Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 4
Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr ., is emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section’s Juvenile Justice Committee.
Special Education Issues
On more than one occasion this column has addressed the impact of educational issues on the representation of juveniles in delinquency cases: "When a Disabled Juvenile Confesses to a Crime: Should It Be Admissible?" (Winter 1995); "Weapons in Schools and Zero Tolerance," (Summer 1996); "School Searches After T.L.O. and Vernonia School District," (Summer 1998). However, there has not been a specific look at the legal issues presented by children who are at risk in the school system and become involved in the juvenile justice system. With the emphasis on "zero tolerance" and the greater use of the juvenile justice system to address problem behaviors in school, it is important that lawyers become more knowledgeable about education law. Four recent publications make it much easier to be informed about the most relevant education law issues.
Sites for delinquent activity
Despite the highly publicized and fear-inducing school shootings in the past decade, schools are generally pretty safe places for children to be. In 2000, for example, students between the ages of 12 and 18 were more than twice as likely to be the victim of serious violent crime away from school than at school. (Bureau of Justice Statistics, Indicators of School Crime and Safety, 2002 (U.S. Dep’t of Justice, November 2002).) The nonfatal victimization rate for students of the same ages declined from 144 per 1,000 students in 1992 to 72 per 1,000 students in 2000. Between 1995 and 2001 the percentage of students reporting being crime victims decreased from 10 percent to 6 percent. ( Ibid.) During that same period, students reporting themselves as victims of thefts at school dropped from 7 percent to 4 percent. ( Ibid.) Schools have become much safer places for students overall, reflecting the decline in crime in society at large. Despite this decline in self-reported crimes, schools are reporting children to the courts for school behaviors in increasing numbers, and a significant number of young people are dismissed from school under zero tolerance statutes and policies.
Eileen Ordover of the Center for Law and Education in Washington, D.C., authored a recent update of the handbook When Schools Criminalize Disability: Education Law Strategies for Legal Advocates (April 2002). The publication informs youth advocates how to speak out for young people with disabilities who are involved in the justice system. The Center for Law and Education has long been a major resource for those who represent children in school cases, and this handbook lives up to its previous high standards.
The focus of the book is on what it calls "school-initiated juvenile court involvement," petitions filed in juvenile or family courts or crime reports made by school officials to respond to behaviors in school that may—but not necessarily should—result in formal court proceedings. Lawyers for youths nationwide have experienced the marked increase in handling school behaviors in court or through law enforcement rather than the traditional "in-house" school disciplinary proceedings. The publication is designed to be used for education advocacy based on the Individuals with Disabilities Education Act, section 504 of the Rehabilitation Act, and the Americans with Disabilities Act to "hold local schools accountable when they criminalize the behavior for which they are legally obligated to provide appropriate educational services," to "obtain better outcomes for clients in the juvenile courts," to "enforce schools’ obligation to address behavioral issues as educational ones," and to "reduce the risk of future school-initiated delinquency petitions or crime reports." It does an admirable job of delivering on this goal, providing juvenile justice advocates with the tools to represent children and youth with disabilities facing such issues.
The publication utilizes a series of hypothetical fact situations to walk the advocate through some typical cases. It is available at www.cleweb.org/downloads/ when_ schools_criminalize_disabil.html.
More on disabilities
Professor Joseph Tulman, clinic director at the University of the District of Columbia School of Law Juvenile Law Clinic, coauthored a similar handbook in 1998 with Joyce A. McGee, Special Education Advocacy: Under the Individuals with Disabilities Education Act (IDEA) for Children in the Juvenile Delinquency System. The manual begins by addressing the specific problems of children with disabilities facing proceedings in the juvenile justice system, especially in chapters one through three, where it discusses intake and detention decisions and the special vulnerabilities of such youth during police interrogation. There is an excellent chapter on school discipline issues, especially important in the current climate where exclusion from school is widespread for at-risk youth, and particularly those who may act out as a symptom of a disability. Another useful chapter addresses special education services for disabled youth in juvenile and adult detention and correctional facilities. Over half of the book is an excellent primer on the IDEA, walking the advocate through the special education process. Tulman has long been admired as an uncommonly informed and passionate advocate for this large population of youngsters in the juvenile justice system, and it is a treat to have his knowledge and commitment transmitted in writing through such an accessible manual. The publication is available for $10 from Professor Joseph B. Tulman at the David A. Clarke School of Law, University of District Columbia, 4200 Connecticut Ave., N.W., Building 38, 2nd Floor, Washington, D.C. 20008.
Handbook for legal advocates
The Special Needs of Youth in the Juvenile Justice System: Implications for Effective Practice, edited by Kimberly J. Adams, Kim Brooks and Joshua Rose of the Children’s Law Center of Covington, Kentucky, published in June 2001. The contributing authors include Kim Brooks, Anne M. Kinsman, Heather Griller-Clark, Peter E. Leone, and Eileen Ordover, all uniquely qualified to tutor lawyers about young people with educational disabilities who are enmeshed in the juvenile and family court systems. This book focuses more on court representation than education system advocacy. It has an excellent chapter on the unique ethical issues presented by representing youthful clients with mental or educational disabilities and another chapter that addresses the identification of disabilities and the special needs of minority and female populations within the broader group of disabled youth. The handbook does address the IDEA and section 504 of the Rehabilitation Act and their legal requirements, but not in quite the detail of the Tulman-McGee book. There is a larger discussion of competency issues and the "Essentials of an Evaluation," a valuable discussion for lawyers who sometimes tend to defer too quickly to the qualifications of professionals in other disciplines, and the tools they use. Like the other texts, there is a good discussion of the educational rights and needs of disabled youth in institutional settings, but there is also a fuller discussion of the necessary transitional services to ease the successful movement of these youth back to school, work, and the community. There are also useful checklists contained in the appendices that address the common mental health disorders and their characteristics, customary questions to be addressed in a competency determination, factors to be considered in the validity of a waiver of Miranda rights during interrogation, a checklist for transfer decision making, as well as disposition factors. The handbook is also on a CD, making it all the more accessible. Both are available from Carol Hiatt, Children’s Law Center, Inc., 104 E. 7th St., Covington, Kentucky 41011; (859) 431–3313, e-mail:
A publication for lay advocates and parents
The PACER Center in Minneapolis, a pioneer in the work in this important area, began in 1994 as a byproduct of an earlier project on abuse prevention. Its monograph is more utilitarian for others such as probation officers, social services workers, detention officers, correctional personnel, and even parents. Unique Challenges, Hopeful Responses: A Handbook for Professionals Working with Youth with Disabilities in the Juvenile Justice System is the product of Lili Frank Garfinkel, Dixie Jordan, Paula Goldberg, and Caryn Pernu, and was published in its third edition in 2001. It has a very good discussion of the various educational disabilities, their characteristics, and their implications for behavior and treatment programs. There are also well-thought-out policy recommendations for modifications in the juvenile justice systems to accommodate the needs of these youths. The monograph also has a useful bibliography of references and an excellent listing of resources, both nationally and state-by-state, to assist parents and professionals in securing advice and information about disabilities and the justice system. It is available from the Pacer Center, 8161 Normandale Boulevard, Minneapolis, Minnesota 55437–1004; (952) 838–9000, e-mail: firstname.lastname@example.org; website: www.pacer.org.
There is some obvious overlap among the four publications described, but they also address somewhat different audiences and their low cost make them very affordable and complementary. They should sit side-by-side on the shelf of every juvenile justice professional’s library, especially in the current era where it is difficult to separate involvement in the juvenile justice system from problems in the nation’s schools. n