The education rights available to all students verified with disabilities include the right to a free appropriate education, which is defined as an IEP that is reasonably calculated to enable a child to make progress in light of the child’s circumstances and that contains challenging objectives. Creating this program involves multiple evaluations, including academics, cognition, communication, independence, physical and mental health, and social and emotional learning. The results of these evaluations are then used to determine baselines of present levels of academic achievement and functional performance, from which specific goals are developed. The purpose of the goals is to outline detailed measurable skills the child can develop over the year. Goals can be related to academic and social and emotional behavior, as well as things like attendance and self-advocacy. The goals drive the services that the school will provide. Services can be direct or “related” (for example, they can include individualized academic instruction, occupational therapy, speech, physical therapy, and more). An IEP, for children 14 and older, must also contain “transition” goals, which help identify skills that a child will need for independent living, which also are to be taught. Parents must be given “meaningful participation” in the development of an IEP, and where appropriate, the child should be included. Through the IEP process, functions that drive a student’s behavior are identified, and positive behavior interventions, including behavior instruction, can be implemented. When a child has education deficits, an IEP can be a complete “game changer” to move a child’s skill set forward. Without one, a child who starts out with a simple academic challenge can become a child who is disengaged, distracted, truant, or delinquent.
Education Rights Counsel (ERC), a nonprofit public interest firm, opened its doors in the fall of 2017. ERC serves a unique niche across the state of Nebraska, representing under-resourced families who struggle to obtain education services and supports for their children. ERC has a service model that provides pro bono consults and direct representation, training (free general sessions and contracted tailored classes), and research and policy work. Families in poverty often face significant hurdles to ensure their children have access to a free appropriate public education, and this educational inequity disproportionately affects children who have been through trauma or who have invisible disabilities.
As ERC’s programming developed, it became clear that a new approach to address the educational challenges of children and youth in the child welfare system was necessary. Too many children were entering the system with no education supports though they had clear education needs. Without a new approach, children were floundering or, worse, were being disserved by those appointed to help, and from time to time, a child’s intellectual disabilities were not adequately being identified. In 2020, in conjunction with the separate Juvenile Court of Douglas County, Nebraska (the state’s most populous and urban county), ERC envisioned and advocated for limited-representation education counsel to be appointed by the court to be the education decision-maker when education struggles are apparent. Counsel help obtain appropriate education supports and services, resulting in faster reunification, permanency, or satisfactory termination of court oversight. Since 2020, ERC has been appointed to represent hundreds of families in Nebraska’s three separate urban juvenile courts (Douglas, Sarpy, and Lancaster Counties). Judges have embraced ERC’s support as a fact finder and vigorous advocate with a unique ability to work directly with schools and families, and the courts continue to secure payment for education counsel because of the benefits that they see to kids in front of them. ERC’s work includes attending school meetings and school hearings, juvenile court “best interest decision” hearings, adjudications, dispositions, probation checks, review and permanency planning hearings, and motions for competency, and engaging in the entire administrative due process set forth by IDEA.
With more than 54,000 students in Nebraska identified as having special education needs, over 26,000 of whom live in poverty, ERC recognizes that the sustainability of programming requires extensive education to empower advocates for children across the state. Nebraska’s juvenile court system is bifurcated, with 90 of Nebraska’s 93 counties handling juvenile cases in county courts (not separate juvenile courts), which also handle certain criminal cases, traffic violations, and civil actions. There are only 58 county court judges spread across these 90 counties, covering a vast territory of about 77,000 square miles. This, coupled with an attorney shortage in more rural areas, substantiates the need for ERC’s robust training programming.
ERC has trained thousands of individuals on student education rights and school responsibilities. ERC also partners with local universities to train law students in clinics that assist families in juvenile court. We do this because education supports for all children in any juvenile system provide a vital source of stability. They mitigate some of the negative impacts of abuse or neglect and equip families with the skills to overcome challenges, achieve economic independence, and break cycles of poverty. A lack of knowledge about how to navigate educational rights and a failure to address school needs can lead to frequent foster parent changes, or other changes of placement, that unnecessarily disrupt learning continuity and sometimes can result in a failure to reunify or to find permanent placement.
It is also of note that youth who are detained or incarcerated do not lose their educational rights, particularly their right to special education services. Often, children in correctional facilities were not appropriately identified as students with special education needs. ERC works specifically with correctional and detention facilities to support the identification of youth with special needs, helping systems themselves recognize how to serve or obtain services.
In addition, health care providers are a critical part of assisting their patients in obtaining appropriate services. While many pediatricians are called upon for IEP assistance, research has shown a significant gap in training on how to help patients benefit from special education services. Verification for special education services does not require a diagnosis, nor does a diagnosis guarantee that services will be provided. Part of ERC’s training is focused on partnering with providers to increase their understanding of student rights to services and best practices to support obtaining those services.
Training of all those involved with system-involved children permits and promotes county court appointment of limited-representation education counsel across the entirety of Nebraska. While juvenile legal structures in every state differ, appointment of limited-representation education counsel is replicable across states. The authority of courts to appoint limited-representation education counsel is similar in all states that generally prioritize juvenile rehabilitation over punishment. Usually, the court’s authority in a juvenile case extends not only to the juvenile but also to the juvenile’s parents or guardians, and courts have the duty to ensure the rights of all juveniles to develop their capacities for useful citizenship. Juvenile courts generally are permitted to require intervention with nonjudicial resources (for example, the ordering of evaluations and the placement of children in a variety of settings) and to ensure that all the legal rights of the juvenile and the parents are recognized and enforced. In every state, parents have a duty to ensure their child attends school and the child is required to attend; all children have a state and federal right to public education and to services and accommodations for any disabilities. Federal and state laws also require courts to make “best interest” decisions for students that include school placement. When the juvenile code is liberally construed to effectuate its purposes, appointment of education counsel secures informed legal support for education decision-makers. With it, they can meet the court’s typical order that a child “attend all regular sessions of school without any unexcused absences or tardiness and work to his/her full potential while at school.”
Through court appointment to represent the education decision-maker, education counsel assists in performing complex tasks that require the knowledge, skill, and experience of an education lawyer who can actively advocate for what the IDEA, Section 504 of the Rehabilitation Act, and the ADA require; who can navigate state statutes concerning student discipline; who can actively participate in all hearing and conferences with the court on issues within the scope of counsel’s appointment; and who is licensed to seek legal remedies on behalf of the client through administrative due process and the courts.
Conclusion
Appointment of limited-representation education counsel in the juvenile courts works to ensure children in the system obtain legally required education services and supports. Too many children in the juvenile system have unmet special education needs that go unrecognized and negatively affect outcomes. The instruction and supports required by IDEA, Section 504 of the Rehabilitation Act, and the ADA are robust, but without direct counsel, parents and others may not know how to advocate for them. All those involved with system-involved youth benefit from simple, direct, clear advocacy and empowerment that comes from education attorneys working with education decision-makers for better education outcomes.
