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September 28, 2012 Articles

Representing Court-Involved Youth in Education Cases

By Rachel Shapiro and Margie Wakelin

By the time Sherri was referred to Equip for Equality (EFE) in Chicago, Illinois, she was 17 years old and about to enter ninth grade for the second time. Despite many at-risk factors, no one at Chicago Public Schools had ever thought to evaluate Sherri for special-education services. Sherri's grandmother adopted her at age two due to her biological mother's issues with addiction. When Sherri was 14 and in sixth grade for the second time, she started dating an older man who was selling drugs. After a dispute, her boyfriend shot her, and she entered a safe house for protection until he was sent to corrections. Sherri continued to attend sixth grade without passing. After her third unsuccessful year in sixth grade, she was promoted to high school. Sherri knew that she did not have the requisite skills for high school, which she admitted to her guidance counselor when requesting extra help with her classes. Her guidance counselor did not offer any tutoring or other assistance, and Sherri began skipping classes. As weeks went on, she stopped attending school. When she did show up, she felt alienated and talked back to her teachers or fought with other students. Despite Sherri's sustained failure in school and the trauma that she had encountered, no one—not her teachers, not her school administrators, not her counselors—thought to refer her for an evaluation to determine whether she was a student with an emotional or a learning disability. It was only when her probation officer referred her case to EFE that Sherri's education started to turn around. EFE advocated for the school to evaluate Sherri, and she began receiving instruction tailored to her needs. Now, she is finally making progress in school, and she knows that her teachers support her.

For attorneys who work with court-involved youth, Sherri's story is not extraordinary. As many as 90 percent of youth in the juvenile-justice system meet the criteria for one or more mental-health disorders on entry. Katherine A. Larson, Off. of Juv. Just. and Delinq. Prevention, Best Practices for Serving Court Involved Youth with Learning, Attention and Behavioral Disabilities 3 (2002). When compared to their peers, court-involved youth have less-developed cognitive social problem-solving skills and, consequently, are more likely to have behavioral and learning difficulties in school. Id. In addition, it is common for court-involved youth to experience high levels of absenteeism, similar to Sherri, as it is one of the greatest predictors of repeated involvement in the juvenile-justice system. U.S. Dep't of Just., Off. of Juv. Just. and Delinq. Prevention, Highlights from Pathways to Desistance: A Longitudinal Study of Serious Adolescent Offenders 3 (2011).

Although prevalence rates vary widely, some researchers estimate that greater than 75 percent of the juvenile-justice population has disabilities. Ann Cameron Caldwell, "Attitudes of Juvenile Justice Staff Towards Intellectual, Psychiatric, and Physical Disabilities," 45 Intell. and Dev'l Disabilities 77 (2007). Based on a national survey of heads of juvenile correctional departments, 33.4 percent of incarcerated youth received special-education services with prevalence ratings ranging from 9.1 percent to 77.5 percent, depending on the state. Dalun Zhang et al., "Adolescents with Disabilities in the Juvenile Justice System: Patterns of Recidivism," 77 Council for Exceptional Child. 283 (2011). Within the population receiving special-education services, nearly 50 percent have emotional disorders (EDs), 40 percent have learning disorders (LDs), and 10 percent have intellectual disabilities. Caldwell, at 77. Youth with ED are disproportionately represented among court-involved youth. According to the Department of Education, youth with ED represent 8.2 percent of students with disabilities in school settings, yet they represent 47.7 percent of students in correctional facilities. Zhang, at 284. Still more court-involved youth may have disabilities, but those youth have not been identified or evaluated, and they haven't started to receive special-education services.

Due to the high prevalence of court-involved youth with disabilities with unmet educational needs, EFE began a partnership with Cook County Juvenile Court in 2006 to assist Cook County's court-involved youth with disabilities by reducing recidivism rates, increasing educational opportunities, and protecting legal rights. Working directly with staff from Cook County Juvenile Court, EFE represents court-involved youth with disabilities in school meetings, mediations, expulsion hearings, and due-process hearings. EFE accepts referrals from probation officers, public defenders, judges, and other court personnel who suspect that a student in the delinquency system has unmet or undiagnosed special-educational needs. Throughout the last six years, EFE has successfully represented hundreds of court-involved youth to ensure that they receive an appropriate education.

EFE's success demonstrates the potential for using legal advocacy to transform educational outcomes for court-involved youth across the country. Like Sherri, court-involved youth need attorneys who can advocate for their educational rights. There are many federal and state laws that entitle youth with sustained difficulties in school, whether academic or behavioral, to greater assistance and protection. Unfortunately, in schools across the country, especially those with high rates of court-involved youth, these laws are not followed. By understanding how the laws can be effectively employed on behalf of youth, attorneys can transform youths' educational experience.

The Individuals with Disabilities Education Act
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C § 1400 et seq, is one of the most powerful federal laws someone can use to advocate for appropriate educational services for court-involved students. Under the IDEA, a student who is identified as having a disability is entitled to a free, appropriate public education or specialized instruction that would allow him or her to make progress in school. Not surprisingly, many court-involved students are eligible under the IDEA due to EDs such as bipolar disorder, depression, or posttraumatic stress disorder. Additionally, many court-involved students have LDs that adversely affect their ability to be successful in school. The cornerstone of the IDEA is the Individualized Education Program (IEP), which includes measurable annual goals for the student; accommodations and modifications for tests, assignments, and class performance; and related services, including counseling. 20 U.S.C. § 1414(d). For eligible students, the IDEA mandates that schools provide them with protections related to suspension and expulsion, attendance, and school failure. Consequently, the IDEA is a valuable tool for attorneys working with court-involved students.

Child-Find Violations
While many court-involved students already have IEPs and are eligible for full protections under the IDEA, many others, like Sherri, have not yet been found eligible, despite clear risk factors. This may indicate a violation of the IDEA, which can be used to obtain legal protections for a student who is not yet eligible for special-education services. Under the child-find provisions of the IDEA, a school district is obligated to implement procedures to locate, identify, and evaluate all students who may be suspected of having a disability. 20 U.S.C. § 1414(a). For example, a school district should train its teachers to identify signs that a student may be in need of special education. Those students are supposed to be referred to a team to determine whether an evaluation is warranted. A violation of child find occurs when a school district does not implement these required procedures and a student with clear signs of school difficulties is not evaluated. In the event of a child-find violation, the student is entitled to educational services that will put him or her in the position he or she would have been had the violation not occurred.

Sherri's case demonstrates the impact of child-find violations, the potential for legal advocacy, and the resultant educational success. Sherri's family history, traumatic events, and repeated failure of the sixth grade are all factors that warrant an evaluation for special education. Warning bells should have been sounding in Sherri's school when she failed sixth grade for the second time. However, she was not referred for an evaluation to determine if she was eligible for special education. As an attorney representing Sherri, you could raise these issues in a letter to her school district to request her immediate evaluation, as well as advocate for Sherri to receive tutoring and counseling outside of the typical school day to compensate for the child-find violation.

Child-find violations also provide powerful justification to prevent students not yet identified for special education from being expelled. If a student's history demonstrates that the school should have evaluated your client, you could advocate for dismissal of the expulsion hearing as a remedy for the child-find violation, arguing that your client may not have committed the discipline violation if he or she had received special-education services.

Evaluation and Eligibility
If your client exhibits signs of a disability, the most important first step is to advocate for an evaluation to determine whether he or she is eligible for an IEP. With an IEP, a student is eligible for many supports and services to address issues common for court-involved students: a plan to address problematic behavior, support for attendance issues, measurable goals for literacy instruction, and counseling to address trauma. To begin the evaluation process, you may write a letter to the school's principal or case manager, requesting an evaluation and explaining your client's difficulties at school. See 20 U.S.C. § 1414(a)(1)(B). If your client has been diagnosed with an ED or LD, this should be included in the request. Once the school receives the evaluation request, it must either obtain consent from the parent/guardian for the evaluation or deny the evaluation request in writing with an explanation of the denial.

Although parental consent is always required for the initial evaluation, states and school districts vary in their methods for obtaining this consent. See 20 U.S.C. § 1414(a)(1)(D)(i)(I). In Illinois, schools obtain consent for the evaluation at a meeting in which a team of school professionals and the parent discuss the current areas of concern and the domains in which the student must be evaluated. At this meeting, you should ensure that a comprehensive evaluation is conducted and that it includes assessments in all areas of concern. For court-involved students, it is common to conduct evaluations to determine cognitive ability, academic achievement, social-emotional development, health status, hearing, and vision. If a student has communication difficulties or gross or fine motor concerns, he or she should be given a speech-language, physical therapy, or occupational therapy assessment. It is critical that the team include qualified professional staff to identify needed evaluations, including a school psychologist, who can answer questions about the areas in which the student will be evaluated.

Once parental consent is obtained, the school must complete the evaluation within the specified state-law timeline, which may vary from the 60 days directed by the IDEA. See 20 U.S.C. § 1414(a)(1)(C). Your advocacy is critical at the meeting, during which the evaluations are discussed and the team determines that the student is eligible for an IEP. To maximize effectiveness, you should request the evaluation reports prior to the meeting and review them with the parent/guardian and prepare questions about components of the reports that are unclear or require further explanation. At the meeting, the team will consider the evaluation reports and answer two driving questions: Do the evaluations indicate that the student has a disability? Does the student, because of the disability, require specialized instruction and related services? If the team affirms both of these questions, your client will be eligible for special education, and the IEP team must create an IEP to address his or her disability.

IEP Revisions
Even with an IEP, a student may still experience school failure. It is essential to monitor both compliance with the IEP and whether the IEP addresses your client's needs and improves your client's performance in school. There are several common problems for court-involved students that indicate that the student's IEP is not appropriate and in need of revision. You can advocate for appropriate special-education services in the IEP revision.

The most obvious indicator that your client does not have an appropriate IEP is a report card with failing grades. An IEP is supposed to provide multiple levels of support, from specialized instruction to accommodations, to prevent the student from experiencing academic failure. Whether the reason for the failing grades is failing to complete homework or not studying for tests, you can advocate for the IEP team to develop a plan to address the problem so that your client does not fail. For example, if your client is not completing homework, he or she may need to meet with his or her teacher to complete assignments. Similarly, if he or she is not studying for tests, he or she may need direct instruction about how to do so. In the event that your client has failing grades, you should request an IEP meeting to revise his or her IEP to address the difficulties.

If your client is being suspended repeatedly for misbehavior, in school or out of school, it may be a sign that his or her IEP is not appropriate. Similar to the way it deals with failing grades, it is important for the IEP team to determine the cause for the misbehavior and develop a plan to address it. See 20 U.S.C. § 1414(d)(3)(B)(i). Often, misbehavior may be symptomatic of an inappropriate class placement, and it may indicate that your client needs additional academic support or a smaller class setting. Other times, a pattern of behavior results from inappropriate adult responses that can be altered to prevent the future escalation of behavior. If the IEP team is not clear about the source of the behavior, you should advocate for a behavior analyst to conduct observations of your client and assist the IEP team to develop a new plan.

Similar to a pattern of misbehavior, a pattern of absenteeism may also be a sign of an inappropriate IEP. IEP teams must determine the cause of the absenteeism, as it may be rooted in an inappropriate school placement or lack of support for your client. For example, in Sherri's case, she stopped attending school because she did not understand her work and she was not getting support, despite her repeated requests. You can advocate for the IEP team to develop a plan to address your client's attendance, including measurable goals and incentives for improved attendance, as well as added support to address academic difficulties.

Representing a Student at a School Expulsion Hearing
Despite Sherri's repeated misbehavior at school, Sherri was fortunate that her school never referred her for expulsion. Other students are not so fortunate. Often, a student's initial contact with juvenile court begins with an incident that occurs at school. The school calls the police, and the student is arrested. While the student has a public defender for the delinquency charge, the student may face expulsion from school due to the incident and often does not have legal representation for the expulsion hearing. Representation at expulsion hearings can make a critical difference in the educational experience of court-involved students.

Although students with disabilities can be expelled, there are certain protections that they must be provided prior to and during any expulsion. First, a school must hold a meeting called a manifestation determination review (MDR) to discuss whether the student's behavior was a manifestation of his or her disability. A student's behavior is a manifestation of his or her disability if it was "caused by, or had a direct and substantial relationship to" his or her disability or it was "the direct result of the [school district's] failure to implement" his or her IEP. 20 U.S.C. § 1415(k)(1)(E).

If the student's behavior was a manifestation of his or her disability, then the school cannot move forward with an expulsion hearing and must allow him or her to remain at school. Even if the student's behavior was not a manifestation of his or her disability, the school must still hold an expulsion hearing before expelling him or her.

Second, if the school ultimately expels the student, he or she must still receive services "to participate in the general education curriculum, although in another setting and to progress toward meeting the goals set out in [his or her] IEP." 20 U.S.C. § 1415(k)(1)(D). Therefore, even if a student with a disability is expelled, he or she will still be participating in some type of school program, which will likely be an alternative school.

Preparing for an Expulsion Hearing
Expulsion hearing preparation is similar to trial preparation. While an expulsion hearing is decidedly less formal than a trial, the hearing could have serious repercussions for your client. Prior to the hearing, you should meet with your client to obtain his or her version of the incident. Your client may have a very different version than the school staff, and, as your client's attorney, it is important that you explore his or her point of view.

Sometimes your client may not understand which details are important to his or her defense. You should therefore ask your client to discuss what happened from the moment he or she walked into school on the day of the incident through the end of the school day to ensure that you have sufficient detail to appropriately determine the strategy for the expulsion hearing. Mitigating evidence may exist that you may never discover without asking your client to explain what happened throughout the entire day. For example, if your client faces expulsion for a physical altercation, it is important to know if the alleged victim in the incident harassed your client earlier in the day. You may also want to ask your client about his or her relationship with the alleged victim so that you can better understand what caused the physical altercation to occur.

It is important to carefully consider whether your client will testify at the expulsion hearing. Your client may offer powerful testimony about the incident and why he or she should remain in school. However, you need to be aware of whether there is a delinquency charge pending. Statements in an expulsion hearing could be used against your client in the delinquency case. If your client has a delinquency charge pending, you may want to request that the school district continue the expulsion hearing until after sentencing so that your client may testify without fear of incrimination.

When preparing for an expulsion hearing, you should review all relevant documents and ensure that your witnesses are adequately prepared. You need to review all school records to look for evidence of unrecognized special education needs as well as other potential evidence for the hearing. You should prepare a brief opening and closing statement and conduct direct examinations and cross-examinations as you would at trial. You should introduce mitigating evidence, when appropriate. Be prepared for school staff to question the level of formality that you are bringing to the hearing. Many schools hold expulsion hearings that last only a few minutes, and they are not accustomed to students being represented by attorneys. You can advise the hearing officer of the serious ramifications that the expulsion has for your client and the need to allow for a full examination of the evidence.

Settling an Expulsion Hearing
It may be possible to settle an expulsion hearing, so you should think creatively about potential solutions. For example, your client may not want to continue attending the school at which the incident occurred. If so, you might be able to settle the case with the school district by agreeing that he or she will attend a different school. In return, the school district should dismiss the referral for expulsion. Sometimes, school districts have programs that students can attend in lieu of expulsion (such as anger-management or drug-counseling programs). Some school districts can be adamant about proceeding to an expulsion hearing; nevertheless, exploring settlement is recommended. Your representation at an expulsion hearing ensures that relevant evidence concerning your client is introduced. Your representation also increases your client's chance of remaining in school and preventing further involvement in the juvenile-justice system.

Case Study: Coordinating with Court Personnel
Jack's story exemplifies how coordination with court personnel can make a marked difference in a student's education. Jack, a high-school freshman, was involved in a physical altercation at school, where the police were called and a delinquency case was initiated. He was expelled from school due to the incident and was not receiving any special-education services at the time that Jack's probation officer referred him to EFE. Despite Jack's guardian's multiple requests for an evaluation, Jack's diagnosis of ADHD, and behavioral and academic problems dating back to sixth grade, Jack's schools had never initiated an evaluation. Jack had become involved with the juvenile-justice system at a young age and was already on probation for one case at the time that his probation officer referred him to EFE.

The successful representation of court-involved students like Jack requires coordination with juvenile-court personnel. In the course of EFE's representation of Jack, EFE worked closely with Jack, his guardian, his probation officer, and his court-appointed therapist to identify the ways that Jack had been failed by his school and to determine the types of services that he needed to experience educational success. As a result of this coordination and attendance at several meetings by all of the individuals, Jack's school agreed to re-enroll Jack in school and to evaluate him for special-education services. EFE then secured an appropriate behavior-intervention plan and IEP. This partnership was instrumental in securing Jack the appropriate services at school. EFE is currently appealing Jack's expulsion in the hope of expunging the expulsion from his record.

Shortly after EFE began attending meetings at Jack's school, Jack had his sentencing hearing. EFE consulted with Jack's public defender to see how the EFE could assist in ensuring that the judge did not send Jack to the Department of Corrections. Based on feedback from the public defender, EFE drafted a letter to the judge, indicating its work with Jack and outlining the ways that Jack had contributed to developing an appropriate educational plan for himself. The judge agreed not to send Jack to the Department of Corrections, and Jack has been maintaining regular attendance and a strong effort at school now that he is receiving the appropriate academic and social-emotional support.

The type of coordination present in Jack's case is vital to securing a successful outcome if you represent a court-involved student on an educational matter. For example, if you are representing a student at an expulsion hearing, you should coordinate with the public defender to ensure that you know the status of the delinquency case and that your representation does not harm the delinquency case. In addition, you may have access to school records that are helpful for the public defender, particularly if your client has a disability. It is helpful for the public defender to see records indicating that your client's behavior on the date of the incident was disability-related. Having this information will help the public defender present your client's case to the judge in a favorable light.

EFE has found court personnel receptive to coordinating and cooperating on our clients' cases to ensure optimal outcomes in both educational cases and delinquency cases. Through the assistance of court personnel, you can gain access to information that is helpful to your representation in educational matters. Through your participation in the sentencing process (such as advocating in support of the student remaining at home so that new educational supports can be put into place), you can ensure the optimal outcome in delinquency cases.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Rachel Shapiro and Margie Wakelin – September 28, 2012