B. Special Education and the Schools



Special education proceedings and juvenile justice proceedings take place in completely different settings, with different rules, but may be interrelated. First, they may concern the identical offense, as criminal charges may be filed for something the juvenile did at school. Second, even if not directly related, the result of special education proceedings might shed light on the juvenile’s actions and the rehabilitative process and might be valuable for the juvenile court.





Joseph B. Tulman and Joyce A. McGee, eds., Special Education Advocacy for Children in the Juvenile Delinquency System 1-4 (University of the District of Columbia School of Law Juvenile Law Clinic, 1998). 


1.  Special Education Representation

Either a defense attorney or an outside attorney can advocate for educational rights. Special education representation may add to the overall cost of representation, but depending on the stage of litigation, special education litigants who prevail are entitled by statute to file for attorney fees at market rate.


An attorney must honor the juvenile’s perception of his or her best interest and maintain confidentiality. Therefore, it is important to have the juvenile’s agreement to pursue special education representation. Some clients feel the stigma of special education labels or the revelation of family secrets are not worth the advantages.



Id. at 1-8.
Many special education rights, particularly procedural ones, belong to the parents rather than the juvenile. Representing both parent and juvenile is not necessarily a conflict of interest, but the limits of the representation, and what to do in the case of a disagreement, should be carefully worked out in advance. 

 Id. at 1-9
Conflict at home and failure at school are likely for a juvenile involved in the delinquency system, but resolving disagreements in the family and solving educational needs may also be critical steps towards rehabilitation.




Id. at 11-3.










Id. at 2-17.











Id. at 7-3. 
The following are the steps counsel should take in beginning special education representation in a delinquency case:
  • File a request for educational records, with a release from the parents and a cover letter.
  • Consult with the juvenile about a possible special education strategy, and the need to engage a parent as a client for the special education representation.
  • Execute a retainer agreement with parent and juvenile.
  • Discuss the goals of the client both educationally and for the delinquency case.
  • Obtain all relevant records to investigate the educational, medical, and social history.
  • Chart the educational history, organizing the information year by year, and by category.  Sometimes, this process can unearth a long history of educational neglect.
  • Start the process of requesting evaluations or reevaluations and work with the school district to formulate an IEP suitable for the juvenile’s needs.
  • If the offense occurred at school and school discipline is also involved, pursue a manifestation determination through the IDEA process.
  • Combine the special education strategy with the delinquency defense strategy.
  • Engage expert witnesses or consultants to evaluate and testify about the disability.


Ralph C. Martin, II, Zero Tolerance Policy Report 1, American Bar Association, ABA Juvenile Justice Policies (February 2001)
available here
(viewed April 17, 2007 )
2.  Zero Tolerance Policies

Schools’ zero tolerance policies can be especially punitive for students with disabilities.  Zero tolerance has become a one-size-fits-all solution to the problems that schools confront. It has redefined students as criminals, with unfortunate consequences. Zero tolerance is theoretically directed at students who misbehave intentionally, yet it also applies to those who misbehave as a result of emotional problems or other disabilities, or who merely forget what is in a pocket after legitimate non-school activities. 


Id. at 2. 
Originally intended as a response to a student with a gun, it now covers the gamut of student misbehavior, including giving an aspirin to a classmate, or saying, “I’m going to get you if you eat all the potatoes” (in that case, the child was arrested for terroristic threats and was incarcerated for two weeks awaiting trial).

Testimony of the National Council on Disability, Juvenile Detention Centers:  Are They Warehousing Children with Mental Illness? 13 (July 7, 2004)
available here.
(viewed on Oct 15, 2010 )
“Some research and anecdotal evidence suggests that as schools have become more restrictive and punitive (e.g. zero tolerance approaches to misbehavior), they have increasingly pushed greater numbers of juveniles with disabilities into the juvenile justice system.”

Tulman and McGee, supra note 15 at 2-3
Perhaps because of this, at times courts have dismissed cases when the school district has failed to develop and implement an appropriate educational setting for a student with special needs, and has not given the student the support needed to behave well, but has instead filed criminal charges against the student for the misbehavior.





It is not unusual for juveniles with disabilities to be victims of bullying or criminal behavior. In fact, the juvenile’s misbehavior, or behavior characterized as misbehavior, may be triggered because he is a victim of bullying. (One youth with emotional disabilities became upset when a fellow student on a field trip insisted on waving a dinner knife in his face. He grabbed the blade of the knife, at which point the fellow student yanked the knife away, scratching the youth’s hand. The school’s investigation centered around the “misbehavior” of the youth with disabilities, and whether he had been guilty of violence.)



Burrell and Warboys, supra note 3 at 7.
3.  School-Related Charges

When charges spring from school-related behavior, special education issues may be closely involved. Juvenile justice professionals should consider the need for a special education eligibility evaluation, modification of an IEP, a functional behavioral analysis, or other appropriate action under IDEA.
CECP and EDJJ, supra note 1 at 3. 
Even if there has been an evaluation under IDEA, a more comprehensive disability or mental health evaluation may be needed. 

Id. at 4.
If there has been no evaluation, it is worth considering if the juvenile has shown a history of behavioral or learning problems that warrants a disability evaluation, and how the family or school has addressed these problems. 



If the school should have known the juvenile had disabilities and did not evaluate or provide services, or if the school provided an IEP that was inadequately formulated or implemented, then the juvenile’s rights under IDEA have been violated. This may be relevant to the charges if a nexus exists between the disability and the behavior.



Testimony of the National Council on Disability,  supra  note 23 at 7.
When a juvenile is in the juvenile justice system for an incident that occurred at school, it is worth asking whether the failure was the juvenile’s or the school’s. At times, school districts that have failed to provide preventive services under IDEA have treated juveniles with emotional disturbance as behavior problems.

Id. 
Juveniles with emotional disturbance may be able to function well in school with “positive behavioral supports.” 

Tulman and McGee, supra note 16 at 2-7
A juvenile advocate can work actively with the juvenile’s family and the school to develop or modify an IEP that will meet the juvenile’s needs and perhaps give the court a solid basis for dismissing the case. 

Id. at 2-9. 
Advocates should also ensure the prosecution and probation officers have access to information about the juvenile’s educational status. 

Burrell and Warboys, supra note 3 at 7.
If a crime is school-related, the court can consider whether the behavior was a manifestation of the disability, as well as whether the school district has properly met the requirements of IDEA. See the section on School Discipline Under IDEA. Moreover, the school district is still required to comply with IDEA when the juvenile with a disability enters the juvenile justice system.

Id. at 7-8. 
If the case involves a juvenile with a suspected or identified disability, the disability may make it difficult for the juvenile to understand or comply with programs developed for low-risk delinquent juveniles, such as diversion or probation. The juvenile may have better success with special education behavioral interventions under IDEA. 





At a minimum, the juvenile may need special support to succeed in these programs.







Id. 
The juvenile court may wish to consider:
  • continuing or deferring formal prosecution pending the outcome of special education manifestation hearing and related proceedings;
  • placing first-time and less serious offenders in diversion programs while special education proceedings move forward; and/or 
  • dismissing the case in the interests of justice, especially where the offense is minor, the juvenile suffers from mental illness, emotional disturbance, or mental retardation, and the juvenile will receive special education services.