1. Using Special Education Law In Family Court Cases Criminal Defense Institute June 2011 Joe Tulman Professor of Law JTulman@udc.edu

2. 2 Delinquency – Reversing the School-to-Prison Pipeline Special Education Advocacy to Defeat Delinquency Jurisdiction or Enhance Defense  Keep a Child Out of, or Get a Child Out of, the Delinquency System  If Not, Improve the Defense and the Outcome

3. 3 Child Welfare – Stabilizing or Reunifying Families Special Education Advocacy to De- Rail Child Welfare Intervention or Improve Outcomes  Identifying and Obtaining Services  Help a Parent Gain Control of the Situation  Consider Innovative Defenses

4. 4 Case Aggregation and Attorney Mobilization for Systemic Change  Defining “Case Aggregation”  Advantages of Using Special Education as an Organizing Strategy –Caseloads and Attorneys’ Fees –Conflict and Cost  Pushing for Reliance on Prevention and Integrated System of Care

5. 5 Special Education Advocacy To Defeat Delinquency Jurisdiction or Enhance Defense  Disability Disparity  Advantage of Using Disability Rights  Special Education Law and Practice (Quick Overview)  Strategies for Delinquency Defense

6. 6 The Current Situation From School System to Delinquency (Rise of Zero Tolerance Policies) Neglect (Child Welfare) to Delinquency Delinquency to Criminal

7. 7 Other Child-Caring Systems… Ineffective in…  Stabilizing or Reunifying Families or Stabilizing Children in Placements  Addressing Deviant Conduct by Children  Reducing Drugs, Violence, Illiteracy, Poverty, Recidivism, etc.  Making Children Productive

8. 8 Other Child-Caring Systems… Mental Health, Recreation, Drug Treatment, Vocational Rehab., Probation, and School Systems = Ineffective or Subordinated Because of Cynicism or “Efficiency”

9. 9 Effectiveness of Providing an Appropriate Education  Developmental Imperatives for Adolescents… –Competency, Success, and Independence: In School or On the Street? - Job Mentoring: Legitimate or Illegal Economic Activity –We Know What Makes Children Successful –Importance of Mainstreaming –Brain Science and Outgrowing Delinquency

10. 10 Providing Appropriate Education  Evidence-Based Practices –For Teaching Individuals –PBIS –For Diminishing Youth Violence (e.g., Surgeon General’s Report on Youth Violence; Blueprints; Etc.)  CDC Findings on Kids in Criminal System & Adult Prisons  Our Clients Have Unmet Needs and Unrecognized Rights

11. 11 Disparities, Discrimination, and Efficacy of Legal Challenges  Disparity  Disparity Based on Race –E.g., –E.g., McCleskey v. Kemp; but cf., cf., Deliberate Indifference Rather than Just Disparate Impact  Disparity  Disparity Based on Class –Not –Not Recognized  Disparity  Disparity Based on Disability –More –More Effective Legally, Politically, Rhetorically, Psychologically, and Practically (For Solving Problems)

12. 12 Children with Disabilities Disproportionately…  Not successfully integrated in the mainstream at school  Excluded from school due to discipline  Subjects of child welfare petitions  Facing delinquency charges  Detained and incarcerated  Not successfully reintegrated following incarceration

13. 13 Substantive and Procedural Rights Under the IDEA HANDOUT

14. 14 Individuals with Disabilities Education Act (I.D.E.A.)  20 U.S.C. §§ 1400 et seq.  34 C.F.R. Part 300.  State and Local Statutes and Regulations

15. 15 IDEA Eligibility  Disability Categories  Substantial Impact on Education  From 0 to 3 and from 3 through 21  Twenty-Second Birthday (Plus) –Effects of Diploma or G.E.D.  “Compensatory Education” –Expanding Services –or Extending Eligibility

16. 16 Substantive and Procedural Rights Under the IDEA  FAPE (Free Appropriate Public Education)  LRE (Least Restrictive Environment) –Mainstreaming & Inclusion –Continuum of Services, Including 24-Hour  IEP (Individualized Education Program)  Related Services  Transition Services  Assistive Technology  FBAs/BIPs (Functional Behavioral Assessments and Behavioral Intervention Plans)  PBIS

17. 17 Substantive and Procedural Rights, Continued  Evaluation “in any area of suspected disability” –Psycho-educational –Clinical psychological –Speech/Language –Vocational –Neurological –Etc.  Independent Educational Evaluations  Initial, Triennial -- and More Often –Control by Defense Attorney –Contrast with Criminal or Delinquency Evaluations  Response to Intervention

18. 18 Substantive and Procedural Rights, Continued  Child Find  Right to a Due Process, Administrative Hearing

19. 19 Rights Under the IDEA  School System – Block Disciplinary Exclusion and Zero Tolerance  Neglect System – Must Educate  Delinquency System – Must Educate  Adult Criminal System – Must Educate –Exception: Over 18; Not ID’d; Sentenced  Incarceration –Before, During, and After... Must Educate –Substitute Special Education for Institutionalization

20. 20 Remedies Under the IDEA  Burlington and Carter & 34 C.F.R. § 300.148(c)  Compensatory Education –Educational Enhancement –Extended Eligibility  Attorneys’ Fees at Market Rate for Prevailing Parents –Defining “Prevailing” Post Buckhannon –Settlement vs. Consent Order –Expert Costs (Murphy)

21. 21 Special Education Advocacy: Stages of the Process  Identification & Evaluation  Eligibility  IEP  Placement  Providing Services  Annual Assessment & IEP  Triennial Evaluation

22. 22 DISABILITY AND DELINQUENCY DEFENSE: Basic Strategies

23. REVERSING THE SCHOOL-TO-PRISON PIPELINE (Individual Case Advocacy) -or- How to Put a Monkey Wrench into the Conveyor Belt of Injustice In Order to Take a Child Off

24. 24 Transforming Defendants into Plaintiffs Turning Cases into Kids – Continue the Representation Transforming Defendants into Plaintiffs Turning Cases into Kids – Continue the Representation

25. 25 Basic Spec Ed Application to Delinquency Case 1. List All the Services (Etc.) That a Child Needs 2. Categorize Under Evaluations, Specialized Instruction, “Related Services”, “Transition Services”, A.T., and “FBA-BIP” 3. Justify as “Appropriate” Under the Rowley Standard 4. Compare with What is Available Within the Delinquency, Criminal, or Neglect System 5. Consider Advantages of Each System 6. Devise Negotiation/Litigation Strategy (with Focus on Comp. Ed.)

26. 26 Services Available  Delinquency and status offense system(s)  Special education system (related services & transition services) –Parent training –FBA/BIP –Social work services –Counseling –Therapeutic recreation –Continuum of placements –Private services (Burlington) –Vocational training –Compensatory Education

27. 27 Charting  Excavating and Charting School Records –Child Find Violations –Denials of FAPE (including failure to do triennials, illegal exclusions) –School Failures; Truancy  Charting (Lack of) Academic Progress

28. 28 Strategic Timing & Juxtaposing Systems  The importance of winning special education hearings –Discretion of the court vs. impact of a hearing officer’s determination  Timing of the delinquency and special education matters –Negotiating a continuance –Spec ed advocacy for the long haul

29. 29 Representation Issues  Delinquency: Child = Client –Strategy Discussion –Add Parent as Client, too  Retainer Agreement –Conflict Potential –Transfer of Rights to the Child

30. 30 Fairness of the Process  Compare Families with Resources and Those Without –What Happens to Non-Minority, Non- Poor Kids? –Special Education Services as Equivalent of Private Services –Accommodations During Intake?

31. Using Special Education Advocacy to Enhance Delinquency Defense

32. 32 Incidents at School  Disciplinary Hearings  Goss v. Lopez  Discovery Opportunity (e.g., School Fight Case)  IDEA Disciplinary Protections  IEP & BIP Agreement Not to Go to Delinquency Court  T.L.O. + Exclusionary Rule at School  Individualized Decision-Making (Not Zero Tolerance)

33. 33 Incidents at School  Mediation – Who is the Aggressor  Manifestation Determination + Mens Rea; Culpability  Discriminatory Decision-Making Regarding Whom to Refer to Court  The Win-Win of PBIS + BIPs & FBAs

34. 34 Incidents at School  Derrick and Todd’s Cases  Steven’s Case

35. 35 Challenging the Intake Process  Decisions not to prosecute “deserving” children –How? Why? By whom? –Investigation requirement –Diversion or no case?  Statutory basis –Interest of justice –Social reasons –Purposes provision –Definition of “delinquent child” –School service requirements (e.g., prior to truancy case)

36. 36 Falling Between the Cracks  Delinquency judges generally do not have jurisdiction over special education issues –Challenges to denial of special education rights in administrative due process hearing –Administrative exhaustion requirement  Special education hearing officers generally do not have jurisdiction over delinquency issues –Exception (change of placement): Morgan v. Chris L., 927 F. Supp. 267 (E.D. Tenn. 1994), aff'd, 106 F.3d 401 (6th Cir. 1997)

37. 37 Congressional Purpose in the I.D.E.A. “Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.” “Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.” -- Honig v. Doe, 484 U.S. 305, 323 (1988).

38. 38 The Worst of Both Worlds  Minority youth (particularly boys) with education-related disabilities most likely to be kicked out and pushed out…  No representation in discipline; no representation in special education  No one in delinquency raises illegality –Failing to identify –Failing to provide spec ed and related services –DUMPING & CRIMINALIZING THE KID  Exhaustion barrier

39. 39 Compelling Equities & Formulating Legal Theories  Analogy to Kent v. United States, 383 U.S. 541 (1966)  Flooding the school-to-prison pipeline; no shut-off valve  Arguing school administrators did an “end run” – circumventing spec ed obligations  Arguing dismissal in the interest of justice

40. 40 Best Kind of Case  Minor delinquency  Truancy or other status offense  School personnel ignoring legal obligations  Zero tolerance run amuck  Diversion kids facing new school discipline charges

41. 41 The Best Argument: Violation of Intake Process  “Powers of the probation officer” include “mak[ing] investigations, reports, and recommendations to the juvenile court; receiv[ing] and examin[ing] complaints and charges of delinquency, unruly conduct or deprivation of a child for the purpose of considering the commencement of proceedings.... [and] mak[ing] appropriate referrals to other private or public agencies of the community if their assistance appears to be needed or desirable…” –Model Juv. Ct. Act § 6 (1968)

42. 42 20 U.S.C. § 1415(k)(6)  Rule of construction: IDEA doesn’t constrain school officials from reporting alleged criminal behavior  Requirement to provide school records to the court (intake) assuming FERPA permission

43. 43 Case Support Whether school administrators are attempting an end run of special education responsibilities should be considered at the “investigative and referral levels” of the juvenile court process at which decisions are made regarding “whether the case belongs in the juvenile system in the first instance...” In re Trent M., 569 N.W.2d 719, 724 (Wis. Ct. App. 1997). In re Trent M., 569 N.W.2d 719, 724 (Wis. Ct. App. 1997).

44. 44 Motion to Dismiss Based Upon Violation of Intake Process  Experiences with these motions  The Role of the Probation Officer in Intake: Stories from Before During and After the Delinquency Initial Hearing 3 D.C. L. Rev. 235, 235-50 (1995)

45. 45 Selective Prosecution (and “End Running”) = Discrimination  “Of course, it would be a violation of Section 504 of the Rehabilitation Act of 1973 if a school were discriminating against children with disabilities in how they were acting under this authority (e.g., if they were only reporting crimes committed by children with disabilities and not [those] committed by nondisabled students).” –64 Fed. Reg. 12631 (March 12, 1999).

46. 46 De-Contaminating Detention  One-Way Valve –Use RAI & Limit RAI Overrides –Use Continuum of Placements as Alternative to Secure Detention –Use Interlocutory Appeal –End Detention for Social Reasons (incl. “danger to self”) –End Reconsideration of Release and Contempt of Court  The Timing: Having IDEA Services Ready for Possibility of Re-Arrest

47. 47 De-Contaminating Detention  Releasing the Detainable –School (IDEA) Services as Alternative to Detention –Inappropriateness of Proposed Detention Site (Can’t Implement IEP; No Spec Ed Services)  School Attendance as a Condition of Release –Exhaustion –Accommodations –Third-Party Contempt

48. 48 Evaluation Strategies  Evaluations –by court –ex parte (Ake v. Oklahoma) –by school system –independent ed eval –through medical insurance –through Medicaid

49. 49 Evaluation Strategies  Use evaluations and evaluators to support –Miranda challenge –competency –mens rea –lack of understanding of circumstances of alleged events (e.g., import of what named co- respondent said) –limitations as a witness; need for accommodations during trial, on probation, etc. –need for services (e.g., family counseling; parent training; FBA-BIP) that are not available in juvenile jail or prison setting

50. 50 Fact Investigation & Trial Prep  Example: Child with Receptive/Expressive Language Disorder  Challenging Inferences –What Child Purportedly Says to Alleged Victim –What Child Allegedly Hears and Presumably Comprehends  Demonstrate that changed statement during interrogation not significant (e.g., cop getting child to drop claim of innocence)

51. 51 Fact Investigation & Trial Prep  Child’s (and Other Witnesses’) Ability to Remember Facts and Statements Relevant to Suppression and Defense –counter to cross attacking credibility based on inconsistency

52. 52 Discovery Brady v. Maryland Exculpatory or Mitigating Information (e.g., Amenability to Treatment) Brady v. Maryland Exculpatory or Mitigating Information (e.g., Amenability to Treatment) * * * Prosecutor Responsible for Providing Information from Other Public Agencies? Prosecutor Responsible for Providing Information from Other Public Agencies?

53. 53 Pre-Trial (Status Hearings) Agreement Between Defense and Prosecution to Continue Trial or Order Probation Before Judgment to Allow Special Education Services to Take Effect Agreement Between Defense and Prosecution to Continue Trial or Order Probation Before Judgment to Allow Special Education Services to Take Effect

54. 54 Transfer Motion  Standard –Amenability to Treatment –Different Standard?  Unclean Hands (child had a right to services that government failed to provide)  Availability of Services in Juvenile System/Placement but Not in Criminal

55. 55 Suppressing Statements  Miranda and Other Waivers –Expert witnesses on Reading and Auditory Comprehension –Colorado v. Connelly and Moran v. Burbine  Unreliability of Admission/Confession (Rules of Evidence and Due Process) –Child with MR or expressive/receptive language disorder –Other disabilities (e.g., depression/SED, PTSD)?  Privilege Against Self-Incrimination –Coercion and Totality of Circumstances –ADA and Ethics: Affirmative Duty by Police and Prosecutors and Judges?

56. 56 Excluding Statements  Motions Based on Due Process or Rules of Evidence –Reliability –Probativity vs. Prejudicial Impact –Expert Testimony Regarding Significance of Accused’s Words or Understandings  Statements Made During Interrogation –Impeachment Value –Substantive Value (as to Guilt or Innocence)

57. 57 Taking a Plea Bargain Oh, Pleas! Oh, Pleas! The Child’s Understanding of the Plea Bargain and the Need to Accommodate in the Rule 11 Colloquy The Child’s Understanding of the Plea Bargain and the Need to Accommodate in the Rule 11 Colloquy & Challenges to Pleas Challenges to Pleas

58. 58 Defenses  “No Show” Violation (Bail Reform Act) or Failure to Inform (Accommodate)?  Truancy or “Constructive Eviction” (Failure to Provide Spec Ed)?  Behavior = Manifestation of Disability: Not Culpable or Mitigation?  Aider & Abettor or Bystander/Witness?  Drug Use (Possession) as Manifestation of Disability  Provocation

59. 59 Disposition: Special Education Services As Alternative to Incarceration –Use the Continuum of Care in Special Education –Creative Use of Related Services, Transition Services, and “Burlington” Remedy –LRE and Treatment as Precepts in Delinquency and Disability Law –Best Interest of Child as Precept in Delinquency Law –Child Welfare System Placement as Alternative

60. 60 IDEA Eligibility for Young People in Adult (Criminal) System Evaluation Before Sentencing & Establish Eligibility  Compensatory Education to Extend Eligibility  Hybrid Sentencing Opportunities –Youth Act –Probation in Criminal Case with Treatment in Juvenile + Spec Ed (Continuum)

61. 61 Post-Disposition: Examples of Arguments  Can’t Execute BIP in Violent Environment of Juvenile Prison  Train and Enlist Juvenile Prison Personnel to Help with IEP’s (Re-Integration Strategy)  Residential Treatment Center vs. Incarceration  Not Fulfilling Treatment Order; Modify; Civil Contempt  Third-Party Contempt (To Block Revocation) –School System’s Unlawful Exclusion of Child or Failure to Provide FAPE Precludes Child’s Compliance with School Attendance or Related Condition of Probation or Parole

62. 62 Direct IDEA-Based Challenges  Failure to Provide Special Education Services –In Juvenile Incarceration Facility –State Prison or Jail –Federal Bureau of Prisons –Immigration Detention Centers  Chicken Bone or Case Aggregation (or Class Action)

63. 63 Probation or Parole Revocation  Protect and Defend Against Revocation –Written Request for Accommodation (or in Disposition Order) –Failure to Accommodate (e.g., PO Trained to Communicate)

64. 64 Case Aggregation & Attorney Mobilization  How Case Aggregation Has Worked in D.C. –Training Attorneys (Attorneys’ Fees & Self-Interest) –Lots of Spec Ed Hearings –Lots of Private Placements –PDS Spec Ed Unit –Attorneys’ Fees: Backlash

65. 65 Case Aggregation & Attorney Mobilization  Training of Probation and Aftercare Workers  Training of Mental Health, Teachers, and “Counselors” at Juvenile Incarceration Facility  Training of Judges –Judges Appointing Spec Ed Attorneys  Panel & Standards –Judges Paying Spec Ed Attorneys

66. 66 Case Aggregation & Attorney Mobilization –Expanded Budget, Poorly Allocated; Studies; Emerging Consensus? –Training to Change the Attitudes –Class Actions –Re-Claiming Neighborhood Schools (SAM, FSS, etc.)