Back in March, we discussed what to do if your student with a disability ends up in juvenile court for attendance issues. Unfortunately this is all too common. However, even more common are those circumstances where students end up in juvenile court for behaviors that occur at school, or at a school related event (e.g., football game, bus transport, field trip). Where a student’s behavior is related to his/her disability, the consequences for the behavior become a special education issue.
Here’s a real life example: Student is an international adoptee. She was born with fetal alcohol syndrome, and suffered abuse and neglect for most of the first years of her life. She has chronic PTSD, together with medical issues related to her early years. Student was not adopted until age 10. After starting school in the U.S., student was placed on an IEP but no behavior goals were included. Over the first three years in school, Student’s behavior gradually escalated, but school district never took any action to address behaviors clearly related to her disability. School district decides it cannot deal with Student, so it arranges to send Student to a County program for students with behavioral needs. At the time Student starts school, no IEP or ETR has been sent to County program. No information about Student’s profound trauma needs was communicated to teachers, though parents had warned administrators that Student could not be restrained or placed into seclusion room due to past history of abuse, which included having been locked in a closet. On third day of the new program, Student is noncompliant and is told she will be restrained and placed into seclusion room. Student warns teachers not to put their hands on her, but they pay no attention and she punches them and injures one. Student is arrested and charged with several felony offenses.
This situation is extremely common, and it should be obvious to any thinking person that this situation is not the fault of the Student. Unfortunately, that is not always the case. So what can a parent do?
The best approach under these circumstances is to immediately file a request for a due process hearing detailing why the school district’s failures ultimately resulted in the behavior that brought the child to the juvenile court. Not every case involving a student with a disability can be handled this way. However, if the behavior occurs at school or at a school function, the first place to look is at the child’s IEP. If the student was regularly having behavior issues that went unaddressed, then seeking relief in a due process hearing is likely to get the best result.
I generally advise the school district and the prosecutor that the situation presents an educational issue, not a criminal one, as it was the District’s responsibility to take some action to prevent the Student from escalating. In almost all of the cases, the prosecutor’s office has agreed to drop the charges, including in the case described above. Educating those who practice in juvenile court is essential to assuring that students with disabilities are not punished for behaviors over which they may have little or no control, and particularly where the situation could have been averted if the school district had not violated the child’s right to receive FAPE.
In most of these situations, school district personnel appear front and center in the juvenile court to assure that the child is prosecuted. I have never heard of a school district, which is not a party to the criminal proceeding, being ordered to show up at an arraignment, but yet there they are. Filing a due process, and in some circumstances, a civil rights action, holds the district accountable for its failures, while educating court personnel regarding the special education issues presented by the facts.
In most cases, the Student will need an attorney for the criminal proceeding, as well as for the educational one. Again, many public defenders and other criminal defense attorneys have little knowledge or understanding of special education laws, or about particular disabilities and how they impact students’ behaviors. They too require education by the parents and the student’s advocates.
Finally, creating an IEP for the student that appropriately addresses the behavior issues goes a long way toward convincing prosecutors and judges that the matter is better off handled by the district and parents than through resources available through the Court. Judges like to know that there is a plan in place to assist the Student so that the Student will not end up in the Court again.
The juvenile courts are not meant to be a shield behind which school districts may hide when they have failed in their obligations under the laws that govern the education of children with disabilities. If your child has been denied FAPE, and is involved with the juvenile court as a result, you should take action immediately to assure that your child is not punished for having a disability. Juvenile detention is generally a poor place to educate a child whose disability includes challenging behaviors.