Special Education and Delinquency Cases Wendell Hutchinson Education Team Managing Attorney Disability Rights Mississippi

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1 Special Education and Delinquency Cases Wendell Hutchinson Education Team Managing Attorney Disability Rights Mississippi Disability Rights Mississippi (DRMS) is a private, non-profit corporation. The mission of DRMS is to promote, protect and advocate for the legal and human rights of all people with disabilities, and to assist them with full inclusion in home, community, education and employment. DRMS is part of a national network of protection and advocacy systems. DRMS, as the designated protection and advocacy system for the state of Mississippi, is authorized to pursue legal, administrative, and other remedies on behalf of individuals with all types of disabilities. 42 U.S.C et. seq., 42 U.S.C et. seq., 29 U.S.C. 794e. The priority of the Education Team at DRMS is to ensure students with disabilities, who have or should have an eligibility ruling in special education under the Individuals with Disabilities Education Act (IDEA), receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). DRMS s case selection criteria, for Youth Court cases, is as follows: The student has been or should have been ruled eligible for special education in a public school district The student has been referred to the Youth Court by a school district for an alleged disciplinary incident that occurred on campus or at a school function 1

2 Overview Individuals with Disabilities Education Act (IDEA) Free Appropriate Public Education (FAPE) under the IDEA Special Education under the IDEA Related Services under the IDEA Individualized Education Programs (IEPs) under the IDEA Functional Behavioral Assessments (FBAs) under the IDEA Behavioral Intervention Plans (BIPs) under the IDEA Manifestation Determination Reviews (MDRs) under the IDEA State Statutes Application of the IDEA and state statutes to Youth Court Individuals with Disabilities Education Act (IDEA) The purposes of the IDEA are: to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. 20 U.S.C. 1400(d)(1)(A). Free Appropriate Public Education (FAPE) Under the IDEA FAPE means: special education and related services that have been provided at public expense, under public supervision and direction, and without charge;... meet the standards of the State educational agency;... include an appropriate preschool, elementary school, or secondary school education in the State involved; and... are provided in conformity with the individualized education program 2

3 required under section 1414(d) of this title. 20 U.S.C. 1401(9); see also 34 C.F.R , State Board Policy (SBP) , 20 U.S.C. 1412(a)(1)(A), 34 C.F.R , SBP , Board of Education of Hendrick Central School Dist. v. Rowley, 458 U.S. 176 (1982), Cypress-Fairbanks ISD v. Michael F., 118 F.3d 245 (5 th Cir. 1997). Special Education Defined Under the IDEA Special education means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability U.S.C. 1401(29) (emphasis added); see also 34 C.F.R , SBP Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction... To address the unique needs of the child that result from the child's disability; and... To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. 34 C.F.R (b)(3) (emphasis added); see also SBP (b)(3). Unique Needs of a child with a disability include academic, social, emotional and behavioral needs. See County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996). Related Services Under the IDEA The term related services means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in 3

4 children. 20 U.S.C. 1401(26) (emphasis added); see also 34 C.F.R , SBP The related services listed in 20 U.S.C. 1401(26) are illustrative, not exhaustive. See, e.g., C. v. Missouri State Bd. of Educ., 670 F. Supp.2d 972 (E.D. Mo. 2009). Counseling services means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. 34 C.F.R (2); see also SBP (2). Psychological services includes... Administering psychological and educational tests, and other assessment procedures... Interpreting assessment results... Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning... Consulting with other staff members in planning school programs to meet the special educational needs of children as indicated by psychological tests, interviews, direct observation, and behavioral evaluations... Planning and managing a program of psychological services, including psychological counseling for children and parents; and... Assisting in developing positive behavioral intervention strategies. 34 C.F.R (10) (emphasis added); see also SBP (10). Social work services in schools includes... Preparing a social or developmental history on a child with a disability... Group and individual counseling with the child and family... Working in partnership with parents and others on those problems in a child's living situation (home, school, and community) that affect the child's adjustment in school... Mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program... Assisting in developing positive behavioral intervention strategies. 34 C.F.R (14) (emphasis added); see also SBP (14). Parent counseling and training means assisting parents in understanding the special needs of their child... Providing parents with information about child development; and... Helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP C.F.R (8); see also SBP (8). 4

5 Individualized Education Programs (IEPs) Under the IDEA An IEP is a written statement for a child with a disability that includes: a statement of the child s present levels of performance; a statement of measurable annual goals designed to meet the child s needs that result from the child s disability; a description of how the child s progress toward meeting the annual goals will be measured; a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child; an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class; a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments; the projected date for the beginning of the services and modifications; the anticipated frequency, location, and duration of those services and modifications; and appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills and the transition services needed to assist the child in reaching those goals. 20 U.S.C. 1414(d); see also 34 C.F.R , SBP Functional Behavioral Assessments (FBAs) The purpose of a functional behavioral assessment is to isolate a target behavior and to develop a hypothesis regarding the function of the target 5

6 behavior. A target behavior is one that interferes with a student's ability to progress in the curriculum and to achieve the student's IEP goals. Once the target behavior is identified and the hypothesis developed, a positive behavior intervention plan can be prepared to address the target behavior with strategies and interventions... Broward County Sch. Bd., 110 LRP (SEA FL 05/07/10) (emphasis added); See also Independent Sch. Dist. No. 2310, 29 IDELR 330 (SEA MN 1998). The United States Department of Education stated, in regards to conducting functional behavioral assessments, that 34 C.F.R (c)(4) "requires the public agency to ensure that the child is assessed in all areas related to the suspected disability. This could include, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. This is not an exhaustive list of areas that must be assessed. Decisions regarding the areas to be assessed are determined by the suspected needs of the child. If a child's behavior or physical status is of concern, evaluations addressing these areas must be conducted." 71 Fed. Reg. 46,643 (2006) (emphasis added). Behavioral Intervention Plans (BIPs) Under the IDEA The IEP Team must... In the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior C.F.R (a)(2)(i) (emphasis added); see also SBP (a)(2)(i). OSEP has provided guidance that IEP teams should consider the use of positive behavioral interventions tailored to the unique needs of a child. Letter to Anonymous, 50 IDELR 228 (OSEP 2008) (emphasis added). BIPs should be written with sufficient specificity to address the child s behaviors taking into account the child s individual needs. Kingsport City Sch. Sys. v. J.R., 2008 WL (E.D. Tenn. 2008) (holding the BIP was not appropriate for addressing the child s behaviors resulting in a denial of FAPE); In re Student with a Disability, 49 IDELR 147 (SEA IN 2008); New York City Dep t of Educ., 49 IDELR 270 (SEA NY 2008) (finding the one page FBA form used to develop the BIP for a child with Autism did not address the frequency of the behaviors, the intensity or duration of the behaviors or describe events or conditions that triggered the child s 6

7 behaviors; finding the BIP developed from the FBA was vague and did not offer specific strategies for addressing the behaviors of the child resulting in the denial of a meaningful educational benefit). Manifestation Determination Reviews (MDRS) Under the IDEA Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the... IEP Team... must review all relevant information in the student's file... to determine... If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or... If the conduct in question was the direct result of the LEA's failure to implement the IEP... The conduct must be determined to be a manifestation of the child's disability if the... IEP Team determine that a condition in either paragraph... was met. 34 C.F.R (e)(1)(2) (emphasis added); see also SBP (e)(1)(2), 20 U.S.C. 1415(k). For purposes of removals of a child with a disability from the child's current educational placement... a change of placement occurs if... The removal is for more than 10 consecutive school days; or... The child has been subjected to a series of removals that constitute a pattern C.F.R (a) (emphasis added); see also SBP (a), 20 U.S.C. 1415(k). If... the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team must... Either... Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or... If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and... return the child to the placement from which the child was removed C.F.R (f) (emphasis added); see also SBP (f), 20 U.S.C. 1415(k). For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability... school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the 7

8 procedures would be applied to children without disabilities C.F.R (c) (emphasis added); see also SBP (c), 20 U.S.C. 1415(k). See also 34 C.F.R (d), SBP (d), 20 U.S.C. 1415(k). See also 34 C.F.R (g), SBP (g), 20 U.S.C. 1415(k). State Statutes After receiving a report, the youth court intake unit shall promptly make a preliminary inquiry to determine whether the interest of the child, other children in the same environment or the public requires the youth court to take further action... If it appears from the preliminary inquiry that the child or other children in the same environment are within the jurisdiction of the court, the youth court intake unit shall recommend to the youth court:... That the youth court take no action;... That an informal adjustment be made;... The Department of Human Services, Division of Family and Children Services, monitor the child, family and other children in the same environment;... That the child is warned or counseled informally;... That the child be referred to the youth court drug court; or... That a petition be filed. The youth court shall then, without a hearing:... Order that no action be taken;... Order that an informal adjustment be made;... Order that the Department of Human Services, Division of Family and Children Services, monitor the child, family and other children in the same environment;... Order that the child is warned or counseled informally;... That the child be referred to the youth court drug court; or... Order that a petition be filed. Miss. Code (emphasis added). Informal adjustment pursuant to the informal adjustment agreement provided in Section shall include:... the giving of counsel and advice to the child and his parent, guardian or custodian;... referrals to public and private agencies which may provide benefits, guidance or services to the child and his parent, guardian or custodian;... temporary placement of the child or supervision by the youth court counselor with the consent of the child and his parent, guardian or custodian, subject to youth 8

9 court review... If authorized by the youth court, informal adjustment may be commenced after the filing of a petition... If the child and his parent, guardian or custodian agree to participate in an informal adjustment process, the defense of a failure to provide a speedy trial is waived and a petition may be filed if the informal adjustment process is unsuccessfully terminated under Section Miss. Code (emphasis added). The Youth Court s ultimate purpose is to insure that each child that comes before it shall receive such care, guidance, and control... As is in the child s best interest. Miss. Code Ann (emphasis added). The youth court may at any time terminate the proceedings and dismiss the petition if the youth court finds such action to be conducive to the welfare of the child and in the best interest of the state. Miss. Code Ann (4) (emphasis added). The youth court may, in compliance with the laws governing education of children... order appropriate educational services... The court shall have jurisdiction to enforce school and education laws. Miss. Code Ann (emphasis added). First Steps in Representation of a Client Receiving Special Education Services Determine if the Client has an Eligibility Ruling. Obtain the Client s School Records; 34 C.F.R (b)(1)(2); see also SBP (b)(1)(2). Get a Release from the Client s Parent/Guardian to Obtain All Education Records including: o Evaluations o IEPs o FBAs o BIPs o MDRs o Incident Reports o Disciplinary Records 9

10 Use the Education Records to Identify How the School District has Denied Your Client a FAPE Under the IDEA Related Services Section in IEPs FBAs BIPs MDRS o Psychological Services o Counseling Services o Social Work Services o Daily Data o Progress Monitoring with Fidelity o Review and Revision of BIP(s) based on Progress Monitoring o Review all MDRs for violations of the IDEA o Review the MDR for the Incident Leading to the Youth Court Referral o Review the most recent MDR to determine if it was deemed a manifestation of your client s disability Steps to Take After Identify Violations Under the IDEA and Prior to Adjudicatory Hearing My initial contact with the Youth Court is based on the stage of the case If Intake Meeting has not yet occurred: o Call Youth Court Counselor and/or o Go to Intake Meeting and/or o Set up participation in Intake Meeting by phone If Intake Meeting has occurred but no petition has been filed: o Call Youth Court Counselor and/or 10

11 o Call Prosecutor If Petition has already been filed: o Call Youth Court Counselor and/or o Call Prosecutor If not able to get worked out without appearing in Youth Court: o Get there early o Ask to meet with Judge and Prosecutor in chambers Substance Addressed During Informal Calls and Meetings Prior to Adjudicatory Hearing Inform student is a child with a disability receiving special education services and is thereby protected under IDEA Ask if school district has provided special education records to the Youth Court as required under IDEA Describe how student s disabilities affect him/her and explain student s unique needs Address school district obligations under IDEA Address school district s FAPE in LRE violations under IDEA Describe how student s behaviors are a result of school district s violations under IDEA Address how student s behaviors are manifestation of student s disabilities Describe how school districts use Youth Courts as a loophole to avoid complying with the IDEA on school matters Address need for Youth Courts to hold school districts accountable for handling school matters 11

12 Point out what is in the student s best interest based on the student s unique needs as a result of his/her disability o Explain how negative/punitive adjudication goes against the student s best interest and is more of the same negative consequences approach o Explain the best interest of the student is served through PBIS, appropriate FBA/BIP with daily data gathering and progress monitoring every 2 weeks (provided to the parent and DRMS); appropriate related services Explain DRMS s current advocacy role and legal representation role o Address positive results since DRMS has become involved in student s case o Describe what DRMS s continuing role will be in student s case o Explain if go forward with adjudication (which is not in student s best interest), the appropriate disposition will be the same as not going forward with adjudication (i.e., DRMS s continued involvement in student s case) o Further, if additional resources are appropriate, such as MYPAC (Mississippi Youth Programs Around the Clock), describe DRMS s close working relationship with MYPAC and how DRMS can make this connection on behalf of student without Youth Court s involvement Public Defenders may be able to partner with advocacy agencies to fulfill the above described advocacy role. Possible advocacy agencies include: o DRMS o Mississippi Center for Justice (MCJ) o Mississippi Families As Allies o Mississippi Parent Training and Information Center (PTI) Address Youth Court s authority: o In not referring a student s case for the filing of a Petition 12

13 Order no action be taken Order an informal adjustment Order student be warned or counseled informally o To dismiss o To remand o To enter into informal adjustment o To enforce education laws If first time in Youth Court, point this out Explain you are not suggesting behaviors are acceptable; the school district is responsible for providing meaningful educational benefit which includes social, emotional, behavioral and academic progress o Point out that it is imperative that the school district provide appropriate services to ensure behavioral progress by the student o Point out if school district fails to provides appropriate services to ensure behavioral progress, student will likely end up dead or in prison Affirmative Defense and/or Motion to Dismiss In order to bring about systemic change, it is imperative that Youth Courts hold school districts accountable under the IDEA. DRMS has focused on informal means, as already discussed, in advocating for Youth Courts to hold school districts accountable under the IDEA. An additional strategy to consider is to file public interest Affirmative Defenses. M.R.C.P 8(c); M.R.C.P. 1; M.R.C.P. 81(a)(3)(see Comment to Rule 81); U.R.Y.C.P. 20(a)(8); Miss. Code Ann ; Miss. Code Ann (5). o Such affirmative defenses should argue for petitions to be dismissed due to school districts failures to provide appropriate services to 13

14 ensure clients with disabilities have made social, emotional and behavioral progress as is required under the IDEA. Absent the school districts violations under the IDEA, it is probable these petitions would not be before the courts. Thus, it is not in the public interest to refer children with disabilities to Youth Court for school districts violations of federal law. o The Youth Court s ultimate purpose is to insure that each child that comes before it shall receive such care, guidance, and control... As is in the child s best interest. Miss. Code Ann o The youth court may at any time terminate the proceedings and dismiss the petition if the youth court finds such action to be conducive to the welfare of the child and in the best interest of the state. Miss. Code Ann (4). o The youth court may, in compliance with the laws governing education of children... order appropriate educational services... The court shall have jurisdiction to enforce school and education laws. Miss. Code Ann Alternatively, the above argument could be made by filing a Motion to Dismiss. U.R.Y.C.P. 15(c); M.R.C.P. 7(b)(1); M.R.C.P. 1; M.R.C.P. 81(a)(3)(see Comment to Rule 81). Adjudicatory Hearing Depending on the manifestations of a given student s disability, challenge the student s ability to purposely and knowingly commit the alleged act(s). o A student with Asperger s Disorder o A student with an Intellectual Disability o A student with an Anxiety Disorder o A student with a Learning Disability Put on evidence of Affirmative Defense as addressed above. 14

15 Disposition Hearing DRMS Special Education Advocate testifies on the following: o Advocate s past and present involvement in client s special education case o Client s disabilities o Manifestations of client s disabilities o School district s violations of client s rights under the IDEA o Positive results since Advocate has become involved in client s case o Description of what Advocate s continuing role will be in client s case including how Advocate will obtain services under the IDEA to meet the client s social, emotional, behavioral and academic needs Public Defenders may be able to partner with advocacy agencies to fulfill the above described advocacy role in Disposition Hearings. Possible advocacy agencies include: o DRMS o Mississippi Center for Justice (MCJ) o Mississippi Families As Allies o Mississippi Parent Training and Information Center (PTI) 15