May 01, 2012

Seven Things Juvenile Court Judges Should Know about Learning Disabilities

Christopher A. Mallett

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.


Youth who become involved with the juvenile courts have many common background risks.1 These risks are related to the individual (e.g., early aggression, mental health problems, substance use, trauma, education deficits, special education disabilities), family (e.g., inconsistent parenting, family disruptions), and neighborhood (e.g., high levels of unemployment, residential instability).2

Recent research has begun to explore how to ameliorate these risk factors. Because of this, today’s juvenile courts are increasingly focusing on delinquency prevention and diversion. These efforts are important to continue because federal, state, and local budget difficulties are reducing support for the courts, making costly and more punitive dispositions more difficult to justify. In addition, most youth involved with the juvenile courts, outside a small number of serious offenders, can be rehabilitated within the community, in particular through treatment and coordination with other youth-caring systems.3

Learning disabilities have a clear link to youth delinquency, and are one of the most prevalent disabilities within juvenile court populations.4 This article highlights the challenges that youth with learning disabilities present to the juvenile court, summarizes key components of special education disability law, and provides effective strategies to courts working with these youth and families.

1. A learning disability is…

A learning disability is defined by federal statute as “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.”5 It may include related conditions such as brain injury, dyslexia, perceptual disabilities, minimum brain dysfunction, and developmental aphasia; however, it excludes learning problems stemming from environmental, economic, or cultural disadvantage.6

2. Youth with learning disabilities are more likely to be involved in the juvenile justice system.

Special Education Disabilities – General Youth Population

Youth with special education disabilities are not common in the general population. A little over nine percent of school-aged children and youth (ages 6 to 21) have been identified with a special education disability. There are 12 disability categories, the most common of which is the learning disability category, affecting four percent of school-aged children and youth (ages 6 to 21). Such learning disabilities account for 14 percent of all special education disabilities for youth ages 6 to 11 and 26 percent of all special education disabilities for youth ages 12 to 17.7

Certain minority youth are at higher risk for learning disabilities:

  • Hispanics are 17 percent more likely;
  • African Americans are 43 percent more likely; and
  • American Indians are 80 percent more likely.8

Risk factors that increase the likelihood of having a learning disability, and may help explain the disproportionate impact on minority youth, include living in poverty, male gender, poor family functioning, being adopted, and lower household education attainment.9

Juvenile Courts

Youth with special education disabilities are much more common in juvenile court populations, particularly in detention and incarceration facilities. The precise number of youth with special education disabilities is not known because research is limited, and the research that is available does not use uniform definitions. However, it is estimated that between 28 and 43 percent of detained and incarcerated youthful offenders have an identified special education disability, a majority of these being learning disabilities.10

Despite reforms, the number of youth with these disabilities in the juvenile courts does not seem to have varied significantly over the past two decades. In the 1980s a survey of state juvenile correctional facility directors reported a 28 percent rate11 while the most recent survey of state directors reported a 33 percent rate.12

3. No one knows for sure why youth with learning disabilities are overrepresented in the justice system (though researchers are working on it).

Why are youth with learning disabilities at significantly higher risk for juvenile court involvement? The answer is both complicated and not fully understood. There are three primary hypotheses, or explanations – school failure, susceptibility, and differential treatment.

School Failure Hypothesis

The school failure hypothesis suggests that school failure for youth with learning disabilities is a precipitating step that leads to eventual juvenile court involvement or delinquency adjudication. School failure is often accompanied by other challenges including rejection, lower self-worth, and school dropout outcomes that may lead to engagement with negative peers and delinquent activities.13 What is not clear, though, is whether the learning disabilities themselves are the reason for academic failure or if there are other factors influencing the failure.14

Susceptibility Hypothesis

The susceptibility hypothesis proposes that youth with learning disabilities have cognitive, neurological, and intellectual difficulties that contribute to anti-social and delinquent behaviors and place them at greater risk for juvenile court involvement. Thus, in addition to their learning disabilities, youth may also be afflicted with low social skills, impulsivity, hyperactivity, suggestibility, and lower ability to predict the consequences of their behaviors.15

Differential Treatment Hypothesis

The differential treatment hypothesis suggests that while youth with learning disabilities are no more involved with delinquent activities than their nondisabled peers, they are more likely to be arrested and supervised by the juvenile courts. This explanation places the responsibility for this disparity on school, police, and juvenile court personnel’s actions and reactions to working with youth with learning disabilities.

For example, school personnel may be more likely to be aware of these youth because of their learning disabilities, and if the youth act out via delinquent activities, they are more likely to take punitive action and refer them to the police and juvenile courts whose personnel in turn may repeat this pattern.16

4. There are laws to protect the rights of youth with learning disabilities.

Individuals with Disabilities Education Act and other Disability Rights Laws

Before the 1970s there were no significant laws that protected the rights of people with disabilities.17 The shift from services for this population to political and civil rights occurred primarily because of four Federal laws: the Rehabilitation Act of 1973 – Section 504; the Americans with Disabilities Act (ADA, 1990); the Civil Rights of Institutionalized Persons Act (CRIPA, 1980); and the Individuals with Disabilities Education Act (IDEA, 1975).

Disability Rights Laws

Section 504 of the Rehabilitation Act was the first law, and predecessor to the ADA, to state that the exclusion of a person with a disability was discrimination, allowing class status for this group, mandating affirmative conduct, and requiring accommodations.

The law applied to all recipients of federal funds and to almost all public schools. This entitles children and youth with disabilities to an education comparable to that provided to children and youth who do not have disabilities.

Disabilities are broadly defined and can be demonstrated by both a record of the physical or mental impairment and the fact that the impairment substantially limits one or more major life activities such as walking, seeing, hearing, learning, speaking, working, caring for oneself, and performing manual tasks.18

The ADA is a broad disability rights law that pertains to public accommodations, employment, transportation, telecommunication, and state and local government discrimination. Additionally, Title II of the ADA expanded the rights for those with disabilities (physical and mental) to include all activities of state and local governments, including services, programs, and public education, whereby Section 504 only applies to federally funded entities.19 The ADA does not list specific disabilities or impairments covered, and the courts have been defining these disabilities over the past decade.20

The Civil Rights of Institutionalized Persons Act does not confer additional rights upon those with disabilities (adults and youth) but does authorize the U.S. Attorney General (Civil Rights Division) to investigate conditions of confinement in institutions, including juvenile detention and correctional facilities.21 This investigatory tool has been infrequently utilized.22

Individuals with Disabilities Education Act

The most important of these laws for youth is the Individuals with Disabilities Education Act (IDEA) because it protects their educational rights. The original law, the Education for All Handicapped Children Act (1975), established these rights, while subsequent amendments have made important changes and improvements.

In 1990, the Act was renamed the Individuals with Disabilities Education Act; in 1997, substantial requirements were appended to focus on behavioral assessments, transitional planning, and school discipline within Individualized Education Programming (IEP), and in 2004, increased focus was placed on employment and independent living. Rights under the previous discrimination laws (Section 504 and ADA) can be incorporated and included within the rights and services under IDEA.23 The core educational right provided by the IDEA is that all students with certain defined disabilities – the 12 categories – should receive a free, appropriate, public education (FAPE) in the least restrictive environment (LRE).24

5. Youth with identified learning disabilities are entitled to receive special consideration in schools and court.


All children and youth residing in the United States, including those in public and private schools, and those who are homeless and wards of the state, must be identified. Schools must locate and evaluate all children and youth with these disabilities and determine which are receiving special education services (the “child find obligation”).25 Often, states have additional policies and regulations in place to designate who may refer children and youth for special education evaluation.26

To determine eligibility for special education services, states must first notify parents or guardians, obtain their consent to evaluate, use a number of validated assessment measures administered by knowledgeable personnel, and provide for reevaluation.27 State policies and regulations normally set notice, consent, evaluation, and reevaluation time limits. A reevaluation must occur at least every three years until age 21, but may be requested by the child or youth’s parents or teachers at any time.28

Individualized Education Plan

If the evaluation determines that the child or youth is in need of special education services, school districts are required to have an Individualized Education Plan (IEP) in effect at the beginning of each academic year for each child and youth with an identified disability. No more than 30 calendar days may pass between the determination that a child or youth needs disability services and an IEP-development meeting.29

The IEP team meeting must include the child’s parents or guardians; at least one regular  education teacher of the child; at least one special education teacher or service provider, if appropriate, of the child; an individual who can interpret the evaluation results (e.g., school psychologist, speech/language pathologist, remedial reading teacher); a qualified public school district representative; the child, if appropriate; and others, with parental consent, who have knowledge/expertise regarding the child or youth (may include service providers, probation officers, institutional staff, or others with specialized knowledge).30 Parents must be notified in advance and agree to a convenient time and place for the IEP team meeting. In addition, parents must be notified of their consenting rights regarding others present.31

The team, when developing the IEP, considers the youth’s present level of educational performance, special education needs, services to be delivered, objectives to be met, timelines for completion, and progress assessment.32 All IEPs must include certain provisions (see Table 1).

The implementation of the IEP must occur “as soon as possible” after the initial IEP team meeting. It must be reviewed by the team at least once per year and revised as needed per progress made (or not), reevaluation results, and youth

Due Process Protections

Youth with special education disabilities may be suspended for up to 10 days for actions for which a youth without a disability would be suspended for up to 10 days. Further, a youth with a disability may be removed to an interim, 45-day alternative educational setting for carrying or possessing a weapon to school or school function, selling or soliciting the sale of controlled substances, or knowingly possessing or using illegal drugs. This alternative placement may also be for other actions or behaviors that are substantially likely to result in injury to the youth or others.

Disciplinary removal for more than 10 days, counted cumulatively for repeat suspensions, requires the school district to review the youth’s functional behavioral assessment and behavioral implementation plan, or, if there is not one in place, to mandate an IEP review to devise a plan. These procedural safeguards also apply to youth who have been identified by the school, in writing, as potentially having a disability, whether or not a formal referral and evaluation have been initiated.34

It is important to know that parents may review all records, participate in all meetings, and initiate due process proceedings, as well as dispute mediation concerning the identification, evaluation, and educational placement of their children.35 If the youth is a ward of the state, a surrogate parent is assigned to protect the youth’s educational rights.36

Due process hearings conducted by the state are available through parent initiation, whereby the officer (not employed by the state) conducts the hearing, and the parents, who have the right to legal counsel and to other individuals with specialized
knowledge of their youth’s disability, present evidence, confront, cross-examine, and compel witness attendance.37

In addition to due process (and civil) remedies, states have in place a compliance procedure for IDEA violations.38 During any due process proceedings the youth will maintain his or her current educational placement, commonly referred to as the “stay put” rule.39

6. The juvenile justice system can and should coordinate with the school system throughout a youth’s adjudication process.

The challenges posed by youth with learning disabilities differ according to a youth’s penetration into the juvenile court system.


A pivotal time for the youth with disabilities in the juvenile court system is at intake. Early identification of youth with learning disabilities and coordination with the school district are crucial for positive outcomes. Court personnel should be effectively trained in interviewing youth and families, gathering educational records, becoming familiar with local educational services at placement facilities (if potential exists), and coordinating the juvenile court activities with the youth’s IEP team.

In particular, personnel should use standardized screening tools to help identify these disabilities, which are often not readily apparent.40 This information may indicate the need for an initial evaluation, reevaluation, or modification of existing IEP services. Courts would have to obtain parental consent to gain access to school records, followed by written requests to the school districts, as mandated by the Family Educational Rights and Privacy Act (FERPA). If the parent does not consent, access is denied.41 If a school reports a crime by a youth with a learning disability (or other special education categories), then disability-related and discipline records should be made available as allowed under FERPA.42

Formal Proceedings

Once formal proceedings within the juvenile court have been initiated, continued coordination with the school district is necessary. If at intake there are indications of learning disability problems, then working with the school district to pursue an evaluation is most important. Youth who are not properly identified by the school districts, and whose disabilities are therefore not being addressed, are at a higher risk for delinquent activities and juvenile court referral.43

However, convincing school districts to evaluate secondary school-aged youth for learning disabilities, or other special education concerns, is much more difficult than younger children for a variety of reasons including cost, norms, and resources. Juvenile court judges work largely with secondary school-aged youth and should be prepared to take aggressive steps (dispositions) to confront these barriers to accessing evaluations and services. However, if the youth is already identified with a learning or other special education disability, the school’s responsibility will not change if the youth is formally charged, adjudicated, detained, or incarcerated by the juvenile court.44


The use of detention to assure the safety of the youth or the community is an important decision by the juvenile court judge. Youth with learning disabilities are disproportionately detained. The reasons for this are still not clear, however it may be that these youth have poorer presentation abilities; maladaptive behaviors as a result of the “disabilities.”45

Whatever the reasons, extended detention will most likely not be helpful for these youth and may at some point be harmful because the detention experience itself is correlated to later reoffending and recidivism.46

7. There are strategies that the juvenile justice system can use with youth with learning disabilities.

Having a learning disability neither excuses nor negates a youth’s delinquent behaviors and actions. However, learning disabilities may have a significant impact on a youth’s cognitive abilities, development, and judgment. Finding an appropriate way to work with youth with learning disabilities is challenging but vital in decreasing their delinquent activity. There are a number of steps the juvenile court can take, including strategies for intake personnel, probation officers, and juvenile court judges (see Tables 2 & 3).

Recommended Practices

There are a variety of “recommended practices” for juvenile court judges working with and ensuring school districts adhere to the IDEA. While becoming involved with and overseeing school districts, with or without dispositional mandates, is not always a cooperative process, achieving collaboration can be very beneficial in meeting youth’s special education needs and using the school district’s more expansive interventions and programming. 

Many youth with learning disabilities involved with juvenile courts also have other behavioral problems, mostly related to mental health. Juvenile court judges can be effective in making sure these youths’ functional behavioral assessments are completed, as required under the IDEA.47 Today, many youth who could benefit from school district efforts do not because the behavioral plans have design flaws or are inadequate, requiring an IEP reassessment. It is important to ensure these behavioral assessments and interventions are achieving the desired results.

Outside of the court there are, unfortunately, limited programs and interventions developed specifically to address juvenile justice-involved youth with learning disabilities. Although there are recommendations for juvenile correctional facility school programs to meet these youth’s special education needs and a wider array of effective programs for youth who have behavioral disorders,48 more progress is needed in identifying specific interventions for this population. However, as discussed, juvenile court judges have opportunities under the IDEA to effectively work with and supervise youth who have these difficulties. One of the key points to reinforce is that coordination across the youth-care systems is effective practice, though it is not without barriers.

One example of coordination across the youth-care system is the TeamChild Model, a separate nonprofit agency that effectively works through many coordination barriers. This model pairs defense attorneys with social workers and others to represent court-involved youth with disabilities. Through advocacy, case management, and coordination efforts during the youth’s court involvement, the Team addresses education (including special education), mental health, living situations, and vocational needs as factors underlying delinquency. The Team works closely with the school districts and educates court personnel on non-justice related issues that are impacting the youth’s decision making. This model has been found effective in several communities including Seattle, Washington (returning $2 dollars in savings for every $1 spent within six months)49  and in Cleveland, Ohio (saving $620,000 in placement costs over 18 months for just 41 high risk offenders).


Working with juvenile court-involved youth with learning disabilities poses many challenges – the significant number of youth with these problems, the barriers in accurately identifying these disabilities, school districts that do not always adhere to IDEA, and courts that are not always equipped with the knowledge or programming to effectively intervene. While juvenile courts must balance youth rehabilitation and accountability, ongoing evaluation and attention to youth with learning disabilities is important in reducing recidivism and subsequently improving community safety.

Christopher A. Mallett, Ph.D., Esq., LISW is a professor at Cleveland State University. He has worked with and advocated for at-risk youth and families in Ohio, Maryland, and the District of Columbia within juvenile justice, mental health, and special education settings.

Seven Things Every Juvenile Court Should Know About Learning Disabilities,
published by the National Council of Juvenile and Family Court Judges, Reno, Nevada, © 2010, National Council of Juvenile and Family Court Judges. All rights reserved.

Disability Defined

The Individuals with Disabilities Education Act (IDEA) is often referred to as the “special education law” because these individual disabilities are categorized as special education needs. Under the IDEA, 12 distinct disabilities are covered; in other words, not all youth disabilities qualify. These 12 disabilities include learning disabilities; hearing impairments (including deafness); visual impairments (including blindness); deaf-blindness; mental retardation; speech or language impairments; autism; serious emotional disturbance; orthopedic impairments; traumatic brain injury; multiple disabilities; and other health impairments. To qualify, a youth must have at least one of these listed   disabilities and need special education and related services “by reason of such impairment.” 34 C.F.R. § 300.8(a)(1) (2004).


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4. Mallett, C. (2008). The disconnect between delinquent youths with mental health and special education disabilities and juvenile court outcomes. Corrections Compendium, 33(5), 1-23; Mears, D. & Aron, L. (2003). Addressing the needs of youth with disabilities in the juvenile justice system: The current state of knowledge. Washington, DC: The Urban Institute; Quinn, M.M., Rutherford, R.B., Leone, P.E., Osher, D.M., & Poirier, J.M. (2005). Youth with disabilities in juvenile corrections: A national survey. Exceptional Children, 71(3), 339-345.

5. 34 C.F.R. § 300.8(c)(10)(1) (2004).

6. 34 C.F.R. § 300.8(c)(10)(i-ii).

7. U.S. Department of Education. (2009). 29th annual report to Congress on the implementation of the Individuals with Disabilities in Education Act, 2007. Washington DC: Author; U.S. Department of Education. (2010). Digest of education statistics, 2009 (NCES 2010-013). Washington, DC: National Center for Education Statistics.

8. Supra note 7, U.S. Department of Education (2009).

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11. Rutherford, R.B., Nelson, C.M., & Wolford, B.I. (1985). Special education in the most restrictive environment: Correctional/special education. Journal of Special Education, 19, 59-71.

12. Quinn et al., supra note 4.

13. Malmgren, K., Abbott, R.D., & Hawkins, J.D. (1999). LD and delinquency: Rethinking the “link.” Journal of Learning Disabilities, 32, 194-200; Morris, K.A. & Morris, R.J. (2006). Disability and juvenile delinquency: Issues and trends. Disability & Society, 21(6), 613-627; Waldie, K. & Spreen, O. (1993). The relationship between learning disabilities and persisting delinquency. Journal of Learning Disabilities, 26, 417-423.

14. Cruise, K.R., Evans, L.J., & Pickens, I.B. (2010). Integrating mental health and special education needs into comprehensive service planning for juvenile offenders in long-term custody settings. Learning and Individual Differences, 21, 30-40.

15. Brier, N. (1989). The relationship between learning disability and delinquency: A review and reappraisal. Journal of Learning Disabilities, 22, 546-553; Larson, K.A. (1988). A research review and alternative hypothesis explaining the link between learning disability and delinquency. Journal of Learning Disabilities, 21, 357-363, 369; Murray, C. (1976). The link between learning disabilities and juvenile delinquency: Current theory and knowledge. Washington, DC: U.S. Government Printing Office; National Center on Education, Disability, and Juvenile Justice (2001). Juvenile correctional education programs. College Park, MD: Author.

16. Keilitz, I., Zaremba, B.A., & Broder, P.K. (1979). The link between learning disabilities and juvenile delinquency: Some issues and answers. Learning Disabilities Quarterly, 2, 2-11; U.S. Department of Education. (2001). Twenty-first annual report to Congress on the implementation of the Individuals with Disabilities Education Act. Washington, DC: Author.

17. Longmire, P.K. & Umansky, L. (2000). The new disability history: American perspectives. New York: New York University.

18. Pub. L. No. 93-112, 29 U.S.C § 701.

19. Pub. L. No. 101-336, 42 U.S.C. § 12101 et seq.

20. Petrila, J. & Levin, B. (2004). Mental disability law, policy, and service delivery. In B. Levin, J. Petrila, & K. Hennessy (Eds.), Mental health services: A public health perspective (pp. 42-71). New York: Oxford University Press.

21. Pub. L. No. 96-247, 42 U.S.C. § 1997 et seq.

22. Mears, D. & Aron, L. (2003). Addressing the needs of youth with disabilities in the juvenile justice system: The current state of knowledge. The Urban Institute, Washington D.C.

23. Burrell, S. & Warboys, L. (2000). Special education and the juvenile justice system. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice.

24. Pub. L. No. 101-476, 20 U.S.C. § 1400 et seq.; 34 C.F.R. § 300.101; 114.

25. 34 C.F.R. § 300.111.

26. Supra note 23.

27. 34 C.F.R. § 300.304.

28. 34 C.F.R. § 300.303. A reevaluation may not occur more than once a year unless the parent(s) and the public agency agree otherwise.

29. 34 C.F.R. § 300.323(c)(1).

30. 34 C.F.R. § 300.321.

31. 34 C.F.R. § 300.322.

32. 34 C.F.R. § 300.324.

33. 34 C.F.R. § 300.323.

34. 34 C.F.R. § 300.530.

35. 34 C.F.R. § 300.501-504.

36. 34 C.F.R. § 300.519.

37. 34 C.F.R. § 300.507-516.

38. 34 C.F.R. § 300.537.

39. 34 C.F.R. § 300.514.

40. Mulvey, E.P. & Iselin, A.R. (2008). Improving professional judgments of risk and amenability in juvenile justice. The Future of Children, 18(2), 35-57; L.G. Arthur. (Ed.). (1991). Learning disabilities and the juvenile justice system (pp. 51-56), Reno, NV: National Council of Juvenile and Family Court Judges; Steen, S., Bond, C., Bridges, G, & Kubrin, C. (2005). Explaining assessments of future risk: Race and attributes of juvenile offenders in presentencing reports. In D.F. Hawkins & K. Kempf-Leonard (Eds.), Our children, their children: Confronting racial and ethnic differences in American juvenile justice (pp. 245-269). Chicago: University of Chicago Press.

41. 34 C.F.R. § 99.30-39.

42. Supra note 23.

43. National Council on Disability. (2002). National disability policy: A progress report, December 2000. Washington, DC: Author.

44. State of Connecticut v. David F., 29 IDELR 376 (Conn. Super. Ct. 1998); Cabot School District (No. H-99-02), 29 IDELR 30 (Ark. 1998); Andre H. v. Sobol, 84 Cir. 3114, U.S. Dist. Ct. of S. Dist. of NY (case settled, 1990).

45. Larson, K.A. (1988). A research review and alternative hypothesis explaining the link between learning disability and delinquency. Journal of Learning Disabilities, 21, 357-363, 369.

46. Holman, B. & Ziedenberg, J. (2006). The dangers of detention: The impact of incarcerating youth in detention and other secure congregate facilities. Baltimore, MD: Annie E. Casey Foundation; Mallett, C. & Julian, L. (2008). Alternatives for youth’s advocacy program: Effectively reducing minority youth’s detention and incarceration placements in Cleveland, Ohio. Juvenile and Family Court Journal, 59(3), 1-17; Mulvey, supra note 3.

47. Supra note 14; Kvarfordt et al., supra note 10.

48. Office of Juvenile Justice and Delinquency Prevention. (2011). OJJDP Model Programs Guide. Washington, DC: Office of Justice Programs, U.S. Department of Justice.

49. Washington State Institute for Public Policy. (1998). Watching the bottom line: Cost-effective interventions for reducing crime in Washington. Olympia, WA: Evergreen State College.