwith the school’s proposed placement for theirson, characterized as “behavior disordered.” Inthe course of developing an educational plan forthe student, the parents became extremelyhostile to the school and, as a result, hostile toany placement the school proposed. As a resultof this “parental hostility,” the court concludedthat “the parents’ attitudes were severe enoughto doom any attempt to educate” the student atthe school’s proposed placement. Id. at 716. Seealso Greenbush School Committee v. Mr. andMrs. K., 949 F.Supp. 934 (D. Me. 1996)(parental hostility and child’s fear of the schoolin which placement was proposed would preventhim from receiving educational benefit if IEPwere implemented there). The converse isequally true. A history of suspensions or otherdisciplinary actions against the student for con-duct related to the student’s disability may wellestablish that the public school placement is in-appropriate for the child.

In some jurisdictions, local rules and case lawmay provide a quick procedural mechanism forobtaining a private placement. In the District of

Columbia, a “Conciliation Agreement” betweenthe District of Columbia Public Schools and theU.S. Department of Education, enables parentsto obtain private services at public expensevirtually automatically where the school fails toprovide the services publicly within a time frameset by a hearing officer. In New York City, aconsent decree enables parents to obtain aprivate placement at public expense if the publicschool fails to propose a placement within sixtydays of the parents’ request. Zvi D. v. Ambach,694 F.2d 904, n. 6 (2nd Cir. 1982); Bd. of Educ.of City of New York v. Ambach, 682 F.Supp. 972(E.D.N.Y. 1986). Consequently, counsel shouldbecome familiar with any uniquely local rightsconferred on parents.

C. Strategies for demonstratingappropriateness of private placement

If the school system is unable to meet its burdenof proof to establish that its placement is appro-priate, a parent does not automatically or neces-sarily win the parent’s preferred private place-ment. Parents still have the burden of showingthat their proposed placement is capable ofmeet-ing the needs of the child. Consequently,counsel should always be prepared to comeforward with evidence supporting theappropriateness of the parents’ proposedplacement. In the absence of such evidence, thehearing officer may well simply order the schoolsystem to propose a difference placement. Inorder to prevail, counsel will need to presentinformation from the parent and child, from theparent’s proposed placement, as well as, in manycircumstances, an indepen-dent expert.


!!!In addition to preparing the parentand the child, counsel also mustprepare to elicit private school

personnel – usually by the admissionsdirector – to testify, and, if the child’sfunctioning and needs are in dispute,from an independent expert, as well.

!!!

D. Documents

In addition to all the documents upon whichcounsel might rely to defeat the public school’splacement, counsel must also obtain and submitto the hearing officer documents relating to theprivate program. Most private placements havebrochures or other materials that describe theeducational program offered by the facility andthe population of students served. Additionally,counsel should attempt to secure a letter ofacceptance from the private school, indicatingthat the admissions staff have met with thestudent, have reviewed the student’s educationalrecords and testing results, and that the studenthas been accepted as appropriate for the pro-gram. It is often helpful for the admissions staffto include a brief statement describing why theschool believes its program is appropriate for thestudent. Some schools will be soaccommodating as to allow counsel to reviewand suggest re-visions to a draft of theacceptance letter before it is finalized.

If counsel is also relying on an independenteducational consultant or a psychologist, counselshould obtain that person’s resume as well as, insome circumstances, a written report. Theexpert’s resume should establish the individual’scredentials as an expert – usually in the areas ofspecial education placement and programmingor diagnosis and treatment. Whether a writtenre-port is helpful depends on whether the natureof the child’s disability and need for services isdisputed. In addition, counsel must analyzewhether a report will do more to assist the hear-ing officer or more to assist opposing counselprepare for the hearing. If counsel is satisfiedthat the public school’s evaluations and IEPsufficiently describe the child’s needs and thenecessary educational program, then an addi-tional report is probably cumulative. If the eval-uations or IEP are deficient, then counsel maywish to consider having the expert prepare awritten report for the hearing officer to review injuxtaposition with the school’s documents.Unless the parent’s program is truly unique, theexpert should not make a specific placementrecommendation in the report but should des-

cribe the child’s needs, functioning, and, ingeneral, the type of program the child needs inorder to make educational progress. In addition,the report must be couched in the legal terms of“appropriate” and “necessary” and never employthe phrases “the best program” or the programwhich will “maximize potential.”

E. Testimony

The testimony should include at least theparent’s or the child’s impressions of the place-ment as well as testimony regarding the place-ment. If the parent and the school disagree con-cerning the child’s level of functioning andneeds, then counsel should consider securing thetestimony of an independent expert, as well. Theparent’s testimony generally includes the child’seducational history, including a description ofthe child’s failure to make progress in the publicsetting, and the parent’s impressions of theprivate program. The parent actually needs tovisit the private program in order to be able totestify effectively. Depending on the child’s age,the child may also testify regarding why theprogram is appropriate. Some juvenile clientsfind testifying to be an empowering experience.

In addition to preparing the parent and the child,counsel also must prepare to elicit private schoolpersonnel – usually by the admissions director –to testify, and, if the child’s functioning andneeds are in dispute, from an independentexpert, as well. The testimony of the admissionsdirector should include the following elements:the indi-vidual’s education, work experience and


!!!During the testimony, counsel shouldencourage the expert to use specific

examples and make specificrecommendations drawn from theexpert’s experience with the child.

!!!

current responsibilities; familiarity with thechild; de-scription of the child’s currentfunctioning and needs (if in dispute); generaldescription of the type of program offered by theprivate school; more specific description of howthe private school will meet the child’s needs;and the private school’s decision to accept thechild and the date on which the child can enroll.Many, if not most, private school admissionsdirectors will have had previous experiencetestifying. Counsel should not hesitate,specifically when just beginning this kind ofpractice, to seek the assistance of this witness indeveloping testimony.

Whether an independent expert is necessarydepends on the nature of the dispute with theschool system. In some cases, school systemrepresentatives do not genuinely challenge theparent’s claims regarding the child’s educationalneeds and, in essence, may be signaling that theparent need only to establish that the parent’sproposed placement is appropriate. In such acase, the parent may not need to engage anexpert witness (in addition to a representative ofthe parent’s proposed placement who can testifyabout that placement and its ability to implementthe IEP).

In cases characterized by more fundamentaldisputes regarding the child’s educational needsand the appropriateness of proposed placements,counsel should seriously consider securing ex-pert testimony to buttress the parent’s case. Aparent may seek, for example, a 100 percentspecial education day program, while schoolsystem representatives contend that the childrequires residential treatment. In another case,by contrast, school system representatives mayargue that the child needs a part-time specialeducation program within a neighborhoodschool, but the parent may contend that a full-time program is appropriate. Despite the parent’scontention that the child is not making progressin a current program, school system personnelmay argue that the program is appropriate. Indisputes of these sorts, counsel should probablyengage expert support and prepare the expert totestify.

In engaging an expert, counsel has severalfundamental responsibilities. One responsibilityis arranging for payment.7 Counsel also mustensure that the expert is actually competent totestify about the matters in dispute. Counselmust ascertain whether the expert will be avail-able to testify and will not just write a report.Counsel also must make sure that the expert hasreviewed all of the documents and that theexpert has sufficient personal knowledge of thechild – through, to the extent necessary,interviews, testing, and observations – to testifypersuasively.

The actual testimony should include at least thefollowing elements: the witness’ qualifications(including whether the witness has testifiedbefore); familiarity with the child (includingpersonal experience with the child); a descrip-tion of the child’s current functioning and needs(including any independent testing done by theexpert as well as a critique of the school’s test-ing); the expert’s opinion that the student hasfailed to make progress in the setting that theparent is challenging and the basis of the opin-ion; the expert’s opinion regarding the kind ofprogram the student needs in order to makeprogress and the basis for this opinion; the ex-pert’s familiarity with the parent’s proposedschool; and the expert’s opinion that the schoolis appropriate to meet the needs of the student.

During the testimony, counsel should encourage

7Of course, if the parent prevails then theschool system is liable for attorneys’ fees as well ascosts (including the cost of engaging an expert.


the expert to use specific examples and makespecific recommendations drawn from theexpert’s experience with the child. The expertshould make eye contact with the hearing officerand should never simply read from a preparedreport. Experts should avoid professional jargonwhenever possible, and, to the extent that termsof art are necessary, the expert should definethose terms. The expert should avoid phrases –both in testimony and in written reports – like“the best program to meet the student’s needs”or the “program which is most likely to maxi-mize the student’s potential.” Instead, the expertshould use the terms “appropriate” and “necess-ary.”

F. Some pros and cons of privateplacement for students in thedelinquency system

Counsel should consider some of the practicalpros and cons of seeking a private placement fora student who is also involved in thedelinquency system. One advantage of privateschool place-ment is that a new school gives achild who has had a history of school failure a“fresh start”; a private placement may providean educational program, typically in a smallersetting, that more specifically meets the needs ofthe child. As a result, counsel may be able toobtain a dismissal of the child’s juvenile case bydemonstrating the availability of a new schoolprogram, offering coordinated services designedto meet the child’s unique needs, provided at nocost to the court. In a juvenile justice systemwhich is overloaded, a private placement offersthe court an easy and attractive way to end acase. In that sense, a private school placementmay be the figurative or even the literalequivalent to “sending a child to militaryschool” as a quid pro quo for a delinquencydismissal.

A private school placement also presents signif-icant negative considerations. Many privateschool administrators, not surprisingly, rejectsummarily applicants who have a juvenile courthistory. Counsel, therefore, may decide to with-hold – to the extent practicable and ethical – in-

formation about the child’s delinquency involve-ment. Further, the private school program maynot be near the child’s home, and the child, quitereasonably, may resist a school placement pro-posal that entails a lengthy, daily commute.Moreover, private schools may present racial,cultural, and class barriers for many children inthe delinquency system. Hence, a private schoolplacement is not necessarily the best choice inevery situation.

IV. Compensatory education

Compensatory education is a remedy designedto meet the needs of children who have beendenied FAPE for a specific period of time.Frequently referred to as “the poor man’sBurlington,” the remedy initially came intobeing for children whose parents were unable topay in advance the costs of private schooltuition; hence, those children would remain ininappropriate place-ments while the parentspursued a challenge to the public schoolplacement. While a parent ultimately might haveprevailed, sometimes years elapsed before theparent’s position was vindicated. Compensatoryeducation, in essence, gives the child back theyears lost languishing in an inappropriateplacement. Brown v. Wilson County Sch., 747F.Supp. 436 (M.D. Tenn. 1990). Differentjurisdictions vary in the stand-ards they apply indetermining when compensa-tory education isappropriate. Where a child has been deniedservices, courts generally agree thatcompensatory education should be awarded. See,e.g., Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir.1990), cert. denied, 111 S. Ct. 1317 (1991);Burr v. Sobol, 863 F.2d 1071 (2nd Cir. 1989),vacated and remanded, 109 S. Ct. 3209 (1989),aff’d per curiam on remand, 999 F.2d (1909);Harris v. District of Columbia, 19 IDELR 105(1992). In regard to children who have receivedinappropriate services, rather than no services atall, compensatory education should be awardedif the school knew or should have known thatthe child had an inappropriate IEP or was notreceiv-ing sufficient educational benefit, yetfailed to correct the situation. M.C. v. CentralRegional School District, 81 F.3d 389 (3rd Cir.


!!!Counsel is not limited to seekingcompensatory relief simply for

the period the parent was activelychallenging the school’s placement

but may seek relief for the entireperiod the child was deprived

FAPE!!!

1996), cert. denied, 117 S. Ct. 176 (rejecting“good faith” defense mounted by school district,and contention that compensatory educationaward requires “gross” deprivation of the rightto free appropriate public education).8

Often, compensatory education is awarded in theform of a day-for-day remedy: for each day thechild was deprived of an education, the child isentitled to an additional day of compensatoryeducation. Burr v. Ambach, 863 F.2d 1071 (2nd

Cir. 1988) vacated and remanded, 492 U.S. 902,reaff’d on recon., 888 F.2d 258 (1989)(awarding one and one-half years of compensa-tory education to student who was unable toattend school due to school’s errors and pro-cedural delays). Some recent case law suggests,to the contrary, that compensatory education isan equitable remedy, not a contractual one, so“there is no obligation to provide a day-for-daycompensation for time missed.” Parents ofStudent W. v. Puyallup Sch., 31 F.3d 1489 (9th

Cir. 1994) (compensatory education for lost timerefused where student was able to graduate fromhigh school before age twenty-one withoutadditional services).

More than other remedies, compensatoryeducation lends itself to creativity both in termsof measuring the duration of the entitlement andin terms of crafting a remedy. Counsel is notlimited to seeking compensatory relief simplyfor the period the parent was activelychallenging the school’s placement but may seekrelief for the entire period the child was deprivedFAPE. For a child who has not been previouslyidenti-fied as needing special education servicesbut who has performed poorly in school, counselmay argue that the school violated its obligationto identify the child as needing special educationand thus the child is entitled to compensatoryeducation dating from the time the child firstbegan to perform poorly until the time the childwas identified as needing special education.Parents of Student W. at 1496. Counsel mayseek compensatory education for each schoolyear the child had an inappropriate IEP andfailed to make educational progress. Similarly,counsel may seek compensatory education foreach year that the school system personnel failedto implement a child’s IEP. In yet anotherscenario, counsel may seek compensatory edu-cation for the period of any unlawful suspen-sions or exclusions from school.

The parameters of compensatory education areunclear. Stated most broadly, compensatoryeducation is whatever supplemental services arenecessary, over and above whatever the schoolmust already provide as “appropriate,” to reme-diate the educational damage done to the childduring the period the child was deprived ofFAPE. See Chicago Bd. of Educ., July 9, 1984IDELR 257:568 (Department of Education’sOffice of Civil Rights states that compensatoryeducation includes services “over and above”the services required by the IEP as compensationfor lost time). Initially, compensatory educationtended to be in the form of additional years ofeligibility for special education services beyondthe age of 21. See, e.g., Harris v. D.C., 19IDELR 105 (1992). Another common form ofcompensatory education is summer school.When developing a summer program, counselshould not be limited to simply academic reme-diation. Special education programs combining

8Some courts, however, have required ahigher level of school misconduct, at least in certainsituations. See, e.g. Garro v. Connecticut, 23 F.3d734 (2nd Cir. 1994) (requiring showing of “gross pro-cedural violations” for award of compensatoryeducation to students already past the age ofentitlement to services under IDEA).


!!!Tutoring may be particularly useful

remedy for students who balk atsummer school. Regular,

individualized attention may evenmake schoolwork accessible for thethe first time for students who havehistorically performed poorly in a

group setting but who do not want amore restrictive environment.

!!!

camp experiences with remedial instruction maybe a more appropriate remedy.

Instead of summer programming and extendedyears of eligibility, counsel may wish to arguefor immediate, supplemental services so thatrelief will not be further delayed. See ChicagoBd. of Educ., July 9, 1984 IDELR 257:568.Thus, individual tutoring in the areas in whichthe student is experiencing the most difficulty, intandem with an appropriate special educationprogram, may be an appropriate remedy. SeeHall v. Detroit Public Schools, 823 F. Supp.1377, 13?? (E.D. Mich. 1993); Phil v.Massachusetts Dept. of Educ., 9 F.3d 184, 188(1st Cir. 1993). Tutoring may be a particularlyuseful remedy for students who balk at summerschool. Regular, individualized attention mayeven make schoolwork accessible for the firsttime for students who have historically perform-ed poorly in a group setting but who do not wanta more restrictive environment.

Tactically, compensatory education has a num-ber of advantages for students involved in thejuvenile delinquency system. First, it shifts thefocus of blame from the child to the school. Ifthe child can establish that the school failed toprovide him with the services he needed in orderto succeed in school, the child may be able todefeat the school’s action to punish the child forhis academic failures. Second, compensatoryeducation can be part of a comprehensive pack-

age of remedial services which will so occupythe child’s time that participation in additionalactivities through the court would not only besuperfluous but may interfere with the child’seducation. By the same token, a child who isoccupied with constructive activities is,arguably, less likely to become involved indelinquent con-duct. Moreover, the court viewsa child who is receiving tutoring in the afternoonand who will participate in a summer academicenrichment program as being less available toparticipate in delinquent acts, and thus less of athreat to the community. Finally, a child whofails to participate in court-ordered programsand services may face, as a consequence,revocation of probation or parole (aftercare). Incontrast, a child who fails to take advantage ofspecial education services does not, as apractical matter, face incarceration as a sanction.

V. Damages and fees

The law on the availability of damages for vio-lations of the Individuals with Disabilities Act(IDEA) rights, whether under IDEA directly orin an action linking IDEA to § 1983, is in a stateof flux and confusion. While there are manycases stating that damages beyond tuition reim-bursement are not available, the majority ofthese cases (or the authority upon which theyrely), pre-date the U.S. Supreme Court’sdecision in Franklin v. Gwinett County PublicSchools, 503 U.S. 60 (1992). Franklin held thatas a general rule, absent “clear direction to thecontrary by Congress,” federal courts have thepower to award any appropriate relief, includingdamages, in a cognizable cause of actionbrought pursuant to a federal statute. ApplyingFranklin, the Third Circuit in W.B. v. Matula, 67F.3d 484 (3rd Cir. 1995), found no such “cleardirection” in IDEA, and accordingly held thatcompensatory damages, including damages forviolations of IDEA. See also, Walker v. D.C.,969 F.Supp. 794 (D.D.C. 1997); Brantley v.Independent School District No. 625, 939F.Supp. 649 (D. Minn. 1996) (compensatorydamages may be available for IDEA/§ 1983claim where plaintiff can prove actual injury);McMillan v. Cheatham Co. Schools, 25 IDELR


398, 407 (M.D. Tenn. 1997) (stating that youthwho has aged-out of the IDEA entitlement mayrecover compensatory damages for “grossviolation” of IDEA). Other post-Franklin courtshave rendered adverse decisions withoutdiscussing, or even acknowledging, Franklin andits implications. See, e.g., Heideman v. Rother,84 F.3d 1021 (8th Cir. 1996) (“general damages”for emotional injury or injury to dignatoryinterest not available); Whitehead v. SchoolBoard for Hillsborough County, 918 F. Supp.1515 (M.D. Fla. 1996).

To the extent that money damages may berecoverable, parents may also bring claims basedupon § 504 of the Rehabilitation Act (and theimplementing regulations), under whichdamages are available for at least intentionaldisability-based discrimination. See, e.g., W.B. v.Matula, supra; Rodgers v. Magnet Cove PublicSchools, 34 F.3d 462 (8th Cir. 1994); Pandazidesv. Virginia Bd. of Ed., 13 F.3d 823 (4th Cir.1994). Alternatively, parents may argue thattheir civil rights were violated by the school’sfailure to adhere to the procedural protections ofthe IDEA. Quackenbush v. Johnson City Sch.Dist., 716 F.2d 141 (2nd Cir. 1983), cert. denied,104 S. Ct. 1426.

In contrast, attorneys’ fees are available to theparents or guardians of a student withdisabilities who is the “prevailing party” ineither an administrative proceeding or a judicialproceeding. 20 U.S.C. § 1415(i)(3)(B). Theamount of the fees “shall be based on ratesprevailing in the community in which the actionor proceeding arose for the kind and quality ofservices furnished.” 20 U.S.C. § 1415 (i)(3)(C).The court has the discretion to reduce the fees ifthe parent unreasonably protracted the case orthe fees are excessive, except in cases where theschool system also unreasonably protracted thefinal resolution of the matter. 20 U.S.C. §1415(i)(3) (F), (G). The court may also reduce afee award if parents’ counsel did not provide inthe due process hearing complaint theinformation required by 20 U.S.C. § 1415(b)(7).20 U.S.C. § 1415(i)(3)(F)(iv). In the event theschool system makes a settlement offer within

the time period prescribed by rule 68 of theFederal Rules of Civil Procedure or, in the caseof an administrative proceeding, at any timemore than ten days before the proceeding beginsand the offer is not accepted within 10 days, theparent is not entitled to fees for work performedafter the settlement offer if the relief finallyobtained by the parents is not more favorable tothe parents than the settlement offer. 20 U.S.C. §1415(i)(3) (D)(I). An exception may be made,however, and full fees awarded, if the parentwas substantially justified in rejecting the offer.20 U.S.C. § 1415 (i)(3)(e). Expert witness feesare also recoverable as part of the necessary feesand costs to the prevailing party. See, e.g.,Aranow v. District of Columbia, 791 F.Supp.319 (D.D.C. 1992), reversing 780 F.Supp. 46.Attorneys seeking fees should check the law intheir local jurisdiction to determine what thestatute of limitations is on actions to obtain fees.Dell v. Town-ship High, 32 F.3d 1053 (7th Cir.1994).