V. Special Education and Juvenile Justice

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Dated March 15, 2012

Because a large percentage of juveniles in the juvenile justice system have disabilities, special education issues may interact with juvenile proceedings. Sometimes the juvenile proceeding results from an infraction at school, causing an overlap between IDEA and juvenile proceedings. Also, different stages of the juvenile justice present various disability considerations.

A. Juveniles with Disabilities in Juvenile Justice

Juveniles in the juvenile justice system are far more likely than other juveniles to have identified as well as undiscovered disabilities. Studies show varying results. One fairly recent study showed that 45.2% of detained or incarcerated juveniles were reported to have a disability.¹ (The percentage of children and youth with disabilities in the general population was only 8.82%.)² Seventy percent of juveniles in the juvenile justice system may suffer from disabling conditions.³ As many as 90% may have a mental health disorder.⁴ About 20% have a serious mental disorder.⁵ The rate of PTSD among youth involved in juvenile justice is comparable to the PTSD rate of soldiers returning from deployment.⁶ A recent estimate in Colorado was that one-fourth to one-third of juvenile cases studied in 2002 involved mental health issues.⁷

Juveniles with disabilities are more likely to make poor decisions that lead to involvement in crime and more likely to get caught. They may have social skill deficits that result in harsher treatment in the justice system and may have learning difficulties that make it more difficult for them to be rehabilitated.⁸

Learning disabilities and emotional disorders are the two most common disabilities found in the juvenile justice system.⁹ Twenty percent of students with emotional disabilities are arrested at least once even before leaving school.¹⁰ By the time disabled juveniles have been out of school for three to five years, 31% of those with learning disabilities and 58% of those with emotional disturbance have been arrested.¹¹

The behavioral disorders most commonly co-occurring with delinquency are Attention Deficit Hyperactivity Disorder (ADHD) and conduct disorder.¹² (See definitions under Conduct problems reflect improper regulation of the anxiety and anger systems and may reflect a variety of anger and mood disorders, including Post Traumatic Stress Disorder (PTSD).¹³

Information about a juvenile’s disability is relevant:

• to determine whether formal delinquency proceedings should proceed;
• to direct investigation and case strategy;
• to explain behavior and suggest constructive intervention; and
• to achieve disposition that is rehabilitative and complies with IDEA.¹⁴

Disabilities should be considered and addressed not only because of statutory rights, but because society benefits if a juvenile deals with underlying problems and becomes a productive citizen. For a juvenile with disabilities, justice and rehabilitation goals can be best served by pursuing solutions within the special education framework, as well as through the juvenile justice system. Even a juvenile who has dropped out of school is eligible for special education services under IDEA until he or she reaches twenty-one years of age.¹⁵

Juvenile judges should take some time to acquaint themselves with special education law as it applies to the juvenile justice system. Attorneys advocating for juveniles should either devote time to learning special education law or collaborate with outside special education attorneys.

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.

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.¹⁶

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.

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.¹⁷ 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.¹⁸

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.¹⁹
• 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.²⁰ 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.²¹

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.²² 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).²³

“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.”²⁴ 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.²⁵

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.)

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.²⁶ Even if there has been an evaluation under IDEA, a more comprehensive disability or mental health evaluation may be needed.²⁷ 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.²⁸

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.

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.²⁹ Juveniles with emotional disturbance may be able to function well in school with “positive behavioral supports.”³⁰

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.³¹ Advocates should also ensure the prosecution and probation officers have access to information about the juvenile’s educational status.³²

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.³³

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.³⁴ At a minimum, the juvenile may need special support to succeed in these programs.

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.³⁵

Special Education Issues at Different Stages of Juvenile Justice Proceedings

1. Intake

If a juvenile has a disability, counsel should notify the court and present information about the disability, including information relevant to a decision for further detention.³⁶ The court should obtain a juvenile’s educational history, especially as related to special education, either with parental consent or by court order.³⁷ Under IDEA, if the school district has reported the crime, it must provide special education records to authorities:

An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.³⁸

If it appears that a juvenile may have developmental disabilities or a mental illness, the court should order an eligibility determination or prescreening.³⁹ Indeed, at any stage of delinquency proceedings, if “the court, prosecution, probation officer, guardian ad litem, parent, or legal guardian has reason to believe that the juvenile could benefit from mental health services,” that person is required to advise the court immediately.⁴⁰ The court, unless it already has sufficient information to determine whether the juvenile could benefit from mental health services, or a screening has been completed within the last three months, is required to order a screening.⁴¹ A standardized screening procedure for the assessment of mental illness is available for juveniles in the juvenile justice system.⁴² This should include trauma screening.⁴³ If the juvenile does have developmental disabilities or a mental illness and is then placed in treatment or receives services, “the court may suspend the proceedings or dismiss any actions pending in the juvenile justice system.”⁴⁴

The court and a juvenile advocate should consider whether there is a possibility that, because of a disability, the juvenile does not understand the charges and needs accommodations.⁴⁵ These accommodations may mean more time for the explanation of rights, providing written explanations of charges and the juvenile’s rights, and creating a quiet atmosphere in the court room.⁴⁶ If a juvenile is on medication and will continue to be detained, the court can enter an order providing for the administration of medication.⁴⁷

The juvenile’s disability can be considered in the decision of whether to divert, and the diversion contract can reflect accommodations for the disability.⁴⁸

2. Offenders with Mental Retardation

Research shows that offenders with mental retardation often fare poorly in the juvenile justice system for reasons related to their disability. The following factors may be true. Offenders with mental retardation:

• “May not understand the implications of the rights being read to them;
• May confess quickly when arrested and say what they think another person wants to hear;
• May have difficulty communicating with a lawyer and other court personnel;
• May not be recognized as mentally retarded by lawyers and other court personnel;
• Are more likely to plead guilty, are more often convicted of the arresting offense, and are less likely to plea bargain for a reduced sentence than a person without retardation;
• Are less likely to have their sentences appealed;
• Are less likely to receive pretrial psychological examinations;
• Are less frequently placed on probation or in other diversionary non-institutional programs;
• Once in a correctional facility, are slower to adjust to the routine, have more difficulty learning regulations, and accumulate more rule infractions, thus limiting access to programs and parole opportunities;
• Are less likely to take part in rehabilitation programs;
• Are often the recipients of practical jokes and sexual harassment in correctional institutions; and
• Are more frequently denied parole and serve longer sentences than non-retarded offenders incarcerated for the same crimes.”⁴⁹

3. Detention

Juveniles “taken into secure custody at the time of arrest are entitled to judicial review of the detention decision within a statutory time period.”⁵⁰ Juveniles with disabilities are detained disproportionately, possibly because they lack the communication and social skills to make a good presentation to arresting officers or probation officers, and their behavioral affect may seem inappropriate—for example, hostile, unconcerned, or overly emotional.⁵¹ Both judges and attorneys should explore the existence of disabilities, and whether a juvenile’s difficulties with listening, thinking, and speaking may be creating an inaccurate impression of dangerousness or flight risk.⁵²

Particularly if special education evaluation or adjustments in the IEP are needed, a program such as home detention may be appropriate.⁵³ A juvenile’s eligibility for educational services that will reduce the risk of dangerousness or flight, such as counseling and other supports, may impact the detention decision.Even if the juvenile’s IEP does not require those services, the juvenile’s parent can request that the multi-disciplinary team reevaluate the IEP.⁵⁴

Juvenile detention facilities must provide a broad array of educational and rehabilitative services.⁵⁵ The educational process in the detention center is administered differently from the Division of Youth Corrections (DYC). In Colorado, schools in the detention centers are administered by the school district in which the detention center is located.⁵⁶ The school districts count these students for purposes of financing.⁵⁷ Once a juvenile is sentenced, education falls under the DYC. Thus, although detained and sentenced juveniles may be at the same facility, a different administrative body is responsible for their education.⁵⁸ The Colorado Department of Education works closely with both the DYC and the Department of Corrections (DOC) to provide technical support and assistance to enhance academic standards and implement a Response to Intervention model.⁵⁹ The juvenile’s advocate should be aware of exactly who is responsible for implementing the IEP or performing evaluations.

Under IDEA, Child Find obligates institutions to identify all juveniles with disabilities. This should occur even in short-term facilities such as detention centers, partly because useful information can later be shared, and partly because some juveniles end up spending long periods of time in short-term facilities.⁶⁰ Failure to provide services in a detention facility may be a violation of IDEA.⁶¹ However, for a short-term confinement, it is sufficient to implement the existing IEP.⁶²

At detention facilities, staff should ask if the juvenile is taking medications or has a valid disability.⁶³ Possible accommodations for a disability could include providing a clear explanation of detention rules with a written copy, contacting the juvenile’s school for the IEP, and making needed accommodations in programs.⁶⁴

4. Transfer to Adult Criminal Court

The determination as to whether a juvenile offense should be direct filed in adult court may be impacted by the existence of disabilities, and the possibility of addressing them through special education and related services available through the Division of Youth Corrections or other facilities for the secure confinement of serious juvenile offenders.⁶⁵ The determination may also be impacted by proving that the juvenile never received services to which he or she was statutorily entitled, and that receiving those services might affect the potential for rehabilitation.⁶⁶

5. Pre-sentence Investigations and Probation

Special education needs should be part of the social study report prepared by the probation department. Statutorily, the pre-sentence investigation may address the “juvenile’s education history, including any special education history and any current individual education program the juvenile may have . . .”⁶⁷ Whether or not the probation department recommends probation, special education needs should be part of the social study report.⁶⁸

However, an order for probation may be a more likely and a more appropriate resolution, when a full range of special education services, formalized in an IEP, is available.If the probation department receives this information in advance of sentencing, it can determine how to incorporate the plan into the pre-sentence report and what recommendation to make.⁶⁹

If a court orders probation, “the court may order the juvenile to comply with his or her individual education program, taking into account the intellectual functioning, adaptive behavior, and emotional behaviors associated with the juvenile’s disabilities, and subject to a manifestation determination . . .”⁷⁰

The court would always want to have DHS involved to make a public placement, and DHS would want to notify the school district. “If a court or public agency makes a public placement but fails to provide the required written notice, such court or public agency shall be responsible for the tuition costs for the child until such time as the required notification is made.”⁷¹

6. Trial and Evidentiary Issues

The extent and nature of a disability, and its effect on a youth’s thinking and acting, may be significant in determining evidentiary issues. For each of these evidentiary determinations, an accurate special education evaluation and diagnosis would be helpful.

• Insanity:when mental illness or mental status affect functioning to the point that a juvenile may be legally insane under State law (emotional disturbance, traumatic brain injury, etc.)
• Incompetence: when a juvenile is unable to understand the nature of juvenile court proceedings, unable to assist the defense attorney, or unable to make decisions to exercise or waive important rights (low level of intellectual functioning, emotional disturbance, distractibility, perceptual or communication problems).⁷² When a juvenile is incompetent, the juvenile may not be tried or sentenced.⁷³ The motion may be raised by any one of a number of people, and the court must determine competency.⁷⁴
• Intent to commit the offense (mens rea): may be affected by a disability, especially one involving limited mental functioning or severe emotional disturbance.
• Confessions: admissibility of confessions in terms of validity of Miranda waivers may be affected by a number of disabilities (comprehension of written materials, mental retardation, involuntary confession by emotionally disturbed juveniles).⁷⁵ Studies of male adolescents’ ability to understand Miranda warnings indicate that “young people with lower IQ levels and those with learning disabilities misunderstand rights intended to guard against self-incrimination.”⁷⁶

A juvenile with a disability might need special accommodation in court proceedings. For example, an auditory processing disorder might require more clear communication and feedback, such as calling the juvenile up to the bench. Careful and simple explanations and extra discussion from judges and attorneys may help, as may parental assistance.⁷⁷ Asking a juvenile to explain, in his or her own words, the information that has been conveyed may confirm understanding or reveal any problems.⁷⁸

7. Disposition and Sentencing

Pursuing educational support for the juvenile may offer the court a broader range of constructive choices.⁷⁹ If a youth has an IEP, the court can ask if the juvenile received appropriate services and if the IEP was implemented.⁸⁰ If a mental health screening was ordered, the court may also continue a dispositional or sentencing hearing to await the results.⁸¹

The court can also consider any manifestation determination held by the school for “probative evidence about whether conduct was, in fact, a manifestation of disability.”⁸² The answer may have bearing on a just disposition.

A disposition order should reflect special education evaluations as well as goals and services under the IEP. Appropriate medication and mental health services may greatly change how a disability such as attention deficit hyperactivity disorder (ADHD) or bipolar disorder affects behavior.⁸³ An IEP may give the sentencing judge insight about the juvenile’s current level of intellectual functioning, as well as other concerns related to mental health and social issues.⁸⁴

“Research has shown that the programs most likely to rehabilitate youthful offenders address key risk factors that contribute to their antisocial behavior, including disabling conditions that affect behavior and learning.”⁸⁵ A large number of juveniles are incarcerated for non-violent offenses (estimates range around two-thirds to three-quarters) and so alternative dispositions may be appropriate.⁸⁶ These non-violent offenders are better served by a system of closely supervised community-based services, which may include elements of the following: “prevention, early identification and intervention, assessment, outpatient treatment, home-based services, wraparound services, family support groups, day treatment, residential treatment, crisis services and inpatient hospitalization.”⁸⁷ These programs are especially effective for crossover youth—youth involved in both the child welfare system and the delinquency system—because of their extremely high risk factors.⁸⁸

Although costly, evaluations of community-based services show they are highly effective and still less costly than alternative residential services.⁸⁹

Family and community based interventions have positive outcomes that:

• reduce long-term rates of re-arrest;
• improve family functioning and school performance;
• decrease substance use and psychiatric symptoms;
• reduce rates of out-of-home placements; and
• save significantly on financial costs to the state.⁹⁰

The court should consider whether a correctional setting being considered can accommodate and address the juvenile’s disability.For instance, the type of disability may affect a juvenile’s ability to cope in certain settings, such as a large dormitory in an institution.⁹¹ For some juveniles, rehabilitation will require a facility that can give medications where appropriate, and where the staff is trained to understand various diagnoses such as ADHD and emotional disorders.⁹² Juvenile justice professionals should follow up to ensure juveniles with disabilities receive services ordered at disposition, and that special education rights under IDEA are protected.

Depending on the nature of the disorder, when a juvenile must be institutionalized, hospitalization may be more appropriate than incarceration.⁹³ Also, if the juvenile could not be educated in the public school, a residential placement for educational purposes under IDEA may be more appropriate than incarceration. Therapeutic and educational services may be available there that would not be available in a detention facility.⁹⁴

8. Restorative Justice

Restorative justice focuses on repairing the harm that crime does to people, communities, and relationships.⁹⁵ The goal of restorative justice is repentance for the offender and healing for the victim and community. Approaches to restorative justice include: victim-offender mediation and dialogue, various community decision-making processes, restorative community service, restitution, victim and community impact statements, victim awareness panels, crime repair crews, victims intervention programs, family group conferencing, peacemaking circles, victim empathy classes for offenders, and victim-directed and citizen-involved community service by the offender.⁹⁶ Restorative justice policies “provide higher levels of victim and offender satisfaction and a greater likelihood of successful restitution completion by the offender than traditional justice programs,” as well as a reduction of fear for the victim, and greater rehabilitative effect for the offender.⁹⁷

Because juvenile offenders with disabilities may have difficulty understanding the connection between their actions and the consequences, requiring them to make direct restitution to the victims can help establish the link between actions and consequences and help build restorative relationships.⁹⁸ Because a juvenile with a disability may take much longer than average to understand the connections between choices and consequences, an ongoing rehabilitative program that focuses on restorative justice and allows the juvenile to confront the consequences of his choices and the impact on the victim may be very effective. An accommodation could be support in learning the cognitive skills necessary for this process.

C.R.S. section 19-1-103 defines restorative justice as follows:

“Restorative justice” means those practices that emphasize repairing the harm to the victim and the community caused by criminal acts. Restorative justice practices may include victim-offender conferences attended voluntarily by the victim, a victim advocate, the offender, community members, and supporters of the victim or the offender that provide an opportunity for the offender to accept responsibility for the harm caused to those affected by the crime and to participate in setting consequences to repair the harm. Consequences recommended by the participants may include, but need not be limited to, apologies, community service, restoration, and counseling. The selected consequences are incorporated into an agreement that sets time limits for completion of the consequences and is signed by all participants.

Restorative justice practices should also be integrated into diversion, advisement, entry of plea, sentencing, and probation.⁹⁹

9. Institutional Settings and Youth Corrections:

“Institutional education has a clear, positive effect in reducing recidivism and increasing post-release success in employment and other life endeavors.”¹⁰⁰ Juveniles with disabilities are the least likely to have skills needed to hold a job.Special education and related services provided through the institution are critically important.¹⁰¹ The provisions of IDEA cover both juvenile and adult criminal corrections facilities, with certain exceptions for juveniles incarcerated in an adult criminal corrections facility.¹⁰² (See 20 U.S.C. § 1414 (d)(7)(A) & (B); 34 C.F.R. § 300.324(d)(1) & (2); 34 C.F.R. § 300.102(a)(2); 34 C.F.R. § 300.114(a).) Thus, the state must provide a FAPE in the least restrictive environment to juveniles who are otherwise institutionalized in public or private institutions.¹⁰³

However, juvenile correctional institutions serve a number of perhaps competing purposes: rehabilitation, incapacitation, and punishment. Correctional education programs may also face difficulties beyond those of regular public schools with respect to adequate funding and trained personnel.They are working with a challenging population of students, usually in an overcrowded environment.Thus, it is not uncommon for the provision of special education services to be impeded.¹⁰⁴

Under IDEA, Child Find obligates institutions to identify all juveniles with disabilities. In the Colorado Division of Youth Corrections (DYC) (which falls under the Colorado Department of Human Services (DHS)), “[e]ach juvenile committed to the custody of the department of human services shall be examined and evaluated by the department prior to institutional placement or other disposition.”¹⁰⁵ Every student who enters the DYC is assessed by a multi-disciplinary team. This team includes education diagnosticians who research prior school placements, and obtain transcripts and/or IEPs (if appropriate). Within thirty days, a staffing is held (which includes the team, the guardians, and the student). At this point, a Personal Learning Plan or an IEP (transfer, annual, or triennial, depending on the timelines) is developed. If the student has not been identified as a special education student and there is reason to believe that he/she could possibly have a disability, a referral can be made.¹⁰⁶

A parent or advocate can request an evaluation from the correctional facility, can assist in the timely transfer of school records, and can be involved in developing the IEP plan, in person or by teleconference.¹⁰⁷ If a parent is not available, an educational surrogate parent (ESP) may be appointed.¹⁰⁸

When a juvenile comes to a facility with an IEP, the facility must implement the existing IEP or hold a new IEP meeting, just as a school district would.¹⁰⁹ The DYC is responsible for IEP meetings for incarcerated juveniles, but the DYC invites the administrative unit of residence to attend.¹¹⁰ Failure to request or transfer educational records, by either the facility or the school district, may be a procedural violation that results in a denial of a free appropriate public education (FAPE).¹¹¹ “Under the IDEA and FERPA, neither parental nor juvenile consent is required for the school districts to forward school records to a juvenile detention facility when a [j]uvenile is confined there.”¹¹² As in a regular school, special education students should be educated with non-disabled students where appropriate. Juveniles with disabilities should be informed of due process protections under IDEA, which are distinct from institutional grievance procedures.¹¹³

If a detention facility cannot provide the services needed by a juvenile under his or her IEP, the facility “can, and has a duty to, petition the Juvenile Court for educational release for the child as a means of complying with the Individuals with Disabilities Education Act.”¹¹⁴ The school district then has a duty to accept the juvenile unless it follows the proper due process procedures set out in IDEA for changing the educational placement of the juvenile.¹¹⁵

The use of a lockdown or restricted setting for a juvenile with disabilities depends on the facility and the situation. The Code of Federal Regulations provides for modifications of IEPs for a juvenile incarcerated in an adult criminal corrections facility when there is a “bona fide security or compelling penological interest.”¹¹⁶ This would probably permit lockdowns or restricted settings at times. No such modification is provided for juvenile corrections facilities. Therefore, if a lockdown or restricted setting is being considered, the normal rules for modifying IEPs would seem to apply, such as the procedural safeguards surrounding a change of placement. These procedural safeguards include review of behavioral intervention plans, functional behavioral assessments, manifestation determinations, and time limits on exclusions, along with the procedural rights to challenge changes in placement.¹¹⁷ Appropriate behavioral intervention strategies may also reduce the need for lockdown or restricted settings.¹¹⁸

Transition services may be the most neglected aspect of corrections special education.¹¹⁹ Transition services under the IEP (beginning at least by age fifteen in Colorado), should be closely coordinated with institutional planning for parole or release of juvenile offenders.¹²⁰ If the juvenile is transitioning back into the home school district, it may help to coordinate further services under IDEA with the local educational agency.¹²¹ For more detailed information, see the section on transition.

If a juvenile is not eligible for special education services under IDEA, but meets the guidelines under Section 504, a “504 plan” must be developed that specifies accommodations that will be provided to help the juvenile participate in the general curriculum.¹²²

10. Best Practices in a Prevention or Intervention Program¹²³

• Assess juvenile to determine skill needs in social, family communication, psychological, academic, and vocational areas;
• Plan goals in these areas and strategies to attain the goals;
• Plan how progress will be monitored regularly;
• Change goals with progress (or failure to progress); and
• Interventions that may be successful in teaching skills and dealing with underlying behavior;
  • counseling that teaches problem solving or social skills;
  • cognitive therapy or social cognitive training;
  • social skills training program, including interaction skills, cognitive social skills, and self-control skills;
  • academic intervention in a context suitable for juveniles with disabilities, including a highly structured routine with clear transitions and academic accommodations;
  • vocational training, especially coupled with other interventions;
  • medical intervention where legitimately needed and in combination with instruction on appropriate skills;
  • substance abuse programs where needed;
  • behavioral system with natural and logical consequences, a continuum of desired incentives, and direct application to the overall intervention plan (many facilities in Colorado use Dialectical Behavioral Therapy, an indepth cognitive behavioral approach); and
  • family involvement and family counseling.

11. Children and Youth Incarcerated as Adults Under IDEA

Either the state educational agency or another public agency has the responsibility to ensure that the requirements of IDEA are met “with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons.”¹²⁴ The Department of Corrections is responsible for all IEP meetings for juveniles incarcerated in adult facilities.¹²⁵

Certain requirements of IDEA do not apply to juveniles with disabilities incarcerated in adult prisons.¹²⁶ IDEA also limits the rights of juveniles with disabilities who are incarcerated in adult correctional facilities in the following ways:

• While a juvenile with a disability generally must be educated in the least restrictive environment, this does not apply to a juvenile with a disability in an adult prison.¹²⁷
• Special education services to juveniles with disabilities, age eighteen through twenty-one, need only be made for juveniles who previously had an IEP or at least were actually identified as being a juvenile with a disability under IDEA, prior to the incarceration in an adult correctional facility.(However, “states must make FAPE available to students with disabilities in adult prisons who do not fall into those exceptions.”)¹²⁸
• Juveniles with disabilities in adult correctional facilities need not participate in general testing programs.
• Transition services do not apply to individuals whose eligibility under IDEA will end because of their age before they will be released from prison.¹²⁹
• “[T]he educational program and placement of eligible youth with disabilities who are convicted as adults and in adult prisons can be modified if the State shows bona fide security or compelling penological interests that cannot otherwise be accommodated.”¹³⁰ This would include situations where the juvenile poses an immediate threat to self or others. “[T]his specific provision contemplates post-conviction incarcerations.”¹³¹

Despite these limitations, the U.S. Department of Education has stated that “providing special education to incarcerated youth with disabilities is good public policy.”¹³²

[E]ducation has a positive effect on reducing recidivism and a positive effect on post-release employment success. This is hardly surprising in light of the fact that nationwide, the literacy of prisoners is very low. . . Young prisoners with disabilities are among the least likely to have the skills they need to be able to hold a job. For them, education is probably the only opportunity they have to become productive, independent members of society.¹³³

Therefore, the best practice is for young prisoners to be provided general and special education where possible.

_________________________________________

1. Center for Effective Collaboration and Practice (CECP) & EDJJ, The National Center on Education, Disability, and Juvenile Justice, Addressing Invisible Barriers:Improving Outcomes for Youth with Disabilities in the Juvenile Justice System9 (June 2002) available at http://cecp.air.org/juvenilejustice/juvenile_justice.asp (viewed Oct. 15, 2010).

2. Id.

3. Sue Burrell and Loren Warboys, Special Education and the Juvenile Justice System, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Bulletin July 2000, at 1.

4. Center for Effective Collaboration and Practice (CECP) & EDJJ, The National Center on Education, Disability, and Juvenile Justice, Best Practices for Serving Court Involved Youth with Learning, Attention and Behavior Disabilities 3 (June 2002) available at http://cecp.air.org/juvenilejustice/juvenile_justice.asp (viewed Oct. 15, 2010).

5. National Center for Mental Health and Juvenile Justice, Models for Change:Key Issues 1 available at http://www.ncmhjj.com/faqs/default.asp (viewed Oct. 15, 2010).

6. Kristine Buffington, Carly Dierkhising, and Shawn Marsh, Ten Things Every Juvenile Court Judge Should Know about Trauma and Delinquency, National Council of Juvenile and Family Court Judges, 2010, p. 4.

7. Ann Schrader, Second Chance for Mentally Ill Teens, Denver Post, March 11, 2008.

8. The Special Needs of Youth in the Juvenile Justice System:Implications for Effective Practice, Children’s Law Center, Covington, Kentucky (2001).

9. Burrell and Warboys, supra note 3 at 2.

10. Id. at 1.

11. Id. at 2.

12. CECP and EDJJ, supra note 1 at 18.

13. Id.at 17-18.

14. Burrell and Warboys, supra note 3 at 1.

15. Unique Challenges, Hopeful Responses:A Handbook for Professionals Working With Youth With Disabilities in the Juvenile Justice System 47 (Pacer Center, Minneapolis, MN1997).

16. 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).

17. Id. at 1-8.

18. Id. at 1-9

19. Id. at 11-3.

20. Id. at 2-17.

21. Id. at 7-3.

22. Ralph C. Martin, II, Zero Tolerance Policy Report 1, American Bar Association, ABA Juvenile Justice Policies (February 2001) available at http://www.abanet.org/crimjust/juvjus/zerotolreport.html (viewed April 17, 2007).

23. Id. at 2.

24. Testimony of the National Council on Disability, Juvenile Detention Centers:Are They Warehousing Children with Mental Illness? 13 (July 7, 2004) available at http://www.ncd.gov/newsroom/testimony/2004/juvenile_07-07-04.htm (viewed Oct. 15, 2010).

25. Tulman and McGee, supra note 15 at 2-3

26. Burrell and Warboys, supra note 3 at 7.

27. CECP and EDJJ, supra note 1 at 3.

28. Id. at 4.

29. Testimony of the National Council on Disability,supra note 23 at 7.

30. Id.

31. Tulman and McGee, supra note 16 at 2-7

32. Id. at 2-9.

33. Burrell and Warboys, supra note 3 at 7.

34. Id. at 7-8.

35. Id.

36. CECP and EDJJ, supra note 1 at 20.

37. Burrell and Warboys, supra note 3 at 7.

38. 20 U.S.C. § 1415(k)(6)(B) (2005).

39. C.R.S. § 19-3-506(1).

40. C.R.S. § 19-2-710(1).

41. C.R.S. § 19-2-710(2).

42. C.R.S. § 16-11.9-102(1).

43. Buffington, supra note 6 at 8.

44. C.R.S. § 19-3-506(3)(c).

45. CECP and EDJJ, supra note 1 at 3.

46. Id. at 20.

47. Id.

48. Id.

49. Center for Effective Collaboration and Practice (CECP) and EDJJ, The National Center on Education, Disability, and Juvenile Justice, Youth with Disabilities in the Correctional System: Prevalence Rates and Identification Issues 17 (June 2002) available at http://cecp.air.org/juvenilejustice/juvenile_justice.asp (viewed Oct. 15, 2010).

50. Burrell and Warboys, supra note 3 at 8.

51. Id.

52. Tulman and McGee, supra note 16 at 1-5.

53. Burrell and Warboys, supra note 3 at 8.

54. Tulman and McGee, supra note 16 at 2-10.

55. The National Center on Education, Disability and Juvenile Justice, Special Education in Correctional Facilities, 6 available at http://www.edjj.org/Publications/list/osep_rehabsvrs-1999.html (viewed May 7, 2008).

56. Telephone interview with Barb Taylor, Special Education Director, Division of Youth Corrections, in Denver, Colorado (June 9, 2008).

57. Amended Rules for the Administration of the Public School Finance Act 2254-R-5.16, 1 Code Colo. Regs. 301-39.

58. Telephone interview with Barb Taylor, supra note 56.

59. Email from Maureen Wirth, Colorado Department of Education (May 19, 2008, 9:27 a.m.)(on file with author).

60. Burrell and Warboys,supra note 3 at 10.

61. 31 IDELR 250 (child who was sentenced to detention facility was denied free, appropriate public education because: 1) the child was in the detention facility off and on for a number of weeks, for different offenses, but he was not evaluated for special education eligibility, nor was his existing IEP followed at any time; 2) the facility offered no special education instruction, no instruction in daily living skills, and no self care or study skills instruction in clear violation of IDEA.The child was entitled to compensatory education.)(Note that this 1999 case interpreted IDEA 1997, but the relevant provisions of IDEA 2004 are quite similar.)

62. Alexander S. v. Boyd, 876 F.Supp. 773, 802, 22 IDELR 139 (D.S.C. 1995).

63. CECP and EDJJ, supra note 1 at 19.

64. Id. at 19-20.

65. Burrell and Warboys, supra note 3 at 8.

66. Tulman and McGee, supra note 16 at 5-13.

67. C.R.S. § 19-2-905(1)(a)(VI).

68. Burrell and Warboys, supra note 3 at 9.

69. Tulman and McGee, supra note 16 at 5-14.

70. C.R.S. § 19-2-925(2)(d).

71. State Bd. of Educ. Rule 9.03(2)(a)(ii), 1 Code Colo. Regs. 301-8 (2007).

72. Thomas Grisso, Juvenile Competency to Stand Trial:Questions in an Era of Punitive Reform 5 (American Bar Association) available at http://www.abanet.org/crimjust/juvjus/12-3gris.html (viewed Oct. 15, 2010).

73. C.R.S. §19-2-1301(2) through 1305.

74. C.R.S. § 19-2-1301(3).

75. Burrell and Warboys, supra note 3 at 8-9.

76. Tulman and McGee, supra note 16 at 2-13.

77 Thomas Grisso, Juvenile Competency to Stand Trial:Questions in an Era of Punitive Reform 10 (American Bar Association) available at http://www.abanet.org/crimjust/juvjus/12-3gris.html (viewed Oct. 15, 2010).

78. Lynda E. Frost and Robert E. Shepherd, Jr., Mental Health Issues in Juvenile Delinquency Proceedings 3 (American Bar Association 1996) available at http://www.abanet.org/crimjust/juvjus/cjmental.html (viewed Oct. 15, 2010).

79. Tulman and McGee, supra note 16 at 3-8

80. CECP and EDJJ, supra note 1 at 3.

81. C.R.S. § 19-2-710(2).

82. Brad Bittan, The Mandate to Use Special Education at Juvenile Delinquency Sentencing, 32 Colo. Law. 99, 101 (2003).

83. Burrell and Warboys, supra note 3 at 9.

84. Brad Bittan, supra note 80 at 100.

85. Center for Effective Collaboration and Practice & EDJJ, The National Center on Education, Disability, and Juvenile Justice, Advocating for Children with Disabilities in the Juvenile Justice System8 (June 2002) available at http://cecp.air.org/juvenilejustice/juvenile_justice.asp (viewed Oct. 15, 2010).

86. National Center for Mental Health and Juvenile Justice, Models for Change:Key Issues 2 available at http://www.ncmhjj.com/faqs/default.asp (viewed May 2, 2008).

87. Testimony of the National Council on Disability, supra note 23 at 8.

88. Peter Leone and Lois Weinberg, Addressing the Unmet Educational needs of Children and Youth in the Juvenile Justice and Child Welfare Systems, Center for Juvenile Justice Reform, May 2010, p. 41.

89. Id. at 10.

90. National Center for Mental Health and Juvenile Justice, Models for Change:Key Issues 3 available at http://www.ncmhjj.com/faqs/default.asp (viewed May 2, 2008).

91. Burrell and Warboys, supra note 3 at 9.

92. CECP and EDJJ, supra note 1 at 22.

93. CECP and EDJJ,supra note 85 at 9.

94. Tulman and McGee, supra note 16 at 10-5.

95. Pam Stenhjem, Youth with Disabilities in the Juvenile Justice System:Prevention and Intervention Strategies National Center on Secondary Education and Transition February 2005, Vol. 4, Issue 1 available at www.ncset.org (viewed Oct. 15, 2010).

96. Id.

97. Id.

98. CECP and EDJJ, supra note 85 at 8.

99. C.R.S. § 19-2-303; C.R.S. § 19-2-706; C.R.S. § 19-2-708; C.R.S. § 19-2-907; C.R.S. §19-2-925.

100. Burrell and Warboys, supra note 3 at 10.

101. Id.

102. Id.; Alexander v. Boyd, 876 F.Supp. 773, 800-04 (S.D. S.C. 1995)(State correctional facilities also responsible to meet requirements under Section 504 and ADA).

103. 34 C.F.R. § 300.118.

104. Sheri Meisel, et al., Collaborate to Educate:Special Education in Juvenile Correctional Facilities (The National Center on Education, Disability and Juvenile Justice 1998) available at http://www.edjj.org/Publications/list/meisel_henderson_cohen_leone-1998.html (viewed Oct. 15, 2010).

105. C.R.S. § 19-2-922(1)(a).

106. E-mail from Barb Taylor, Division of Youth Corrections (June 11, 2008)(on file with author).

107. National Children’s Law Network, In School, the Right School, Finish School 30 (Holland & Hart and Rocky Mountain Children’s Law Center 2007).

108. Id.

109. Burrell and Warboys, supra note 3 at 10.

110. Rule 8.06(1)(a).

111. 31 IDELR 250.

112. 31 IDELR 250 (however, the school district should provide reasonable notice to the parents that the records have been transferred); Alexander S. v. Boyd, 876 F.Supp. 773, 802, 22 IDELR 139 (D.S.C. 1995).

113. Burrell and Warboys, supra note 3 at 11.

114. 31 IDELR 250.

115. 31 IDELR 250.

116. 20 U.S.C. § 1414(d)(7)(B) (2005); 34 C.F.R. § 300.324 (d)(2).

117. Burrell and Warboys, supra note 3 at 11.

118. Id.

119. The National Center on Education, Disability and Juvenile Justice, Special Education in Correctional Facilities, 8 available at http://www.edjj.org/Publications/list/osep_rehabsvrs-1999.html (viewed Oct. 15, 2010).

120. 20 U.S.C. § 1414(d)(1)(A)(i)(VIII).This is an example of a state making a more stringent administrative rule.In lieu of 34 C.F.R. § 300.320(b), Rule 4.03(6)(d)(i) requires the transition plan begin no later than the age of 15, rather than 16.

121. Burrell and Warboys, supra note 3 at 11.

122. Sheri Meisel, et al., supra note 104 at 3.

123. CECP and EDJJ,supra note 4 at 5-21.

124. 20 U.S.C. § 1412(a)(11)(C) (2005).

125. Rule 8.06(1)(b).

126. 20 U.S.C. § 1414(d)(7)(B); 34 C.F.R. 300.324(d)(2).

127. 34 C.F.R. § 300.114(a).

128. 34 C.F.R. § 300.102(a)(2); 39 IDELR 270 (but see 33 IDELR 6, holding that the Washington Department of Corrections had no obligation to provide public or special education to any individuals between 18 and 22 years of age.)

129. 20 U.S.C. § 1414 (d)(7)(A) & (B); 34 C.F.R. 300.324(d)(1); 30 IDELR 607 (Note that this 1998 letter from the Federal Office of Special Education Program interprets IDEA 1997, but because the prison provisions are quite similar, the post-2004 IDEA may be read as retaining those concepts.).

130. 30 IDELR 607; 20 U.S.C. § 1414(d)(7)(B).

131. 39 IDELR 270.

132. 30 IDELR 607.

133. 30 IDELR 607.