using special education law in family court cases criminal defense institute june 2011 joe tulman...
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Using Special Education Using Special Education Law In Family Court Law In Family Court
CasesCases
Criminal Defense InstituteCriminal Defense Institute
June 2011June 2011Joe TulmanJoe Tulman
Professor of LawProfessor of [email protected]@udc.edu
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Delinquency – Reversing theDelinquency – Reversing theSchool-to-Prison PipelineSchool-to-Prison Pipeline
Special Education Advocacy to Special Education Advocacy to Defeat Delinquency Jurisdiction or Defeat Delinquency Jurisdiction or Enhance DefenseEnhance Defense
Keep a Child Out of, or Get a Child Out Keep a Child Out of, or Get a Child Out of, the Delinquency Systemof, the Delinquency System
If Not, Improve the Defense and the If Not, Improve the Defense and the OutcomeOutcome
33
Child Welfare – Stabilizing or Child Welfare – Stabilizing or Reunifying FamiliesReunifying Families
Special Education Advocacy to De-Special Education Advocacy to De-Rail Child Welfare Intervention or Rail Child Welfare Intervention or Improve OutcomesImprove Outcomes
Identifying and Obtaining ServicesIdentifying and Obtaining Services Help a Parent Gain Control of the Help a Parent Gain Control of the
SituationSituation Consider Innovative DefensesConsider Innovative Defenses
44
Case Aggregation and Attorney Case Aggregation and Attorney Mobilization for Systemic ChangeMobilization for Systemic Change
Defining “Case Aggregation”Defining “Case Aggregation” Advantages of Using Special Advantages of Using Special
Education as an Organizing StrategyEducation as an Organizing Strategy– Caseloads and Attorneys’ FeesCaseloads and Attorneys’ Fees– Conflict and Cost Conflict and Cost Pushing for Reliance Pushing for Reliance
on Prevention and Integrated System of on Prevention and Integrated System of CareCare
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Special Education AdvocacySpecial Education AdvocacyTo Defeat Delinquency Jurisdiction or To Defeat Delinquency Jurisdiction or
Enhance DefenseEnhance Defense
Disability DisparityDisability Disparity Advantage of Using Disability RightsAdvantage of Using Disability Rights Special Education Law and Practice Special Education Law and Practice
(Quick Overview)(Quick Overview) Strategies for Delinquency DefenseStrategies for Delinquency Defense
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The Current SituationThe Current Situation
From School System to Delinquency From School System to Delinquency (Rise of Zero Tolerance Policies)(Rise of Zero Tolerance Policies)
Neglect (Child Welfare) to DelinquencyNeglect (Child Welfare) to Delinquency
Delinquency to CriminalDelinquency to Criminal
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Other Child-Caring Systems…Other Child-Caring Systems…
Ineffective in…Ineffective in…
Stabilizing or Reunifying Families or Stabilizing or Reunifying Families or Stabilizing Children in PlacementsStabilizing Children in Placements
Addressing Deviant Conduct by Addressing Deviant Conduct by ChildrenChildren
Reducing Drugs, Violence, Illiteracy, Reducing Drugs, Violence, Illiteracy, Poverty, Recidivism, etc.Poverty, Recidivism, etc.
Making Children ProductiveMaking Children Productive
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Other Child-Caring Systems…Other Child-Caring Systems…
Mental Health, Recreation, Mental Health, Recreation, Drug Treatment, Drug Treatment, Vocational Rehab., Vocational Rehab., Probation, and School Probation, and School Systems = Ineffective or Systems = Ineffective or Subordinated Because of Subordinated Because of Cynicism or “Efficiency”Cynicism or “Efficiency”
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Effectiveness of Providing an Effectiveness of Providing an Appropriate Education Appropriate Education
Developmental Imperatives for Developmental Imperatives for Adolescents… Adolescents… – Competency, Success, and Independence: Competency, Success, and Independence:
In School or On the Street?In School or On the Street?- Job Mentoring: Legitimate or Illegal - Job Mentoring: Legitimate or Illegal
Economic ActivityEconomic Activity– We Know What Makes Children SuccessfulWe Know What Makes Children Successful– Importance of MainstreamingImportance of Mainstreaming– Brain Science and Outgrowing DelinquencyBrain Science and Outgrowing Delinquency
1010
Providing Appropriate EducationProviding Appropriate Education
Evidence-Based PracticesEvidence-Based Practices– For Teaching IndividualsFor Teaching Individuals– PBISPBIS– For Diminishing Youth Violence For Diminishing Youth Violence
(e.g., Surgeon General’s Report on (e.g., Surgeon General’s Report on Youth Violence; Blueprints; Etc.)Youth Violence; Blueprints; Etc.)
CDC Findings on Kids in Criminal CDC Findings on Kids in Criminal System & Adult PrisonsSystem & Adult Prisons
Our Clients Have Unmet Needs and Our Clients Have Unmet Needs and Unrecognized RightsUnrecognized Rights
1111
Disparities, Discrimination, and Disparities, Discrimination, and Efficacy of Legal ChallengesEfficacy of Legal Challenges
Disparity Based on Disparity Based on RaceRace– E.gE.g., McCleskey v. Kemp; ., McCleskey v. Kemp; but cfbut cf., Deliberate ., Deliberate
Indifference Rather than Just Disparate ImpactIndifference Rather than Just Disparate Impact
Disparity Based on Disparity Based on ClassClass– Not RecognizedNot Recognized
Disparity Based on Disparity Based on DisabilityDisability– More Effective Legally, Politically, Rhetorically, More Effective Legally, Politically, Rhetorically,
Psychologically, and Practically (For Solving Psychologically, and Practically (For Solving Problems)Problems)
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Children with Disabilities Children with Disabilities Disproportionately…Disproportionately…
Not successfully integrated in the Not successfully integrated in the mainstream at schoolmainstream at school
Excluded from school due to disciplineExcluded from school due to discipline
Subjects of child welfare petitionsSubjects of child welfare petitions
Facing delinquency chargesFacing delinquency charges
Detained and incarceratedDetained and incarcerated
Not successfully reintegrated following Not successfully reintegrated following incarcerationincarceration
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Substantive and Procedural Rights Substantive and Procedural Rights Under the IDEAUnder the IDEA
HANDOUTHANDOUT
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Individuals with Disabilities Individuals with Disabilities Education Act (I.D.E.A.)Education Act (I.D.E.A.)
20 U.S.C. §§ 1400 et seq.20 U.S.C. §§ 1400 et seq. 34 C.F.R. Part 300.34 C.F.R. Part 300. State and Local Statutes and State and Local Statutes and
RegulationsRegulations
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IDEA EligibilityIDEA Eligibility Disability CategoriesDisability Categories Substantial Impact on EducationSubstantial Impact on Education
From 0 to 3 and from 3 through 21From 0 to 3 and from 3 through 21 Twenty-Second Birthday (Plus)Twenty-Second Birthday (Plus)
– Effects of Diploma or G.E.D.Effects of Diploma or G.E.D.
““Compensatory Education”Compensatory Education”– Expanding Services Expanding Services – or Extending Eligibilityor Extending Eligibility
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Substantive and Procedural Rights Substantive and Procedural Rights Under the IDEAUnder the IDEA
FAPE (Free Appropriate Public Education)FAPE (Free Appropriate Public Education) LRE (Least Restrictive Environment)LRE (Least Restrictive Environment)
– Mainstreaming & InclusionMainstreaming & Inclusion– Continuum of Services, Including 24-Hour Continuum of Services, Including 24-Hour
IEP (Individualized Education Program)IEP (Individualized Education Program) Related ServicesRelated Services Transition ServicesTransition Services Assistive TechnologyAssistive Technology FBAs/BIPs (Functional Behavioral Assessments FBAs/BIPs (Functional Behavioral Assessments
and Behavioral Intervention Plans)and Behavioral Intervention Plans) PBISPBIS
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Substantive and Procedural Rights, Substantive and Procedural Rights, ContinuedContinued
Evaluation “in any area of suspected disability”Evaluation “in any area of suspected disability”– Psycho-educationalPsycho-educational– Clinical psychologicalClinical psychological– Speech/LanguageSpeech/Language– VocationalVocational– NeurologicalNeurological– Etc.Etc.
Independent Educational EvaluationsIndependent Educational Evaluations Initial, Triennial -- and More OftenInitial, Triennial -- and More Often
– Control by Defense AttorneyControl by Defense Attorney– Contrast with Criminal or Delinquency EvaluationsContrast with Criminal or Delinquency Evaluations
Response to InterventionResponse to Intervention
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Substantive and Procedural Rights, Substantive and Procedural Rights, ContinuedContinued
Child FindChild Find Right to a Due Process, Right to a Due Process,
Administrative HearingAdministrative Hearing
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Rights Under the IDEARights Under the IDEA School System – School System – Block Disciplinary Exclusion and Zero Tolerance Block Disciplinary Exclusion and Zero Tolerance Neglect System – Neglect System – Must EducateMust Educate Delinquency System – Delinquency System – Must EducateMust Educate Adult Criminal System – Adult Criminal System – Must EducateMust Educate
– Exception: Over 18; Not ID’d; SentencedException: Over 18; Not ID’d; Sentenced
IncarcerationIncarceration
– Before, During, and After... Before, During, and After... Must EducateMust Educate
– Substitute Special Education for InstitutionalizationSubstitute Special Education for Institutionalization
2020
Remedies Under the IDEARemedies Under the IDEA Burlington Burlington and and Carter & Carter & 34 C.F.R. § 300.148(c)34 C.F.R. § 300.148(c)
Compensatory Education Compensatory Education – Educational EnhancementEducational Enhancement– Extended EligibilityExtended Eligibility
Attorneys’ Fees at Market Rate for Prevailing ParentsAttorneys’ Fees at Market Rate for Prevailing Parents– Defining “Prevailing” Post Defining “Prevailing” Post BuckhannonBuckhannon– Settlement vs. Consent OrderSettlement vs. Consent Order– Expert Costs (Expert Costs (MurphyMurphy))
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Special Education Advocacy: Special Education Advocacy: Stages of the ProcessStages of the Process
Identification & Identification & EvaluationEvaluation
EligibilityEligibility IEPIEP PlacementPlacement Providing ServicesProviding Services Annual Assessment & Annual Assessment &
IEPIEP Triennial EvaluationTriennial Evaluation
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DISABILITYDISABILITYANDAND
DELINQUENCY DEFENSE:DELINQUENCY DEFENSE:
Basic Strategies Basic Strategies
REVERSING THE REVERSING THE SCHOOL-TO-PRISONSCHOOL-TO-PRISON
PIPELINEPIPELINE(Individual Case Advocacy)(Individual Case Advocacy)
-or--or-How to Put aHow to Put a
Monkey Wrench into theMonkey Wrench into theConveyor Belt of InjusticeConveyor Belt of Injustice
In Order to Take a Child OffIn Order to Take a Child Off
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Transforming Defendants Transforming Defendants into Plaintiffsinto Plaintiffs
Turning Cases into Kids –Turning Cases into Kids –Continue the RepresentationContinue the Representation
2525
Basic Spec Ed ApplicationBasic Spec Ed Applicationto Delinquency Caseto Delinquency Case
1.1. List All the Services (Etc.) That a Child NeedsList All the Services (Etc.) That a Child Needs2.2. Categorize Under Evaluations, Specialized Instruction, Categorize Under Evaluations, Specialized Instruction,
“Related Services”, “Transition Services”, A.T., and “FBA-BIP”“Related Services”, “Transition Services”, A.T., and “FBA-BIP”3.3. Justify as “Appropriate” Under the Justify as “Appropriate” Under the Rowley Rowley StandardStandard4.4. Compare with What is Available Within the Delinquency, Compare with What is Available Within the Delinquency,
Criminal, or Neglect SystemCriminal, or Neglect System5.5. Consider Advantages of Each SystemConsider Advantages of Each System6.6. Devise Negotiation/Litigation Strategy (with Focus on Comp. Devise Negotiation/Litigation Strategy (with Focus on Comp.
Ed.)Ed.)
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Services AvailableServices Available Delinquency and status offense system(s)Delinquency and status offense system(s) Special education system (related services Special education system (related services
& transition services)& transition services)– Parent trainingParent training– FBA/BIPFBA/BIP– Social work servicesSocial work services– CounselingCounseling– Therapeutic recreationTherapeutic recreation– Continuum of placementsContinuum of placements– Private services (Private services (BurlingtonBurlington))– Vocational trainingVocational training– Compensatory EducationCompensatory Education
2727
ChartingCharting
Excavating and Charting School Excavating and Charting School RecordsRecords– Child Find ViolationsChild Find Violations– Denials of FAPE (including failure to do Denials of FAPE (including failure to do
triennials, illegal exclusions)triennials, illegal exclusions)– School Failures; TruancySchool Failures; Truancy
Charting (Lack of) Academic ProgressCharting (Lack of) Academic Progress
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Strategic Timing & Strategic Timing & Juxtaposing SystemsJuxtaposing Systems
The importance of winning special The importance of winning special education hearingseducation hearings– Discretion of the court vs. impact of a Discretion of the court vs. impact of a
hearing officer’s determinationhearing officer’s determination Timing of the delinquency and Timing of the delinquency and
special education matters special education matters – Negotiating a continuanceNegotiating a continuance– Spec ed advocacy for the long haulSpec ed advocacy for the long haul
2929
Representation IssuesRepresentation Issues
Delinquency: Child = ClientDelinquency: Child = Client– Strategy DiscussionStrategy Discussion– Add Parent as Client, tooAdd Parent as Client, too
Retainer AgreementRetainer Agreement– Conflict PotentialConflict Potential– Transfer of Rights to the ChildTransfer of Rights to the Child
3030
Fairness of the ProcessFairness of the Process
Compare Families Compare Families with Resources and with Resources and Those WithoutThose Without– What Happens to What Happens to
Non-Minority, Non-Non-Minority, Non-Poor Kids? Poor Kids?
– Special Education Special Education Services as Services as Equivalent of Equivalent of Private ServicesPrivate Services
– Accommodations Accommodations During Intake?During Intake?
Using Special Education Using Special Education Advocacy to Enhance Advocacy to Enhance Delinquency DefenseDelinquency Defense
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Incidents at SchoolIncidents at School
Disciplinary HearingsDisciplinary HearingsGoss v. Lopez Goss v. Lopez Discovery Opportunity (e.g., School Fight Discovery Opportunity (e.g., School Fight
Case)Case) IDEA Disciplinary ProtectionsIDEA Disciplinary Protections IEP & BIP Agreement Not to Go to IEP & BIP Agreement Not to Go to
Delinquency CourtDelinquency CourtT.L.O. + T.L.O. + Exclusionary Rule at SchoolExclusionary Rule at School Individualized Decision-Making (Not Zero Individualized Decision-Making (Not Zero
Tolerance)Tolerance)
3333
Incidents at SchoolIncidents at School
Mediation – Who is the AggressorMediation – Who is the Aggressor
Manifestation Determination + Mens Manifestation Determination + Mens Rea; Culpability Rea; Culpability
Discriminatory Decision-Making Discriminatory Decision-Making Regarding Whom to Refer to CourtRegarding Whom to Refer to Court
The Win-Win of PBIS + BIPs & FBAsThe Win-Win of PBIS + BIPs & FBAs
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Incidents at SchoolIncidents at School
Derrick and Todd’s CasesDerrick and Todd’s Cases
Steven’s CaseSteven’s Case
3535
Challenging the Intake ProcessChallenging the Intake Process Decisions not to prosecute “deserving” Decisions not to prosecute “deserving”
childrenchildren– How? Why? By whom?How? Why? By whom?– Investigation requirementInvestigation requirement– Diversion or no case?Diversion or no case?
Statutory basisStatutory basis– Interest of justiceInterest of justice– Social reasonsSocial reasons– Purposes provisionPurposes provision– Definition of “delinquent child”Definition of “delinquent child”– School service requirements (e.g., prior to School service requirements (e.g., prior to
truancy case)truancy case)
3636
Falling Between the CracksFalling Between the Cracks Delinquency judges generally do not have Delinquency judges generally do not have
jurisdiction over special education issuesjurisdiction over special education issues– Challenges to denial of special education rights Challenges to denial of special education rights
in administrative due process hearingin administrative due process hearing– Administrative exhaustion requirementAdministrative exhaustion requirement
Special education hearing officers Special education hearing officers generally do not have jurisdiction over generally do not have jurisdiction over delinquency issuesdelinquency issues– Exception (change of placement):Exception (change of placement): Morgan v. Morgan v.
Chris L.,Chris L., 927 F. Supp. 267 (E.D. Tenn. 1994), 927 F. Supp. 267 (E.D. Tenn. 1994), aff'daff'd, 106 F.3d 401 (6th Cir. 1997), 106 F.3d 401 (6th Cir. 1997)
3737
Congressional Purpose in theCongressional Purpose in theI.D.E.A.I.D.E.A.
“ “Congress very much meant to strip Congress very much meant to strip schools of the unilateral authority schools of the unilateral authority they had traditionally employed to they had traditionally employed to exclude disabled students, exclude disabled students, particularly emotionally disturbed particularly emotionally disturbed students, from school.” students, from school.”
-- -- Honig v. Doe, 484 U.S. 305, 323 (1988).Honig v. Doe, 484 U.S. 305, 323 (1988).
3838
The Worst of Both WorldsThe Worst of Both Worlds
Minority youth (particularly boys) with Minority youth (particularly boys) with education-related disabilities most likely to education-related disabilities most likely to be kicked out and pushed out…be kicked out and pushed out…
No representation in discipline; no No representation in discipline; no representation in special educationrepresentation in special education
No one in delinquency raises illegality No one in delinquency raises illegality – Failing to identifyFailing to identify– Failing to provide spec ed and related servicesFailing to provide spec ed and related services– DUMPING & CRIMINALIZING THE KIDDUMPING & CRIMINALIZING THE KID
Exhaustion barrierExhaustion barrier
3939
Compelling Equities &Compelling Equities &Formulating Legal TheoriesFormulating Legal Theories
Analogy to Analogy to Kent v. United States, Kent v. United States, 383 383 U.S. 541 (1966)U.S. 541 (1966)
Flooding the school-to-prison Flooding the school-to-prison pipeline; no shut-off valvepipeline; no shut-off valve
Arguing school administrators did an Arguing school administrators did an “end run” – circumventing spec ed “end run” – circumventing spec ed obligationsobligations
Arguing dismissal in the interest of Arguing dismissal in the interest of justicejustice
4040
Best Kind of CaseBest Kind of Case
Minor delinquencyMinor delinquency Truancy or other status offenseTruancy or other status offense School personnel ignoring legal School personnel ignoring legal
obligationsobligations Zero tolerance run amuckZero tolerance run amuck Diversion kids facing new school Diversion kids facing new school
discipline chargesdiscipline charges
4141
The Best Argument:The Best Argument:Violation of Intake ProcessViolation of Intake Process
““Powers of the probation officer” include Powers of the probation officer” include “mak[ing] investigations, reports, and “mak[ing] investigations, reports, and recommendations to the juvenile court; recommendations to the juvenile court; receiv[ing] and examin[ing] complaints and receiv[ing] and examin[ing] complaints and charges of delinquency, unruly conduct or charges of delinquency, unruly conduct or deprivation of a child for the purpose of deprivation of a child for the purpose of considering the commencement of considering the commencement of proceedings. . . . [and] mak[ing] appropriate proceedings. . . . [and] mak[ing] appropriate referrals to other private or public agencies of the referrals to other private or public agencies of the community if their assistance appears to be community if their assistance appears to be needed or desirable…” needed or desirable…”
– Model Juv. Ct. Act § 6 (1968) Model Juv. Ct. Act § 6 (1968)
4242
20 U.S.C. § 1415(k)(6) 20 U.S.C. § 1415(k)(6)
Rule of construction: IDEA doesn’t Rule of construction: IDEA doesn’t constrain school officials from constrain school officials from reporting alleged criminal behaviorreporting alleged criminal behavior
Requirement to provide school Requirement to provide school records to the court (intake) records to the court (intake) assuming FERPA permissionassuming FERPA permission
4343
Case SupportCase Support
Whether school administrators are Whether school administrators are attempting an end run of special education attempting an end run of special education responsibilities should be considered at responsibilities should be considered at the “investigative and referral levels” of the “investigative and referral levels” of the juvenile court process at which the juvenile court process at which decisions are made regarding “whether decisions are made regarding “whether the case belongs in the juvenile system in the case belongs in the juvenile system in the first instance...”the first instance...”
In reIn re Trent M., 569 N.W.2d 719, 724 (Wis. Ct. App. 1997). Trent M., 569 N.W.2d 719, 724 (Wis. Ct. App. 1997).
4444
Motion to Dismiss Based Upon Motion to Dismiss Based Upon Violation of Intake ProcessViolation of Intake Process
Experiences with these motionsExperiences with these motions
The Role of the Probation Officer in The Role of the Probation Officer in Intake: Stories from Before During Intake: Stories from Before During and After the Delinquency Initial and After the Delinquency Initial HearingHearing
3 D.C. L. Rev. 235, 235-50 (1995)3 D.C. L. Rev. 235, 235-50 (1995)
4545
Selective Prosecution (and “End Selective Prosecution (and “End Running”) = Discrimination Running”) = Discrimination
““Of course, it would be a violation of Of course, it would be a violation of Section 504 of the Rehabilitation Act of Section 504 of the Rehabilitation Act of 1973 if a school were discriminating 1973 if a school were discriminating against children with disabilities in how against children with disabilities in how they were acting under this authority (e.g., they were acting under this authority (e.g., if they were only reporting crimes if they were only reporting crimes committed by children with disabilities and committed by children with disabilities and not [those] committed by nondisabled not [those] committed by nondisabled students).” students).” – 64 Fed. Reg. 12631 (March 12, 1999). 64 Fed. Reg. 12631 (March 12, 1999).
4646
De-Contaminating DetentionDe-Contaminating Detention
One-Way ValveOne-Way Valve– Use RAI & Limit RAI OverridesUse RAI & Limit RAI Overrides– Use Continuum of Placements as Alternative to Use Continuum of Placements as Alternative to
Secure DetentionSecure Detention– Use Interlocutory AppealUse Interlocutory Appeal– End Detention for Social Reasons (incl. “danger End Detention for Social Reasons (incl. “danger
to self”)to self”)– End Reconsideration of Release and Contempt End Reconsideration of Release and Contempt
of Court of Court
The Timing: Having IDEA Services Ready The Timing: Having IDEA Services Ready for Possibility of Re-Arrest for Possibility of Re-Arrest
4747
De-Contaminating DetentionDe-Contaminating Detention
Releasing the DetainableReleasing the Detainable– School (IDEA) Services as Alternative to School (IDEA) Services as Alternative to
DetentionDetention– Inappropriateness of Proposed Detention Site Inappropriateness of Proposed Detention Site
(Can’t Implement IEP; No Spec Ed Services)(Can’t Implement IEP; No Spec Ed Services)
School Attendance as a Condition of School Attendance as a Condition of ReleaseRelease– ExhaustionExhaustion– AccommodationsAccommodations– Third-Party ContemptThird-Party Contempt
4848
Evaluation StrategiesEvaluation Strategies
Evaluations Evaluations – by courtby court– ex parte (ex parte (Ake v. OklahomaAke v. Oklahoma))– by school systemby school system– independent ed eval independent ed eval – through medical insurancethrough medical insurance– through Medicaidthrough Medicaid
4949
Evaluation StrategiesEvaluation Strategies Use evaluations and evaluators to supportUse evaluations and evaluators to support
– MirandaMiranda challenge challenge– competencycompetency– mens reamens rea– lack of understanding of circumstances of lack of understanding of circumstances of
alleged events (e.g., import of what named co-alleged events (e.g., import of what named co-respondent said)respondent said)
– limitations as a witness; need for limitations as a witness; need for accommodations during trial, on probation, etc.accommodations during trial, on probation, etc.
– need for services (e.g., family counseling; need for services (e.g., family counseling; parent training; FBA-BIP) that are not available parent training; FBA-BIP) that are not available in juvenile jail or prison settingin juvenile jail or prison setting
5050
Fact Investigation & Trial PrepFact Investigation & Trial Prep
Example: Child with Receptive/Expressive Example: Child with Receptive/Expressive Language DisorderLanguage Disorder
Challenging InferencesChallenging Inferences– What Child Purportedly Says to Alleged Victim What Child Purportedly Says to Alleged Victim – What Child Allegedly Hears and Presumably What Child Allegedly Hears and Presumably
ComprehendsComprehends Demonstrate that changed statement Demonstrate that changed statement
during interrogation not significant (e.g., during interrogation not significant (e.g., cop getting child to drop claim of cop getting child to drop claim of innocence)innocence)
5151
Fact Investigation & Trial PrepFact Investigation & Trial Prep
Child’s (and Other Witnesses’) Ability Child’s (and Other Witnesses’) Ability to Remember Facts and Statements to Remember Facts and Statements Relevant to Suppression and DefenseRelevant to Suppression and Defense
– counter to cross attacking credibility counter to cross attacking credibility based on inconsistencybased on inconsistency
5252
DiscoveryDiscovery
Brady v. Maryland Brady v. Maryland Exculpatory or Mitigating Exculpatory or Mitigating
Information (e.g., Information (e.g., Amenability to Treatment)Amenability to Treatment)
* * ** * *
Prosecutor Responsible for Prosecutor Responsible for Providing Information from Providing Information from
Other Public Agencies?Other Public Agencies?
5353
Pre-Trial (Status Hearings)Pre-Trial (Status Hearings)
Agreement Agreement Between Defense Between Defense and Prosecution and Prosecution to Continue Trial to Continue Trial
or Order or Order Probation Before Probation Before
Judgment to Judgment to Allow Special Allow Special
Education Education Services to Take Services to Take
EffectEffect
5454
Transfer MotionTransfer Motion
StandardStandard– Amenability to TreatmentAmenability to Treatment– Different Standard?Different Standard?
Unclean Hands (child had a right to Unclean Hands (child had a right to services that government failed to services that government failed to provide)provide)
Availability of Services in Juvenile Availability of Services in Juvenile System/Placement but Not in CriminalSystem/Placement but Not in Criminal
5555
Suppressing StatementsSuppressing Statements Miranda Miranda and Other Waiversand Other Waivers
– Expert witnesses on Reading and Auditory ComprehensionExpert witnesses on Reading and Auditory Comprehension– Colorado v. Connelly Colorado v. Connelly andand Moran v. Burbine Moran v. Burbine
Unreliability of Admission/Confession (Rules of Evidence Unreliability of Admission/Confession (Rules of Evidence and Due Process)and Due Process)– Child with MR or expressive/receptive language disorderChild with MR or expressive/receptive language disorder– Other disabilities (e.g., depression/SED, PTSD)?Other disabilities (e.g., depression/SED, PTSD)?
Privilege Against Self-IncriminationPrivilege Against Self-Incrimination– Coercion and Totality of CircumstancesCoercion and Totality of Circumstances– ADA and Ethics: Affirmative Duty by Police and Prosecutors and ADA and Ethics: Affirmative Duty by Police and Prosecutors and
Judges?Judges?
5656
Excluding StatementsExcluding Statements
Motions Based on Due Process or Rules of Motions Based on Due Process or Rules of Evidence Evidence – ReliabilityReliability– Probativity vs. Prejudicial ImpactProbativity vs. Prejudicial Impact– Expert Testimony Regarding Significance of Expert Testimony Regarding Significance of
Accused’s Words or UnderstandingsAccused’s Words or Understandings
Statements Made During Interrogation Statements Made During Interrogation – Impeachment ValueImpeachment Value– Substantive Value (as to Guilt or Innocence)Substantive Value (as to Guilt or Innocence)
5757
Taking a Plea BargainTaking a Plea Bargain
Oh, Pleas!Oh, Pleas!
The Child’s The Child’s Understanding of Understanding of
the Plea Bargain and the Plea Bargain and the Need to the Need to
Accommodate in the Accommodate in the Rule 11 ColloquyRule 11 Colloquy
&&
Challenges to PleasChallenges to Pleas
5858
DefensesDefenses ““No Show” Violation (Bail No Show” Violation (Bail
Reform Act) or Failure to Reform Act) or Failure to Inform (Accommodate)?Inform (Accommodate)?
Truancy or “Constructive Truancy or “Constructive Eviction” (Failure to Provide Eviction” (Failure to Provide Spec Ed)?Spec Ed)?
Behavior = Manifestation of Behavior = Manifestation of Disability: Not Culpable or Disability: Not Culpable or Mitigation?Mitigation?
Aider & Abettor or Aider & Abettor or Bystander/Witness?Bystander/Witness?
Drug Use (Possession) as Drug Use (Possession) as Manifestation of DisabilityManifestation of Disability
ProvocationProvocation
5959
Disposition:Disposition:Special Education ServicesSpecial Education Services
As Alternative to IncarcerationAs Alternative to Incarceration
– Use the Continuum of Care in Special EducationUse the Continuum of Care in Special Education– Creative Use of Related Services, Transition Services, and Creative Use of Related Services, Transition Services, and
““BurlingtonBurlington” Remedy” Remedy– LRE and Treatment as Precepts in Delinquency and Disability LawLRE and Treatment as Precepts in Delinquency and Disability Law– Best Interest of Child as Precept in Delinquency LawBest Interest of Child as Precept in Delinquency Law– Child Welfare System Placement as AlternativeChild Welfare System Placement as Alternative
6060
IDEA Eligibility for Young People in IDEA Eligibility for Young People in Adult (Criminal) SystemAdult (Criminal) System
Evaluation Before Sentencing &Evaluation Before Sentencing &
Establish EligibilityEstablish EligibilityCompensatory Education to Extend EligibilityCompensatory Education to Extend EligibilityHybrid Sentencing OpportunitiesHybrid Sentencing Opportunities
– Youth ActYouth Act– Probation in Criminal Case with Probation in Criminal Case with
Treatment in Juvenile + Spec Ed Treatment in Juvenile + Spec Ed (Continuum)(Continuum)
6161
Post-Disposition:Post-Disposition:Examples of ArgumentsExamples of Arguments
Can’t Execute BIP in Violent Environment of Can’t Execute BIP in Violent Environment of Juvenile PrisonJuvenile Prison
Train and Enlist Juvenile Prison Personnel to Help Train and Enlist Juvenile Prison Personnel to Help with IEP’s (Re-Integration Strategy)with IEP’s (Re-Integration Strategy)
Residential Treatment Center vs. IncarcerationResidential Treatment Center vs. Incarceration Not Fulfilling Treatment Order; Modify; Civil Not Fulfilling Treatment Order; Modify; Civil
ContemptContempt Third-Party Contempt (To Block Revocation)Third-Party Contempt (To Block Revocation)
– School System’s Unlawful Exclusion of Child or Failure to School System’s Unlawful Exclusion of Child or Failure to Provide FAPE Precludes Child’s Compliance with School Provide FAPE Precludes Child’s Compliance with School Attendance or Related Condition of Probation or ParoleAttendance or Related Condition of Probation or Parole
6262
Direct IDEA-Based ChallengesDirect IDEA-Based Challenges Failure to Provide Failure to Provide
Special Education Special Education ServicesServices– In Juvenile Incarceration In Juvenile Incarceration
FacilityFacility– State Prison or JailState Prison or Jail– Federal Bureau of Federal Bureau of
PrisonsPrisons– Immigration Detention Immigration Detention
CentersCenters
Chicken Bone or Case Chicken Bone or Case Aggregation (or Class Aggregation (or Class Action)Action)
6363
Probation or Parole RevocationProbation or Parole Revocation
Protect and Defend Protect and Defend Against RevocationAgainst Revocation– Written Request for Written Request for
Accommodation (or in Accommodation (or in Disposition Order) Disposition Order)
– Failure to Accommodate Failure to Accommodate (e.g., PO Trained to (e.g., PO Trained to Communicate)Communicate)
6464
Case Aggregation &Case Aggregation &Attorney MobilizationAttorney Mobilization
How Case Aggregation Has Worked in How Case Aggregation Has Worked in D.C.D.C.– Training Attorneys (Attorneys’ Fees & Training Attorneys (Attorneys’ Fees &
Self-Interest)Self-Interest)– Lots of Spec Ed Hearings Lots of Spec Ed Hearings – Lots of Private PlacementsLots of Private Placements– PDS Spec Ed UnitPDS Spec Ed Unit– Attorneys’ Fees: BacklashAttorneys’ Fees: Backlash
6565
Case Aggregation &Case Aggregation &Attorney MobilizationAttorney Mobilization
Training of Probation and Aftercare WorkersTraining of Probation and Aftercare Workers
Training of Mental Health, Teachers, and Training of Mental Health, Teachers, and “Counselors” at Juvenile Incarceration “Counselors” at Juvenile Incarceration FacilityFacility
Training of JudgesTraining of Judges– Judges Appointing Spec Ed AttorneysJudges Appointing Spec Ed Attorneys
Panel & StandardsPanel & Standards– Judges Paying Spec Ed AttorneysJudges Paying Spec Ed Attorneys
6666
Case Aggregation &Case Aggregation &Attorney MobilizationAttorney Mobilization
– Expanded Budget, Poorly Allocated; Expanded Budget, Poorly Allocated; Studies; Emerging Consensus?Studies; Emerging Consensus?
– Training to Change the AttitudesTraining to Change the Attitudes– Class ActionsClass Actions– Re-Claiming Neighborhood Schools Re-Claiming Neighborhood Schools
(SAM, FSS, etc.)(SAM, FSS, etc.)