Professor of Law
JTulman@law.udc.edu
202 274-7317
- Determine the child's
special education status.
- Find a way to get the child evaluated for special education
eligibility.
- Ensure that someone acquires and organizes for the court the
child's educational records.
- Appoint an educational expert to advise the court.
- Push the parent (or a child who is 18 or older) to find and
hire a special education lawyer.
- Understand what "special education", "free
appropriate public education" (FAPE), "related services",
and "transition services" are.
- Insist that the child have a current, appropriate Individualized
Education Program (IEP) and a current notice of placement.
- Use the bully pulpit and the court's authority creatively
to ensure that the child gets needed services (special education
services, related services, and transition services).
- Ensure that a child resides in the least restrictive environment
that is consistent with both community safety and with educating
the child.
- Recognize that, by ensuring that the child receives education
and treatment, you have advanced an outcome that ultimately
is best not only for the child and the child's family, but also
for the court and for the community.
Determine if the child is in school, if the child has previously
been identified as needing special education, and if the child
had an Individualized Education Program (IEP) in the last educational
placement. This information may be critical for determining whether
the school system has an obligation to educate and serve a student
aged 18-21 in an adult correctional facility. 20 U.S.C. ' 1412
(a)(1)(B)(ii), 34 C.F.R. ' 300.311 (a).
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Insist that the parent have the child evaluated; or tell a probation
officer to push for the evaluation; or refer the child yourself
to school system personnel for comprehensive current evaluations.
See, e.g., 34 C.F.R. ' 300.532 regarding evaluation procedures
and your local school regulations regarding referral for special
education by a judicial officer. Upon request, school system personnel
must assess the child, without charge, in all areas of suspected
disability. Thus, by pushing special education evaluation, a court
can ensure that -- without charge to the parent or to the court
-- comprehensive evaluations have been completed. Left to their
own systems and means, delinquency and criminal courts often fail
to obtain any evaluation of a child. When the court does obtain
its own evaluation (regarding a child in adult criminal court),
the evaluation is likely to be a forensic screening regarding
competency or amenability to rehabilitation or perhaps a clinical
psychological evaluation addressing the child's cognitive level
(IQ) and basic diagnoses. Through the special education process,
the parent and the child are entitled, as noted above, to evaluations
relevant to any area of suspected disability. In addition to a
complete psycho-educational, speech/language, hearing, and vision
testing, the child may also have, for example, a clinical psychological,
an occupational and physical therapy evaluation, a neurological
and/or psycho-neurological, an evaluation of adaptive functioning
and non-verbal intelligence, and a complete vocational evaluation.
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Particularly for disposition (in delinquency cases), for sentencing
(in criminal cases), and for transfer (between delinquency and
criminal court), the judge should see the child's educational
history. See, 34 C.F.R. ? 300.560 et seq. Typically, one will
discern a failure by school system personnel over a period of
many years, beginning in early elementary school, to identify
the child as eligible for special education services and a failure
to provide the child with required special education services.
The court should insist that an advocate for the child or an expert
appointed by the court prepare a chart to provide for the court
a summary of the child's school history. (Reviewing clearly-documented
evidence that educators responsible for the child failed for a
period of years -- in violation of federal, state, and local law
-- to provide comprehensive services to the child, how can one
conclude that a child is not amenable to services?)
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Locate an educational psychologist or other professional with
expertise in psycho-educational matters (i.e., education-related
disabilities and special education evaluations and services).
An expert can review the child's educational history (including
current and past evaluations), review the child's current and
past IEP's (or the lack thereof), evaluate the child's current
educational placement and services (or the lack thereof), and
help the court and the parties to find appropriate and comprehensive
services for the child.
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One may have trouble initially finding attorneys who know and
practice special education law and, in particular, finding attorneys
willing to represent (regarding special education) parents of
young people who have cases in the delinquency or criminal court.
With some persistence, however, one can find and develop these
connections, particularly as lawyers learn that attorneys' fees
are available at market rate for parents who prevail in special
education matters against the school district. 34 C.F.R. ' 300.513.
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Read the list of definitions provided to you (along with this
Top Ten list). The services available through the school system
to a child with education-related disabilities are comprehensive
and meaningful. Provided and supervised properly, these services
can help the child become stable, safe, and productive. Thus,
the court should view these services as an alternative to incarceration
and to punitive handling of the child through the criminal or
delinquency system. The court can make attendance or residence
at a special education placement and participation in special
education services a condition of probation or pre-trial release.
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Order that school system personnel (or personnel from another
public agency responsible for providing educational services to
students in adult correctional facilities) develop an IEP for
the child. See 20 U.S.C. ' 1414 (d)(6), 34 C.F.R. '' 300.311 (b)
and (c) (relating to the development of IEP's for children with
disabilities in adult prisons) and 20 U.S.C. ' 1412 (a)(11)(c)
(allowing the state to designate a public agency, other than the
school system, to provide educational services for children with
disabilities in adult prisons). Order representatives from appropriate
linking agencies -- i.e., agencies that provide certain transition
services -- to be present at the development of the IEP. See e.g.,
34 C.F.R. ' 300.344 (b) (regarding transition services participants);
but see, 34 C.F.R. ' 300.311 (b)(2) (limiting the obligation to
provide transition services). Insist that school system personnel
(or personnel from another public agency responsible for providing
educational services to students in adult correctional facilities)
issue a notice of placement that specifies the child's current
special education school placement.
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The special education law (i.e., the IDEA) does require that
a party exhaust administrative remedies prior to obtaining relief
from a court; nonetheless, a judge in a delinquency or criminal
case (or a transfer hearing) can insist that parents, probation
officers, and others responsible for the child take necessary
actions. Moreover, if school system personnel fail to provide
an IEP and special education, related services, and transition
services, they are -- in effect -- likely interfering with the
child's ability to comply with the court's order to attend school.
A non-party who interferes with a party's ability to comply with
a court's order (and with statutory requirements like mandatory
school attendance) may be in civil contempt and/or subject to
the court's authority under its own rules to enforce compliance
with its orders. Simply summoning in school system authorities
to answer the court's questions about the absence of special education,
related, and transition services for a child may be sufficient
to get people moving to serve the child. Remember two key concepts
from case law regarding special education remedies when school
system personnel fail to provide free and appropriate special
education services: (1) placement of the child by the parent in
private facilities at public expense; (2) compensatory education
services to make up for time and education lost by the child.
By obtaining these remedies through the special education administrative
hearing process and using them strategically in relation to the
child's criminal matter, an advocate for the child can increase
dramatically the potential for identifying and securing, for sentencing
purposes, legitimate and practical alternatives to incarceration.
Courts should be aware of these possibilities and encourage such
outcomes. (See #10, below.)
Judges also can convene inter-agency meetings, bringing officials
and administrators together to discuss collaboration between agencies
(including pooling money) to coordinate services for children
under the IDEA and to avoid the ordinary tendency to push children
with disabilities out of school, onto the streets, and into the
delinquency system.
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As noted above, comprehensive special education, related, and
transition services can substitute for harsh treatment of a child
in a delinquency or criminal incarceration setting. If a judge
determines that a child requires a placement that is not community-based,
however, special education law may provide a residential treatment
alternative that, as a practical matter, secures the community's
protection from the child while ensuring that the child receives
special education, related, and transition services. If a child
with education-related disabilities needs twenty-four-hour supervision
to ensure educational progress, school system personnel must provide
that level of care. Thus, a court in a delinquency or criminal
matter should insist that school system personnel initiate and
complete this residential placement process prior to the court's
disposition or sentencing date. To facilitate the child's ultimate
placement, the court -- prior to disposition or sentencing --
can issue orders for the child to be released temporarily for
the purpose of attending interviews at potential placements. (Placement
in a residential treatment center is less restrictive than a hospital
or, of course, a prison.)
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Ensuring that a young person has opportunities to become competent
and productive and to fulfill legitimate aspirations is the best
outcome for everyone involved. Education reduces recidivism. Over
the years, courts have allowed school system authorities to shift
responsibility for maintaining and training children with serious
behavioral problems from the school system to the courts and to
the juvenile delinquency system. More recently, that shift has
been increasingly to the adult criminal system. The court can
require that school system personnel resume responsibility for
the child, thus shifting much of the burden back. Whenever appropriate,
the court -- in its discretion -- can maintain supervision of
the child and of the education/treatment process by making attendance
and participation in the special education placement a condition
of probation. Unlike disposition or sentencing orders, special
education programs (IEP's) are a product of a team of people that
includes the parent and the child, expert evaluators, teachers
and school system administrators. That team can modify and adjust
the IEP at any time to increase its efficacy. IEP's can -- and
often do -- contain extensive behavior management programs; individual,
group, and family counseling; small teacher:student ratios (including
one-on-one, when appropriate); recreational and therapeutic recreational
activities, mentoring, tutoring, job coaching, and other services
that are, in reality, not available in incarceration settings.
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