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Holistic Juvenile Defense Advocacy

JTIP: How to Effectively Use Special Education Advocacy

in Juvenile Delinquency Cases

To Disrupt the School to Prison Pipeline

Julie McConnell

Associate Clinical Professor of Law

Director, University of Richmond

Children’s Defense Clinic

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Special Education Advocacy

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Using Special Education Law in Delinquency Cases

Client Interview

Obtaining School records

School Discipline Proceedings

Pretrial, trial, transfer hearings, disposition, placement and reentry

+ What is Special Education?

A set of services and protections providing

disabled students

Between the ages of 2 and 21

With a Free and Appropriate Public Education

(FAPE)

In the Least Restrictive Environment (LRE)

Includes youth in juvenile facilities

+More What is Special Education?

Specially designed instruction, at no cost to

the parents, to meet the unique needs of a

disabled child, including:

Instruction in the classroom, home, hospitals,

institutions, and other settings

Instruction in physical education

Speech-language pathology and other related

services

Vocational education

+Discipline of Students with Disabilities

Manifestation Determination Review (MDR)

Two questions:

1) Was the behavior caused by or directly and

substantially related to the child’s disability; or

2) Was the behavior the direct result of the local

educational agency’s failure to implement the child’s

IEP?

+MDR continued…

If the questions are answered affirmatively, the behavior

is a manifestation of the students disability.

If behavior is a manifestation of the disability:

The school cannot change the student’s placement.

The school must have an IEP meeting to complete a

functional behavioral assessment (FBA) or develop a

behavior intervention plan (BIP).

If a child already has a BIP, the IEP team

must review and modify the BIP to address

new behavior.

If behavior is not a manifestation of the

disability, a student may be disciplined

like a regular student.

+Implications for Delinquency Cases

Arrest and Intake

Detention

Pretrial Considerations

Motions to Dismiss

Competence

Miranda and Other Waiver Issues

Transfer Hearings

Trial

Mens Rea Defenses

Trial Accommodations

+Further Implications

Disposition

Dispositional Orders

Placement/Probation conditions

Post-Disposition

Aftercare

+Client Interview

In addition to all the normal inquires we make

about our client’s background, the defender

should ask the client about current and past

school placements and inquire about any

grades they may have repeated, school

suspensions and/or expulsions.

Most importantly, the defender should ask the

client whether or not he or she is currently in

special education. Specifically, the defender

should ask if he or she has an IEP, if the client

knows his or her disability classification and

when his or her most recent evaluations

occurred.

+Obtaining your Client’s School Records

The defender should immediately request the client’s school records. Usually the defender may do this by providing a release form

signed by both the student and parent to the child’s school and/or a copy of the Order appointing the defender. Under Va. Code Sec. 16.1-266, defenders are entitled to the records.

The defender should make sure to receive allschool records: any evaluations

IEPs and progress reports

attendance records

report cards

disciplinary file from other schools

the child attended (e.g., records from

elementary school, records from a school

the client may have transferred from, etc.).

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Advocacy at Suspension, Expulsion and other School Disciplinary

Proceedings

+ How can educational advocacy

benefit your delinquency case?

Discovery

Investigative Leads

Impeachment Materials

Preventing Incriminating Statements

Reducing Pretrial Detention/

Improving Disposition Options

+Short Term Suspensions

Requires only informal conference. Oral or written notice of the charges

Brief description of the evidence supporting the charges

An opportunity to present his or her side of the story

No right to counsel or to call or confront

witnesses.

Should be held as soon as

Practicable.

May be delayed if student poses

a serious danger to persons or

property and notice is not feasible

+Long Term Suspensions

& Expulsions

More formal hearings with significant procedural protections

What does “significant” mean? How do you determine the

level of process due?

Mathews v. Eldrige, 424 U.S. 319 (1976) – Balance:

Private interest at stake

Risk of erroneous deprivation of that interest through the

procedures being used and the value of procedural

safeguards

Government’s fiscal interest and administrative burdens

Note: Much stronger protections for Special Education students

+Chronology of Schools and Services

List all of the schools and years

attended in chronological order.

List all special education services the

client received each year.

Look for patterns of behavior and

performance using this chronology.

Show the judge or prosecutor where

the problems should have been

identified by the school system and

that they were not addressed through

appropriate evaluation and special

education services.

+ Other Uses for the Chronology

The chronology will also help the defender identify

potential witnesses that can speak on the child’s

behalf in both the special education and

delinquency matters.

The defender should search records for teacher

and counselor comments to find potential

witnesses.

Such comments are also useful in identifying the student’s

strengths and weaknesses going forward with both the

special education and delinquency matters.

The chronology will inevitably be a useful tool at

disposition in identifying relevant services and/or

placement.

+Implications of IDEA in a Delinquency

Case

Arrest and Intake--

Disability may be relevant to child’s behavior at

arrest.

If child not getting appropriate services at school

to address disability, argument might be that

fixing the IEP would

be more effective than

court intervention.

+Rights of Detained Youth

Identified youth are entitled to special

education services while incarcerated.

Identified youth under the age of 22

incarcerated in adult facilities are still

entitled to FAPE.

+Pre-trial Considerations

Motion to Dismiss if behavior is result of

manifestation of disability and school failed to

identify the child’s special needs.

Be proactive with the family to ensure IEP is

developed and refined to meet the child’s needs.

Ask for a GAL with educational law experience to

assist with navigating the process.

+Competency Issues

Is your client competent to stand trial?

Low intellectual functioning, communication

problems, emotional disturbances and memory

problems are all factors that could raise the need

for a competency evaluation.

Miranda

Was the waiver knowing, voluntary, and intelligent?

Age, reading abilities,

education level, and processing

issues all are relevant to

determining the validity of the

Miranda warnings.

+Transfer Hearings

Special education issues are important considerations

in transfer hearings, especially with regard to

amenability to treatment.

If the youth was not properly identified for services,

there may be a strong argument that special education

services could have made a difference in behavior.

Even if receiving Special Education services, they may

not have been adequate.

+Trial

A youth’s educational disability may be relevant to lack of capacity to form intent.

Under new legislation passed this session, a juvenile court can consider evidence of diminished capacity is relevant to certain school based offenses like disorderly conduct. HB 1213.

You may need to ask for accommodations in courtroom for a disabled client.

Simplified colloquies

Slower pace

Breaks

+Disposition

Dispositional Orders

Getting language in the order about the child's

disabilities may help spur the school to act.

The Order should require that the child receive

IDEA services while in a placement outside of

the home.

+Placement and Probation Conditions

The conditions of probation must take into account

the youth’s disability to be certain he receives

Special Education services.

Ensure the child can realistically comply with

probation conditions and can still participate in

services to address his disability.

In determining out of home placements, advocate

for those that take into account and address

disability related needs.

+Post-Disposition

Follow-up to make sure child is receiving

appropriate educational services under IDEA after

disposition.

Could help child do be successful on probation.

Could help with success in placements and other

programs.

Could help with reentry.

+Aftercare

Advocate for appropriate aftercare and reentry

services.

Ask for a continuum of services.

Ask for assistance with reentry into the community.

+Concluding Tips

Help the judge and the

prosecutor understand that

children often suffer severe

collateral consequences at

school for their delinquent

behavior.

Be creative about using

educational records to assist

your client.

Understand and advocate for

appropriate educational services

for your client or ask for GAL.

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Questions?

Julie McConnell

Director, Children’s Defense Clinic

University of Richmond School of Law

804-289-8205

jmcconne@richmond.edu