U.S. Department of Justice

Office of Justice Programs

Office of Juvenile Justice and Delinquency Prevention

John J. Wilson, Acting Administrator

From the Administrator

Large numbers of youth involved with

the juvenile justice system have

education-related disabilities, and as

many as 20 percent of students with

emotional disabilities are arrested at

least once before they leave school.

Information regarding disabilities can

assist those providing needed services

to youth at every stage of the juvenile

justice process and even help to

determine whether formal delinquency

proceedings should take place.

Special Education and the Juvenile

Justice System is intended to inform

judges, attorneys, advocates, probation officers, institutional staff, and

other youth-serving professionals

about the impact of special education

issues on juvenile justice matters.

The Bulletin summarizes the provisions of the Individuals with Disabilities Education Act and analyzes their

relevance to the juvenile justice

process—from intake and initial

interview to institutional placement

and secure confinement.

While special education considerations

may impose significant responsibilities

on the juvenile justice system, they

also serve as a substantial information

resource for juvenile justice professionals. This Bulletin increases our understanding of issues surrounding special

education, helping equip those who

work with juveniles to meet the special

needs of all youth.

John J. Wilson

Acting Administrator

July 2000

Helping youth to reach their educational

potential by protecting their rights under

IDEA can give them the tools they need to

succeed in life. In fact, many of the behavioral and educational issues addressed

through the special education system

closely parallel issues encompassed in the

juvenile court disposition process. In ensuring that disability-related needs are

identified and met, IDEA may play a significant role in reducing delinquent behavior.

This Bulletin, directed to judges, attorneys

and advocates, probation officers, educators, institutional staff, mental health professionals, and service providers, seeks to

heighten awareness of special education

issues in the juvenile justice system and

ensure that youth with disabilities receive

the services they need. The Bulletin summarizes pertinent provisions of Federal law

related to special education, discusses how

the special education process and information about disabilities may be useful in juvenile delinquency proceedings, and examines special education in the context of

juvenile and adult institutions.

Federal Laws Related

to Special Education

Congress first enacted a comprehensive

special education law in 1975: the Education for All Handicapped Children Act

Special Education and

the Juvenile Justice

System

Sue Burrell and Loren Warboys

A significant proportion of youth in the

juvenile justice system have educationrelated disabilities and are eligible for special education and related services under

the Federal Individuals with Disabilities

Education Act (IDEA). While 8.6 percent of

public school students have been identified as having disabilities that qualify them

for special education services (U.S. Department of Education, 1998), youth in the juvenile justice system are much more likely

to have both identified and undiscovered

disabilities. For example, youth with learning disabilities or an emotional disturbance

are arrested at higher rates than their nondisabled peers (Chesapeake Institute, 1994;

SRI International, Center for Educational

Human Services, 1997), and studies of incarcerated youth reveal that as many as

70 percent suffer from disabling conditions

(Leone et al., 1995).

Information about a youth’s disability may

be relevant at every stage of a juvenile

court case. It may help to determine

whether formal delinquency proceedings

should proceed or suggest important directions for investigation and case strategy. Information about the disability often

helps to explain behavior in a way that

facilitates constructive intervention, and it

is essential to arriving at a disposition that

will both meet the youth’s rehabilitative

needs and comply with IDEA requirements.
2

for IDEA concepts. For example, California

uses “individual with exceptional needs”8

to refer to “a child with a disability,” as

defined by IDEA, and “designated instruction and services” to refer to “related services,” as defined by IDEA.9

 While a State

may grant protections beyond those required by IDEA, States may not provide

fewer rights than would be afforded under

Federal law.

Definition of Disability

To be eligible under IDEA, a youth must

have one or more of the disabilities listed

in the statute and implementing final regulations and, because of that disability,

require special education and related services. The range of qualifying disabilities

is broad, including:10

◆ Mental retardation.

◆ Deaf-blindness.

◆ Deafness.

◆ Hearing impairment.

◆ Speech or language impairment.

◆ Visual impairment.

◆ Emotional disturbance.

◆ Orthopedic impairment.

◆ Autism.

◆ Traumatic brain injury.

◆ Other health impairment.

◆ Specific learning disability.

◆ Multiple disabilities.

Disabilities that are frequently encountered

among delinquents include emotional disturbance, specific learning disability, mental retardation,11 other health impairment,

and speech or language impairment.

The two most common disabilities found

in the juvenile justice system are specific

learning disability and emotional disturbance. Specific learning disability is defined 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.”12 It may include conditions such

as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia but not a learning

problem that is primarily the result of environmental, cultural, or economic disadvantage.13 Emotional disturbance is defined as:

(i) [A] condition exhibiting one or

more of the following characteristics

(EHA).1

 Since then, Congress has amended

the law a number of times and renamed it

the Individuals with Disabilities Education

Act (IDEA). The first broad revision of the

law occurred in 1997, with amendments

that significantly changed a number of key

special education provisions.2

 Proposed

implementing regulations for the 1997

IDEA amendments were widely debated.

Final regulations were published March

12, 1999, and took effect May 11, 1999.3

As a condition of receiving Federal funds

under IDEA, States must demonstrate to

the U.S. Secretary of Education that they

have policies and procedures in effect that

fulfill specific requirements of the law.4

 Local education agencies (LEA’s) must have

policies, procedures, and programs consistent with State policies and procedures

that demonstrate eligibility.5

 The Federal

program is administered by the Office of

Special Education Programs, Office of Special Education and Rehabilitative Services,

U.S. Department of Education.

Two other Federal statutes provide additional protection for youth with disabilities: the Rehabilitation Act of 19736

 and

the Americans With Disabilities Act.7 Although both Acts have a broader purview,

they are often invoked to ensure fair treatment for youth with educational disabilities. Both provide for the filing of administrative complaints with the Office of Civil

Rights, U.S. Department of Education,

which has the authority to investigate

and order compliance.

In addition, all States have enacted laws

and regulations reflecting IDEA requirements. Some of these, however, are being

revised to reflect the 1997 IDEA amendments and the implementing regulations.

These laws are often found in State education codes and regulations. Although

most State special education laws closely

track IDEA, some use different terminology

over a long period of time and to a

marked degree that adversely affects

a child’s educational performance:

(A) An inability to learn that

cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal

relationships with peers and

teachers.

(C) Inappropriate types of behavior or feelings under normal

circumstances.

(D) A general pervasive mood

of unhappiness or depression.

(E) A tendency to develop

physical symptoms or fears

associated with personal or

school problems.

(ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted,

unless it is determined that they

have an emotional disturbance.14

Additional IDEA definitions of disability

terms can be found in 34 C.F.R. § 300.7(c).

Free Appropriate Public

Education

Every youth with a disability, as defined

by IDEA, is entitled to free appropriate

public education (FAPE). This entitlement

exists for all eligible children and youth,

including those involved in the juvenile

justice system,15 “. . . between the ages of

3 and 21, inclusive, including children with

disabilities who have been suspended or

expelled from school.”16

IDEA also requires that, “to the maximum

extent appropriate,”17 youth with disabilities, including those in public and private

institutions or other care facilities, are

educated with youth who are not disabled.

Placement in special classes, separate

schooling, or other removal from the regular educational environment occurs only

if the nature or severity of the disability is

such that education in regular classes with

the use of supplementary aids and services cannot be satisfactorily achieved.

This provision is often referred to as the

requirement for education in the “least

restrictive environment.”

Identification, Referral,

and Evaluation

IDEA requires school districts and other

public agencies to seek out all youth who

Twenty percent of students with emotional disturbances are arrested at least

once before they leave school, as compared with 6 percent of all students

(Chesapeake Institute, 1994). By the

time youth with emotional disturbances

have been out of school for 3 to 5 years,

58 percent have been arrested. Similarly, by the time youth with learning

disabilities have been out of school for

3 to 5 years, 31 percent have been

arrested (SRI International, Center for

Education and Human Services, 1997).
3

◆ At least one regular education teacher

of the child (if the youth is or may be

participating in a regular education

environment).

◆ At least one special education teacher of

the child or, if appropriate, at least one

special education provider of the child.

◆ A qualified representative of the LEA.

◆ An individual who can interpret the

institutional implications of evaluation

results.

◆ Others (at the discretion of the parents

or the agency) who have knowledge or

special expertise regarding the youth,

including related service personnel as

appropriate. This category also could,

at the discretion of the parents or the

agency, include persons such as probation officers, institutional staff, or other

service providers with knowledge or

special expertise regarding the youth.

◆ The child with a disability (if appropriate).

In developing the IEP, the IEP team considers, among other factors, the youth’s

present levels of educational performance,

his or her special education needs, the

services to be delivered, objectives to be

met, timelines for completion, and assessment of progress. IDEA requires each IEP

to include the following basic elements:25

◆ A statement of the child’s present levels

of educational performance, including:

❖ How the child’s disability affects his

or her involvement and progress in

the general curriculum (i.e., the

same curriculum as for nondisabled

children).

❖ For preschool children, if appropriate, how the disability affects the

child’s participation in appropriate

activities.

◆ A statement of measurable annual

goals, including benchmarks or shortterm objectives, related to:

❖ Meeting the child’s needs that result

from his or her disability to enable the

child to be involved in and progress in

the general curriculum, or for preschool children, as appropriate, to

participate in appropriate activities.

❖ Meeting each of the child’s other

educational needs that result from

his or her disability.

◆ A statement of the special education

and related services and supplementary aids and services to be provided to

the child, or on behalf of the child, and

a statement of the program modifications or supports for school personnel

that will be provided for the child to:

❖ Advance appropriately toward

attaining the annual goals.

❖ Be involved and progress in the general curriculum and participate in

extracurricular and other nonacademic activities.

❖ Be educated and participate with

other children with disabilities and

nondisabled children in the activities described above.

◆ An explanation of the extent, if any, to

which the child will not participate

with nondisabled youth in the regular

class and in extracurricular and other

nonacademic activities.

◆ A statement of any individual modifications in the administration of State or

districtwide assessments of student

achievement that are needed in order

for the child to participate in the assessment. If the IEP team determines

that the child will not participate in a

particular State or districtwide assessment of student achievement (or part

of an assessment), a statement of why

that assessment is not appropriate for

the child and how the child will be assessed is needed.

◆ A projected date for the beginning of

services and modifications and the anticipated frequency, location, and duration of these services and modifications.

◆ A statement of how the child’s progress

toward the annual goals will be measured and how the child’s parents will

be regularly informed of their child’s

progress—at least as often as parents

are informed of their nondisabled

may have a disability. States and LEA’s

must identify, locate, and evaluate all

youth with disabilities and implement a

system to determine which ones are currently receiving special education and

related services. This is often called the

child find obligation.18 In conjunction with

these requirements, States typically have

statutes, regulations, policies, and procedures designating who may refer youth

for evaluation and the process that must

be followed.

To determine eligibility for special education and related services, States must notify parents, obtain parental consent to

evaluation, use a variety of assessment

tools—administered by knowledgeable

personnel—appropriate to the youth’s

cultural and linguistic background, and

provide for reevaluation.19 State policies

and procedures typically set time limits

for each step in the notice, consent, and

evaluation/reevaluation process. Reevaluation must occur at least once every 3

years, but a child’s parents and teachers

may request it at any time.20

The Individualized

Education Program

Under the 1997 IDEA amendments, an

LEA is required to have an individualized

education program (IEP) in effect at the

beginning of each school year for each

youth with a disability in its jurisdiction.21

Federal regulations call for no more than

30 days to pass between the determination that a child needs special education

and related services and the conduct of

the meeting22 to develop an IEP for the

child. A team that includes the following

people develops the IEP:23

◆ The child’s parents.24
4

children’s progress—toward the annual

goals and the extent to which that progress is sufficient to enable the child to

achieve the goals by the end of the year.

IDEA also requires IEP’s to include:

◆ A statement of transition service needs

of the student that focuses on the

student’s courses of study (e.g., advanced placement courses, vocational

education) if the youth involved is 14

years old (or younger if determined

appropriate by the IEP team). The

statement must be updated annually.

◆ A statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed

linkages for transition services if the

youth involved is 16 years old (or

younger if determined appropriate by

the IEP team).

The requirement that transition services

be provided to assist youth in moving from

school to postschool activities has particular significance for youth in the juvenile

justice system. These services include postsecondary education, vocational training,

employment (including supported employment), continuing and adult education, specific adult services, independent living, and

community participation.26 For example,

the IEP may call for the student to receive

specific assistance in applying for admission to a local community college or enrollment in an automobile mechanics program. When the purpose of the meeting will

be consideration of the student’s transition

service needs or needed transition services, or both, the youth with a disability

of any age must be invited to the IEP meeting. Finally, the 1997 IDEA amendments

require the IEP team to consider special

factors in developing the IEP. Accordingly,

the amendments direct the IEP to:

(i) In the case of a child whose behavior impedes his or her learning

or that of others, consider, if appropriate, strategies, including

positive behavioral interventions,

strategies, and supports to address

that behavior;

(ii) In the case of a child with limited

English proficiency, consider the

language needs of the child as those

needs relate to the child’s IEP;

(iii) In the case of a child who is

blind or visually impaired, provide

for instruction in Braille and the

use of Braille unless the IEP team

determines, after an evaluation of

the child’s reading and writing

skills, needs, and appropriate reading and writing media (including an

evaluation of the child’s future

needs for instruction in Braille or

the use of Braille), that instruction

in Braille or the use of Braille is not

appropriate for the child;

(iv) Consider the communication

needs of the child, and in the case

of a child who is deaf or hard of

hearing, consider the child’s language and communication needs,

opportunities for direct communications with peers and professional

personnel in the child’s language

and communication mode, academic level, and full range of needs,

including opportunities for direct

instruction in the child’s language

and communication mode; and

(v) Consider whether the child requires assistive technology devices

and services.27

IEP’s must be implemented as soon as possible after the IEP meeting and must be reviewed by the IEP team at least once per year

and revised as needed to address any lack

of expected progress, results of reevaluation, information provided by the parents,

the youth’s anticipated needs, or other matters.28 By statute, most States set specific

timelines for each stage in the referral,

evaluation, and IEP development process.

Special Education and

Related Services

Under IDEA, special education means

“. . . specially designed instruction, at no

cost to parents, to meet the unique needs

of a child with a disability. . . .”29 It includes

“instruction conducted in the classroom,

in the home, in hospitals and institutions,

and in other settings and instruction in

physical education. . . .”30 IDEA also requires that related services be provided to

help youth with disabilities benefit from

special education services. These services

include “. . . transportation, and such developmental, corrective, and other supportive services as are required to assist the

child with a disability to benefit from

special education . . . (including speechlanguage pathology and audiology services,

psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and

assessment of disabilities in children, counseling services, including rehabilitation

counseling, orientation and mobility services, and medical services, except that

such medical services shall be for diagnostic and evaluation purposes only).” The term

also includes social work services in schools

and parent counseling and training.31

Due Process Protections

Parents are involved to the maximum

extent possible. They are provided with

a full range of procedural safeguards,

including the right to examine records,

receive written notice of proposed actions

(or refusal to take requested actions), and

participate in meetings relating to the identification, evaluation, and educational

placement of their child and the provision

of FAPE to the child. Federal law also requires States to provide an opportunity

for parents to initiate due process proceedings and the mediation of disputes

with respect to identification, evaluation,

and educational placement of their child

and the provision of FAPE to the child.32

When a parent (as defined in 34 C.F.R.

§ 300.20) cannot be identified, the whereabouts of the parent cannot be discovered

after reasonable efforts, or the student is a

ward of the State (as defined by State law),

IDEA provides for the assignment of a surrogate parent to protect the educational

rights of the child. The surrogate parent

may not be an employee of the LEA, State

educational agency (SEA), or other agency

involved in the education or care of the

child (with the exception of nonpublic
5

agency employees providing noneducational care for the child who meet the

other requirements); must have no interest that conflicts with the interest of the

child he or she represents; and must have

knowledge and skills that ensure adequate representation of the child.33

States may provide for the transfer of parental rights to a student with a disability

when the student reaches the age of majority as defined by State law (except if the

student has been determined incompetent

under State law). Such provisions must

ensure that the individual student and the

parents receive any required notice under

the regulations, that all other rights accorded to the parents under IDEA transfer

to the student, that all rights accorded to

the parents under IDEA transfer to students

incarcerated in adult or juvenile State or

local institutions, and that the parents and

individual student shall be notified of

whatever rights are transferred pursuant

to such provisions. There is also a special

rule for States that have a mechanism to

determine that a student with a disability

who has reached the age of majority does

not have the capacity to provide informed

consent to his or her educational program

(even though there has been no determination of incompetence). Such States

must provide procedures for appointing

the parent or, if the parent is not available, another individual to represent the

student’s educational interests throughout the period of IDEA eligibility.34

Under IDEA, States and LEA’s must establish

a mediation procedure to resolve disputes

and make it available whenever a due process hearing is requested. Mediation must

be voluntary, scheduled in a timely manner,

held in a place convenient to the parties

to the dispute, and conducted by a qualified and impartial mediator who is trained

in effective mediation techniques. Mediation must not be used to deny or delay the

parents’ right to pursue their complaints

through the due process hearing procedures

or to deny any other rights afforded under

part B of IDEA. Any agreement reached

through mediation must be put in writing.35

Parents may pursue complaints through

a due process hearing conducted by the

State or, in some States, the LEA.36 States

are required to develop model forms to

assist parents in filing due process requests. Each party (e.g., the parents, the

educational agency) must disclose any

evaluations and recommendations the

party intends to use at least 5 business

days prior to the hearing. The hearing

officer must not be employed by the State

agency or the LEA that is involved in the

education or care of the child. At the hearing, the parents may be accompanied by

and advised by an attorney and by other

persons with special knowledge of or training about the problems of youth with disabilities. Parents have the right to present

evidence; prohibit the introduction of any

evidence not disclosed 5 business days

before the hearing; confront, cross-examine,

and compel the attendance of witnesses;

obtain a written or, at the option of the

parents, electronic verbatim record of the

hearing; and obtain written or, at the option of the parents, electronic findings of

fact and decision.37

If the due process hearing is conducted

by an LEA, any party aggrieved by the findings and decision in the hearing may appeal the decision to the SEA.38 Any party

who does not have a right of appeal from a

due process hearing to the SEA, or who

wishes to appeal an SEA ruling, may file a

civil action in the appropriate State court

or Federal district court.39 Reasonable attorneys’ fees may be awarded by the court

at its discretion to the parents of a child

with a disability who is the prevailing

party in any action or proceeding brought

under section 615 of the Act. IDEA also

provides for the award of attorneys’ fees in

connection with IEP meetings convened as

the result of administrative proceedings,

judicial action, or, at the discretion of the

State, precomplaint mediation. However, it

prohibits the awarding of attorneys’ fees

following the rejection of a settlement offer, unless the parents were substantially

justified in rejecting the offer.40

In addition to the remedies offered through

due process hearings or civil actions in

relation to individual cases, States must

have a complaint procedure in place for

alleged IDEA violations. Possible outcomes

of these procedures include monetary

reimbursement or other corrective action

appropriate to the needs of the child and

appropriate provision of future services.

Any organization or individual may use

the State complaint process, and complaints must be resolved within 60 days

after a complaint is filed.41

The “Stay Put” Rule

As a general matter, Federal law requires

that, absent some agreement to the contrary, the youth shall remain in his or her

current education placement pending the

completion of any due process proceedings, court proceedings, or appeals.42 In

Honig v. Doe,43 the U.S. Supreme Court

interpreted this provision to mean that

school officials may not unilaterally exclude youth with disabilities from their

educational placement. Except as provided in 34 C.F.R. § 300.526, such youth

must be allowed to “stay put” in existing

Special Education Timeline1

Referral/request Public agency must ensure that within a reasonable

for evaluation: amount of time following parental consent to evaluation,

the child is evaluated, and if the child is determined eligible,

special education and related services are provided (34

C.F.R. § 300.343(b)(1)).

Development of IEP: Meeting to develop IEP must be held within 30 days of a

determination that a child needs special education services

(34 C.F.R. § 300.343(b)(2)).

Implementation of IEP: Must occur “as soon as possible” following the IEP meeting

(34 C.F.R. § 300.343(b)(ii)), and at the beginning of every

school year, the LEA must have in effect an IEP for each

child with a disability (20 U.S.C. § 1414(d)(2)(a)).

Review of IEP’s: Periodically and at least annually, the IEP team must review

IEP’s and revise as appropriate (20 U.S.C. § 1414(d)(A);

34 C.F.R. § 300.343(c)).

Reevaluation: At least once every 3 years or when the child’s parent or

teacher requests it (20 U.S.C. § 1414(a)(2); 34 C.F.R.

§ 300.536(b)).

1 States have many more specific time limits and requirements in their statutes and regulations than this sample

timeline provides.
6

educational placements during the pendency of any administrative or judicial

proceeding. Prominent in the Court’s reasoning was that Congress enacted the Federal law after finding that school systems

across the country had excluded one of

every eight youth with disabilities from

classes. Congress intended to strip

schools of the unilateral authority they

had traditionally employed to exclude students with disabilities, particularly students with emotional disturbances.44

Since the enactment of IDEA in 1975 (then

EHA), there has been considerable discussion of the stay put requirement. Some

people have argued that the schools’ options were too limited and cumbersome

when there was a legitimate need to remove a dangerous or extremely disruptive youth. The 1997 IDEA amendments

attempt to strike a balance between the

need to provide a safe, orderly environment and the need to protect youth with

disabilities from unwarranted exclusion

through disciplinary proceedings. The

amendments include limited exceptions

for misconduct involving weapons, illegal

drugs, or situations in which the youth or

others are in danger of injury.

Under the 1997 IDEA amendments, school

personnel may suspend youth with disabilities for up to 10 school days or less at

a time for separate incidents of misconduct

to the extent such action would be applied

to youth without disabilities. If, for example,

a student without a disability would be

suspended from class for 3 days for particular misbehavior, the same sanction could

be imposed on a student with a disability

for the same kind of behavior. School personnel may also remove such youth to an

interim alternative educational setting for

up to 45 days if they possess or carry weapons to school or school functions, knowingly possess or use illegal drugs, or sell

or solicit the sale of controlled substances

while at school or school functions.45 IDEA

specifically defines controlled substances,

illegal drugs, and weapons.46

The 1997 amendments also permit a hearing officer to order a change in the placement of a child with a disability to an appropriate interim alternative educational

setting for not more than 45 days if the

hearing officer determines that the public

agency has demonstrated by substantial

evidence that maintaining the current

placement “is substantially likely to result

in injury to the child or to others.” Before

making such an order, the hearing officer

must consider whether the current placement is appropriate and whether the public

agency has made reasonable efforts to minimize the risk of harm in the current placement (e.g., with supplementary aids and

services). The officer should determine that

the interim alternative educational setting

would enable the youth to continue to

progress in the general curriculum and continue to receive those services and modifications that will enable the child to meet

the goals called for in the IEP.47 In addition,

services and modifications to attend to the

child’s behavior and prevent the behavior

from recurring must be addressed.

Disciplinary removal for more than 10 consecutive school days (or a series of removals adding up to more than 10 days and

constituting a pattern of removal) constitutes a change of placement, which triggers a number of procedural safeguards.48

For example, the LEA must review the

youth’s behavioral intervention plan and

modify it as necessary to address the

behavior not later than 10 business days

after either first removing the child for more

than 10 school days in a school year or

commencing a removal that constitutes a

change in placement. If the LEA did not

previously conduct a functional behavioral

assessment and implement a behavioral

intervention plan, it must convene an IEP

meeting to develop a plan to address the

behavior.49 Moreover, the public agency

must provide services to the extent required under section 300.121(d).50

If it is contemplated that a youth with a disability will be removed from school for

more than 10 school days, the IEP team

must immediately (or within 10 school days

of the decision to take disciplinary action)

review the relationship between the child’s

disability and the behavior subject to disciplinary action. In making this “manifestation determination,”—a requirement under

the 1997 amendments—the team and other

qualified personnel consider all relevant

information including evaluation and diagnostic results and other relevant information from the parents and observations

of the youth. The team also considers

whether the IEP and placement were appropriate, whether services were being provided consistent with the IEP, whether the

disability impaired the youth’s ability to

understand the consequences of the behavior subject to discipline, and whether the

disability impaired the youth’s ability to

control the behavior.51

If it is determined that the behavior was

not a manifestation of the youth’s disability,

the disciplinary procedures applicable to

youth without disabilities may be applied.52

If the behavior was a manifestation of the

youth’s disability, the LEA should immediately remedy any deficiencies in the IEP or

its implementation53 and observe the 10-

day or 45-day limits and other protections

on placing the youth in an interim alternative educational setting. Again, even if the

behavior was not a manifestation of the

youth’s disability, the LEA must continue

to provide educational services to the extent required under section 300.121(d).54

Parents have the right to an expedited appeal of the manifestation determination and

the placement. While proceedings challenging the interim alternative placement or

manifestation determination (in the case of

drugs, weapons, and hearing officer placement) are pending, the youth must remain

in the interim alternative placement until

the pertinent time period expires unless

the parents and public agency agree otherwise. However, if the school proposes to

change the youth’s placement after this

time period, the youth has the right to

return to the original placement unless a

hearing officer has extended his or her

placement. The only exception is that, if

school personnel maintain that it is dangerous for the youth to be in the current

placement, the LEA may request an expedited hearing to determine whether he or

she should be placed in the alternative educational setting or other appropriate placement during the due process proceedings.55

The stay put rule also protects the rights

of some youth who have not officially been

determined eligible for special education

and who have engaged in behavior subjecting them to disciplinary removal. Under

the 1997 IDEA amendments, such youth are

entitled to the stay put rule and other disciplinary due process protections if the LEA

had “knowledge that the child was a child

with a disability before the behavior that

precipitated the disciplinary action occurred.”56 The agency is deemed to have

that knowledge if the parents have expressed concern in writing to agency personnel that the youth is in need of special

education; his or her behavior or performance demonstrates the need for such

services; the parents have requested an

evaluation of special education eligibility;

or the teacher or other LEA personnel, in

accordance with the agency’s established

child find or special education referral system, have expressed concern to the director of special education of the agency or

other personnel about the youth’s behavior or performance.57
7

Special Education in

Juvenile Delinquency

Cases

IDEA’s comprehensive system of identification, evaluation, service delivery, and

review has special relevance for juvenile

justice professionals. The purpose of the

special education system, like the juvenile

justice system, is to provide individualized

services designed to meet the needs of a

particular youth. The enhanced behavioral

intervention and transition service needs

requirements in the 1997 IDEA amendments

bring special education goals even closer

to those of the juvenile court. Moreover,

the careful documentation of service needs

and ongoing assessment of progress required by IDEA bring valuable informational

resources to juvenile justice professionals.

This section presents a brief overview of

how special education information may be

helpful as cases make their way through

juvenile court. Some of the issues discussed,

such as insanity or incompetence, arise

only occasionally. Others, such as the impact on disposition of whether a child has

a disability, are relevant in every case in

which a delinquent youth is eligible for

special education services.

Intake and Initial Interviews

The short timeframe for juvenile court proceedings leaves little room for missed opportunities. Juvenile justice professionals

must be alert from the earliest moment for

clues to the youth’s special education status or existing unidentified disabilities.

This process, which should become part

of the standard operating procedure, includes carefully interviewing the youth

and his or her parents, routinely gathering

educational records, procuring examinations by educational and mental health

experts, investigating educational services

at potential placement facilities, and coordinating juvenile court proceedings with

the youth’s IEP team. Under the 1997 IDEA

amendments, whenever a school reports a

crime allegedly committed by a youth with

a disability, school officials must provide

copies of the youth’s special education

and disciplinary records to the appropriate authorities to whom the school reports

the crime, but only to the extent that the

Family Educational Rights and Privacy Act

(FERPA) permits the transmission. FERPA

allows school officials to transmit school

records to law enforcement officials only

if parents consent in writing to the transmission and in certain other narrowly

tailored situations (see 34 C.F.R. § 99.30).

This requirement should help ensure

that, at least in appropriate school-related

cases, special education history, assessments, and service information are readily

available early in the court process.58

Juvenile justice professionals can learn to

recognize disabilities by carefully reading

the legal definitions of disability. It is important to understand that youth may have a

variety of impairments that are not immediately apparent. Numerous checklists and

screening instruments are available to help

recognize signs of disabilities and to determine eligibility for special education services (National Council of Juvenile and

Family Court Judges, 1991).

If circumstances suggest the need for an

eligibility evaluation, modification of a previously existing IEP, or some other exercise

of the youth’s rights under special education law, juvenile justice professionals

should ensure that appropriate action is

expeditiously taken. They should request

that parents give written consent for the

release of records and should submit a

written request for information, evaluation,

or review to the LEA.

Juvenile justice professionals could start

by contacting the LEA to obtain its policies

and procedures for providing special education services to youth in the juvenile justice system. Some districts have designated

an individual to deal with compliance issues,

and that person may be helpful in expediting or forwarding requests to the right person or agency. Most jurisdictions have a

number of other groups that can provide

advocacy or other assistance in navigating

the special education system. Protection

and advocacy offices, special education

advocacy groups, learning disabilities associations, and other groups providing

support or advocacy for particular disabilities may greatly assist juvenile justice

professionals.

Determination of Whether

Formal Juvenile Proceedings

Should Go Forward

Nothing in IDEA prohibits an agency from

“reporting a crime committed by a child

with a disability to appropriate authorities”

or prevents law enforcement and judicial

authorities from “exercising their responsibilities with regard to the application of

Federal and State law to crimes committed

by a child with a disability.”59 These provisions, outlined in the 1997 amendments,

were made in response to concerns that

IDEA’s procedural protections could be interpreted to preclude juvenile court jurisdiction over school-related crimes committed by youth with disabilities. In the past, at

least one court ruled under State law that a

school could not initiate a juvenile court

prosecution as a means of evading the procedural requirements of IDEA.60 Other courts

found the juvenile court lacked jurisdiction

in cases involving noncriminal schoolrelated misconduct in which special education procedures had not been followed.61

In at least one case decided after the 1997

amendments, the court confirmed that

IDEA does not prevent juvenile courts

from exercising jurisdiction over students

with disabilities, even if the school is attempting to evade its special education

responsibilities. Nonetheless, intake officers and prosecutors should scrutinize

whether such evasion has occurred in

determining whether a particular case

belongs in the juvenile justice system and

how it should be processed.62 Courts and

hearing officers have stressed that the

school’s responsibility to comply with

IDEA procedural requirements does not

end when a youth with a disability enters

the juvenile justice system.63

Even if courts have the power to act, that

does not mean the power should be exercised in every case. Long before the 1997

IDEA amendments, a number of courts

found that the best course was to dismiss

the juvenile court case or defer it until special education proceedings stemming from

the misbehavior could be completed.64

Many juvenile justice professionals have

encountered cases in which a youth enters the juvenile justice system for a relatively minor offense and his or her stay

escalates into long-term incarceration because of the youth’s inability to succeed

in programs developed for low-risk

delinquent youth. This may happen either

because the disability-related behavior

makes it difficult for the youth to understand or comply with program demands or

because his or her behavior is misinterpreted as showing a poor attitude, lack of

remorse, or disrespect for authority.

If the juvenile court petition involves a

youth with an identified or suspected

disability, juvenile justice professionals

should first consider whether school-based

special education proceedings could provide services or other interventions that

would obviate the need for juvenile court

proceedings. This is particularly true for

incidents occurring at school. The 1997
8

IDEA amendments require thorough scrutiny of behavioral needs and implementation of appropriate interventions that may

far exceed what most juvenile courts are

able to provide. In appropriate cases, the

juvenile court may wish to consider:

◆ Continuing or deferring the formal prosecution pending the outcome of special

education due process and disciplinary

proceedings that may alleviate the need

for juvenile court intervention.

◆ Placing first-time offenders and/or youth

alleged to have committed offenses that

are not considered too serious for informal handling into diversion or informal

supervision programs. Through such

programs, the court imposes specific

conditions on the youth’s behavior, such

as regular school attendance, participation in counseling, observation of specified curfews, or involvement in community service programs. If the youth

successfully complies with these conditions, the case is dismissed at the end of

a specified period—usually 6 months to

1 year. Allowing the youth to remain in

the community, subject to such conditions, may facilitate the completion of

special education proceedings while

ensuring heightened supervision of

the youth. Through IEP development

or modification, the youth might be

determined eligible for services that

supplant the need for formal juvenile

court proceedings.

◆ Dismissing the case in the interest of justice. This option should be considered

in cases in which the disability is so

severe that it may be difficult or impossible for the youth to comply with court

orders. This may occur, for example, if

the offense is relatively minor; the youth

suffers from mental illness, emotional

disturbance, or mental retardation; and/

or services are forthcoming through the

special education system.

Detention

Youth taken into secure custody at the time

of arrest are entitled to judicial review of

the detention decision within a statutory

time period. Depending on the jurisdiction

and characteristics of the case, the length

of detention may range from several hours

to several months. Many professionals view

the detention decision as the most significant point in a case. Detention subjects the

youth to potential physical and emotional

harm. It also restricts the youth’s ability to

assist in his or her defense and to demonstrate an ability to act appropriately in the

community.

Unfortunately, youth with disabilities are

detained disproportionately (Leone et al.,

1995). Experts posit that one reason for this

is that many youth with disabilities lack the

communication and social skills to make a

good presentation to arresting officers or

intake probation officers. Behavior interpreted as hostile, impulsive, unconcerned,

or otherwise inappropriate may be a reflection of the youth’s disability. This is

another reason why it is important to establish the existence of special education

needs or suspected disabilities early in the

proceedings. Juvenile justice professionals

must be sensitive to the impact of disabilities on case presentation at this initial

stage and work to dispel inaccurate first

impressions at the detention hearing.

In some cases, it may be appropriate for the

court to order the youth’s release to avoid

disrupting special education services. This

is particularly true if adjustments in supervision (e.g., modification of the IEP or

behavioral intervention plans) may reduce

the likelihood of further misbehavior pending the jurisdictional hearing. Similarly, if

there are early indications that a special

education evaluation is needed, it may be

important for the youth to remain in the

community to facilitate the evaluation.

Many jurisdictions have home detention

programs that facilitate this type of release

by imposing curfews or other restrictions

on liberty that allow the youth to live at

home and attend school pending the outcome of the delinquency proceedings.

Waiver or Transfer to Adult

Criminal Court

Every jurisdiction has a mechanism by

which some juveniles may be tried in the

criminal justice system. Juveniles waived

or transferred to the criminal justice system are treated like adults and may receive

any sentence that could be imposed on an

adult criminal (with the exception, in some

States, of the death penalty). Although

some jurisdictions have automatic filing

rules (statutory transfer) for particular

offenses and others provide for prosecutorial direct file (concurrent jurisdiction),

many have waiver provisions that involve

the exercise of judicial discretion. In judicial waiver jurisdictions, the judge must

consider whether the youth is amenable

to treatment and rehabilitation in the juvenile justice system.

When making this determination, the existence of specific learning disabilities, mental

retardation, serious emotional disturbance,

traumatic brain injury, developmental disabilities, or other disabilities qualifying the

youth for special education services should

be taken into account (Barnum and Keilitz,

1992; Woolard et al., 1992). For example, it

may be significant for the court to know

that the youth has a previously undiagnosed learning disability that could be addressed through special education and

related services available in the State’s juvenile training school or other State facilities for secure confinement of serious juvenile offenders. Information about particular

disabilities (e.g., mental retardation) may

also help to dispel inaccurate images of

the youth in relation to waiver criteria

such as criminal sophistication or mitigate his or her role in the alleged offense.

The court should also be informed of the

status of previous juvenile court orders

or service mandates through the special

education system for mental health, education, or other services (Beyer, 1997). If

these services were not implemented, it

would be unjust to place the mantle of

rehabilitative failure on the youth. In such

cases, the juvenile court should retain

jurisdiction to ensure that appropriate

special education and other services are

provided.

Evidentiary Issues

The record documenting the extent and

nature of any disability—and its impact on

the youth’s thinking and acting—may play

a critical role in helping to determine the

existence of important evidentiary issues:

◆ Insanity. Occasionally, mental illness

or mental status may affect functioning

so drastically that the youth may be

legally insane under State law. Records

of special education evaluation and

services in connection with emotional

disturbance, traumatic brain injury,

or other disabilities may be helpful in

evaluating sanity.

◆ Incompetence. A youth may be declared

incompetent for adjudication if the court

finds that he or she is unable to understand the nature of juvenile court proceedings or is unable to assist the defense attorney.65 Information about the

impact of the youth’s disability (e.g.,

a low level of intellectual functioning,

problems in communicating, emotional

disturbance, perceptual difficulties,

and deficits in memory) may have a

bearing on the court’s finding (Grisso,

1997; Grisso, Miller, and Sales, 1987).

◆ Intent to commit the offense (mens

rea). As in criminal cases, delinquency
9

allegations may be sustained only if

each element of the offense is proved

beyond a reasonable doubt.66 One of

the required elements is the intent to

commit the particular offense. Evidence of a disability, particularly one

involving limited mental functioning,

may suggest the need to evaluate this

issue and may sometimes be relevant

and admissible on the issue of intent.

◆ Confessions. The admissibility of confessions in State court may be challenged on the grounds that the youth

did not make a valid waiver of rights

under Miranda v. Arizona67 or the confession was not made voluntarily. In

determining the validity of Miranda

waivers, courts consider all of the circumstances, including the youth’s age,

experience, education, background, and

intelligence, and his or her capacity to

understand the nature of the warnings,

the meaning of the right to counsel and

privilege against self-incrimination,

and the consequences of waiving those

rights.68 Whether the confession was

made voluntarily is also measured

against all of the circumstances surrounding the interrogation, with the

focus on circumstances showing coercion.69 Many of the criteria governing

admissibility of confessions involve

areas that may be affected by any

number of disabilities.

Thus, a youth with mental retardation who

is unable to explain to counsel what happened in relation to the alleged offense

may have grounds to claim incompetence.

A youth whose learning disability relates

to comprehension of written materials

may have grounds to challenge a claimed

waiver of Miranda rights if the waiver was

based on written forms. A youth who is

mentally ill or emotionally disturbed may

have grounds to claim that his or her statement was not voluntary (Greenburg, 1991;

Grisso, 1980; Shepherd and Zaremba, 1995).

Records of a youth’s special education history may be useful to advocates in deciding whether to seek the advice of experts

on the impact of the disability on such issues. The records may also help show past

impairment with respect to particular

issues (Bogin and Goodman, 1986).

Disposition

Education may be the single most important service the juvenile justice system

can offer young offenders in its efforts to

rehabilitate them and equip them for success. School success alone may not stop

delinquency, but without it, troubled

youth have a much harder time (Beyer,

Opalack, and Puritz, 1988). When special

education needs are evident, they should

be an essential part of the social study

report prepared by the probation department to guide the court in making its disposition order. Moreover, juvenile justice

professionals should coordinate disposition planning with education professionals to avoid conflict and to take advantage of the rich evaluation resources and

services available through IDEA.

The resulting disposition order should reflect the court’s review of special education

evaluations and the goals, objectives, and

services to be provided under the IEP. If the

youth is to be placed out of the home, the

court should demand specific assurance

that the facility will meet the youth’s educational needs under IDEA. The juvenile court

should also use its disposition powers to

ensure special education evaluation and

placement for previously unidentified youth

who show indications of having a disability.

In deciding whether or where to place a

youth with a disability, it is also important

for the court to understand the impact of

the disability on behavior. Youth with attention deficit disorder (ADD), for example, commonly act impulsively, fail to

anticipate consequences, engage in dangerous activities, have difficulty with delayed gratification, have a low frustration

threshold, and have difficulty listening to

or following instructions. They may begin

to associate with delinquents or selfmedicate through drugs and alcohol because they are rejected by others. Proper

medication has a dramatic effect in helping

many of these youth control their behavior, and a variety of professionals are skilled

in treating ADD in medical, psychiatric, or

educational settings (Logan, 1992). Unless

the characteristics of ADD and the existence of effective interventions are recognized, youth with this disability stand a

good chance of being treated harshly, often

through incarceration, based on the outward manifestations of their disability.

Juvenile justice professionals should respond appropriately to evidence of such

disabilities by ensuring that appropriate

medical, mental health, and other services

are provided.

Juvenile justice professionals also must

learn to recognize potential problems for

youth with certain disabilities in particular settings, so as not to set the youth up

for failure. This does not mean that juvenile justice professionals need to become

diagnosticians or clinicians. However,

they should consult with education, mental health, and medical professionals. It is

important to seek professional advice

about the kinds of settings in which the

youth can function best and the kinds of

settings most likely to lead to negative

behavior. For example, a youth with an

emotional disturbance may not be able

to function in the large dormitory setting

typical of some institutions. Such youth

may feel especially vulnerable because of

past physical or sexual abuse or may simply suffer from overstimulation in an open

setting. They may require a setting in which

external stimuli are reduced to the greatest

extent possible and intensive one-on-one

supervision is provided. Youth with other

disabilities may need programs that minimize isolation and emphasize participation

in group activities.

Postdisposition monitoring. Juvenile justice professionals should ensure that youth

with disabilities receive the services ordered at disposition. Cases should be

reviewed to determine whether different

or additional services are needed and

whether the placement continues to be

appropriate. As part of this monitoring,

juvenile justice professionals should ensure that special education rights under

IDEA are being protected. When modification of the disposition plan is needed,

they should coordinate its development

with the youth’s IEP team. When it appears
10

that the youth’s special education needs

are not being met in the current placement, the court should order appropriate changes or, if necessary, terminate

juvenile court jurisdiction.

Youth With Disabilities

in Institutional

Settings

Nationally, youth and adults confined in

institutions have an astonishingly low

level of functioning with respect to basic

skills needed for living in the community:

About one third of prisoners are

unable to perform such simple jobrelated tasks as locating an intersection on a street map, or identifying and entering basic information

on an application. Another onethird are unable to perform slightly

more difficult tasks such as writing

an explanation of a billing error or

entering information on an automobile maintenance form. Only about

one in twenty can do things such as

use a schedule to determine which

bus to take. Young prisoners with

disabilities are among the least

likely to have the skills they need

to hold a job. For them, education

is probably the only opportunity

they have to become productive

members of society.70

Institutional education has a clear, positive effect in reducing recidivism and increasing postrelease success in employment and other life endeavors. For youth

with disabilities, special education and

related services provided through institutional schools are critically important to

that success.

The provisions of IDEA cover all State and

local juvenile and adult criminal corrections facilities.71 The only exclusion from

the entitlement to a FAPE applies (to the

extent that State law does not require special education and related services under

part B to be provided to students with disabilities) to any youth ages 18 through 21

who, in his or her last educational placement prior to incarceration in an adult

criminal corrections facility, was not actually identified as a child with a disability

and did not have an IEP under part B.72

A facility failing to comply with IDEA may be

challenged through administrative proceedings, individual lawsuits, or class-action civilrights litigation. Over the years, court and

administrative decisions have applied IDEA’s

protections to youth in juvenile detention

centers and training schools and those in

jails and prisons (Youth Law Center, 1999).

Dozens of decisions, rulings, and consent

decrees address a range of issues, including

identification of youth with disabilities, access to educational records, evaluation, IEP

development, service delivery, staff qualifications, and timelines for compliance with

required components in the special education program (Puritz and Scali, 1998; Youth

Law Center, 1999). Additional decisions address remedies such as compensatory education for failure to provide special education services to youth in institutions.73

Providing special educational services

to youth in custody presents many challenges. Factors to be dealt with include

length of stay, the facility’s physical layout, and the need for heightened security.

This section discusses a number of issues

that often arise.

Identification of Youth With

Disabilities in Institutional

Settings

IDEA’s child find obligation requires that

all youth with disabilities be identified,

located, and evaluated and that a practical method be implemented to determine

whether eligible youth are receiving needed

special education and related services.

One way to meet this obligation is to have

an efficient system in place to determine

whether the youth has been previously

identified as eligible. Routine screening

when the youth is admitted to or enters

the school program could reveal information about previous placements, special

classes, and other indicators that the youth

was in special education. Because it is important to obtain prior school records

promptly, it may be helpful to identify a

contact person at the LEA who can verify

special education records. As noted previously, the 1997 IDEA amendments require LEA’s to forward special education

and disciplinary records.74

Facilities also must find youth with disabilities who have not been identified previously

as eligible for special education. Intake staff,

probation officers, and regular education

staff should be trained to recognize students

who may have disabilities and take immediate steps to initiate referral for evaluation.

Because the evaluation process calls for

parental consent, the referral is best initiated by parents. LEA’s should assist parents in making written requests. However,

nothing in Federal law prevents other individuals or agencies from making the initial

request for evaluation of IDEA eligibility.

Educators, probation officers, or attorneys

should consider making the formal request

if parents are unavailable or unwilling.

This identification process must occur

even in facilities such as detention centers,

in which the typical length of stay may be

only a few days or weeks. In reality, some

youth in short-term facilities spend much

longer periods in custody (e.g., awaiting

placement or trial in adult criminal court),

and many will return to the facility in connection with probation violations or future

cases. In addition, useful information gathered at one facility may be shared with subsequent placements.

Evaluation

Facilities and agencies that have custody

of a youth for only a short time are not exempt from the mandate to begin the evaluation process, even though the complete

evaluation may take several weeks. If a

youth is moved before the evaluation is

complete, the school should forward the

information to the student’s next educational placement.

A common problem, particularly for shortterm facilities, is that the education program may have insufficient staffing or staff

without the requisite qualifications to conduct eligibility evaluations.75 In such cases,

the facility should make arrangements

through the LEA serving its youth to ensure that full evaluations by qualified personnel are provided. The facility also must

ensure that requests for reevaluation by

parents and teachers are honored.76

Interim Services and

Implementation of the IEP

When a facility confines a youth who has

an IEP, it must implement the existing IEP

or hold a new IEP meeting in accordance

with Federal law,77 just as a school district

would have to implement the IEP of a

special education student transferring

from another district. If the IEP team elects

to modify the IEP, it must provide interim

services comparable to those called for in

the existing IEP until the new IEP is developed. Federal law requires IEP’s to be

implemented as soon as possible after

initial IEP or revision meetings.78 Many

States have set time limits on the maximum duration of interim services.79

In some cases, juvenile facilities confine

youth who have had IEP’s in the past but

who have no current IEP or who were not in

school immediately prior to incarceration.
11

Federal law does not specifically address

the length of time after which IEP’s are no

longer required to be implemented. However, the existence of a previous IEP is

strong evidence that the youth has a

disability and is eligible for services. In

practice, officials should implement the

previous IEP unless they can document

persuasive reasons for not doing so.80 If the

IEP is no longer appropriate, a new program

should be developed as soon as possible.81

Several of the IEP requirements called for

in the 1997 IDEA amendments have particular significance for youth in institutional

settings. The requirements for positive behavioral interventions may overlap with

institutional case plans. Accordingly, educational staff should coordinate goals and

objectives with institutional staff to ensure

consistent practice and enable institutional

staff to recognize and deal effectively with

disability-related behavior.

The inclusion of transition service needs

in IEP’s beginning at least by age 14 (or

younger if determined appropriate) should

be closely coordinated with institutional

planning for parole or release of juvenile

offenders. When appropriate, planned

services should include assistance in obtaining full-time employment or enrolling

in college (Leone, Rutherford, and Nelson,

1991). As part of transition planning, it is

advisable to establish contact with local

community programs. Local school districts often are reluctant to take students

back after out-of-district placements, so

early contact is critical for effective postrelease programs. At least one court has

confirmed that institutions must ensure

that students’ special education needs

can be met and that current IEP’s are implemented as soon as possible in their next

placement.82

In addition, the 1997 IDEA amendments

provide that youth with disabilities are

entitled to extended school year services

if the child’s IEP team determines they

are needed to ensure FAPE. The youth’s

IEP team determines whether extended

school year services are needed on an

individual basis.83 Extended school year

services may be an important right for

youth with disabilities who are incarcerated during the summer.

Integration With

Nondisabled Students

The Federal requirement that special education students be educated, to the extent

appropriate, with students who are not disabled applies in the juvenile institutional

context.84 Institutions may not provide a

generic special education program and force

all youth with disabilities to attend. Students

may be placed in special education classes

only as specifically called for in each IEP.85

As in the outside community, youth must

be served with nondisabled students to

the maximum extent appropriate.

Discriminatory

Disincentives

Facilities must not allow discriminatory

disincentives to participation in special

education services.86 Special education programs should not interfere with programs

in which youth with disabilities may otherwise participate, including extracurricular

activities. Detention staff, for example, may

not require youth to choose between special education services and other desirable

programs, such as vocational classes. Similarly, a disability may not preclude a student’s placement in a less secure facility,

such as a camp, or keep the student from

being granted a furlough.

Due Process Protections

for Confined Youth

The due process protections embodied in

special education law are particularly important for youth in institutional care. At

the time of confinement, youth should

receive a handbook that sets forth their

rights and affirms that officials will not

discriminate on the basis of disability.87

Facilities should also inform youth and

their parents (or surrogate parents) of

their rights under IDEA. Documentation of

all actions taken to provide special education to an individual student is essential.

The due process protections outlined in

special education law must remain distinct

from any institutional grievance procedure.

It is impermissible for officials to require

students or parents to fulfill steps not

called for by IDEA in order to challenge

school officials’ decisions. In meeting the

due process requirements, facilities must

be careful to meet mandated timelines because delays may undermine the purpose

for which the timelines were established.

Especially in short-term placements, officials should establish expedited procedures to quickly resolve challenges to

agency decisions by the youth or parent.

Officials must include parents in the IEP

process consistent with IDEA. Unless a

court expressly limits their rights, parents

of youth in institutional settings have all

the rights that are accorded to parents of

youth who are not in out-of-home placements.88 For some placements, especially

prisons, distance is the biggest obstacle

to parental involvement. Distance must

not prevent a parent from participation.

If a youth is placed far from his or her

parents’ residence, teleconferencing may

be essential. The burden is on the facility

to keep all parties—especially parents—

involved in the IEP process.

In some cases, surrogate parents could be

appointed as an important part of a youth’s

due process protection. Surrogate parents

have all the rights regarding education that

the parents have. In institutional settings,

as in the community, the surrogate parent

must be independent and have no conflict

of interest. For example, in a juvenile detention center, the surrogate parent may

not be a probation department employee.89

Special Education in

Lockdown and Other

Restricted Settings

When youth with disabilities are removed

to lockdown units or other restricted settings, facilities must still provide special

education services required by the IEP.

While the 1997 IDEA amendments provide

for modification of IEP’s of students with

disabilities incarcerated in adult criminal

corrections facilities if there is a “bona fide

security or compelling penological interest,”90 no such exception exists for juvenile

facilities. Accordingly, the normal rules for

implementing and modifying IEP’s would

seem to apply. If misbehavior is school

related, placement in lockdown or other

restricted settings where youth with disabilities are unable to attend the regular

institutional school may constitute a

change of placement. A change of placement triggers additional disciplinary procedural safeguards, including review of

behavioral intervention plans, functional

behavioral assessments, manifestation determinations, and time limits on exclusion.

As in noninstitutional settings, students and

parents have the right to challenge changes

in placement or modifications to their IEP’s.

The practical difficulties in providing services to youth in lockdown and restricted

settings should prompt institutional and

educational administrators to work to reduce the length of time spent in such settings. To reduce the need for lockdown,

institutional educators also should pay

close attention to behavior intervention

strategies when developing the initial IEP.

Finally, staff development should include
12

Online Resources

National Information Center

for Children and Youth With

Disabilities (NICHCY)

Washington, DC

www.nichcy.org

This is a national information and referral

center for families, educators, and advocates on specific disabilities, special education and related services, educational

rights, and referral organizations that can

help with information, advocacy, and

support. NICHCY publishes fact sheets

on disabilities and legal issues, news

digests, guides for parents and students,

IDEA training materials, and publications

on educational rights.

Office of Juvenile

Justice and Delinquency

Prevention, Office of

Justice Programs, U.S.

Department of Justice

Washington, DC

www.ojjdp.ncjrs.org

This Web site offers a wide range of information on juvenile justice issues, including publications, resources, grants

and funding, and ways to contact the

agency with particular questions or research needs. It includes many education-related resources. For example, the

Web site’s search function yields close to

150 documents on special education.

Office of Special Education

Programs (OSEP), Office

of Special Education and

Rehabilitative Services

(OSERS), U.S. Department

of Education

Washington, DC

www.ed.gov/offices/OSERS/OSEP/index

This Web site gives practitioners access to

the 1997 IDEA regulations, annual reports

to Congress, links to OSEP-sponsored

Web sites of other organizations, research

on youth with disabilities, and materials

on implementation of the 1997 IDEA.

A wealth of information about IDEA, research on disabilities, methods of providing special education and related

services, organizations that focus on particular disabilities, and special education

in the juvenile justice system is available

on the Internet. These are just a few of

the many Web sites for practitioners interested in special education and juvenile justice issues.

Bazelon Center for Mental

Health Law

Washington, DC

www.bazelon.org

Bazelon presents a number of online informational publications, legal briefs and

analyses, and advocacy primers relating

to youth with disabilities, with an emphasis on mental disabilities.

Coordinating Council

on Juvenile Justice and

Delinquency Prevention

Washington, DC

www.childrenwithdisabilities.ncjrs.org

As part of its effort to promote a national

agenda for children and foster positive

youth development, the Coordinating

Council has created the Children With

Disabilities Web site. The site offers

families, service providers, and others

information about advocacy, education,

employment, health, housing, recreation,

technical assistance, and transportation

covering a broad array of developmental, physical, and emotional disabilities,

including learning disabilities.

Learning Disabilities

Association (LDA)

Pittsburgh, PA

www.ldnatl.org

This national nonprofit organization has

chapters in 50 States. Its Web site offers

families and professionals information on

advocacy, research, legal developments,

and access to local LDA chapters. LDA

has a broad range of fact sheets, news

alerts, and other publications on specific

learning disabilities, legal issues, and advocacy for youth with disabilities.

National Association of

Protection and Advocacy

Systems, Inc.

Washington, DC

www.protectionandadvocacy.com

This national association of protection and

advocacy and client assistance programs

serves people with disabilities. The Web

site contains publications and fact sheets

on disability-related legal issues, legal

alerts, an extensive list of organizations

focusing on disabilities, and information

about how to access protection and advocacy services.

The National Center on

Education, Disability, and

Juvenile Justice

College Park, MD

www.edjj.org

This newly created center is jointly funded

by the Office of Special Education Programs, U.S. Department of Education and

the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice. The

National Center on Education, Disability,

and Juvenile Justice (EDJJ) was created to

develop more effective responses to the

needs of youth with disabilities in the juvenile justice system or those at risk for involvement in the juvenile justice system.

EDJJ’s home is at the University of Maryland, with partners at Arizona State University, University of Kentucky, American

Institutes for Research, and the Pacer

Center. EDJJ’s Web site offers training and

materials, publications, parent support,

links to other resources, and conferences

and forums. Particular areas of focus include prevention, education programs,

transition and aftercare, and policy studies.

training institutional staff on IDEA mandates and on problems youth with disabilities may experience in institutional

settings.

In many ways, behavior intervention prescribed through IDEA’s mandates overlaps

with the mission of the greater juvenile

institution to intervene in and prevent

inappropriate behavior. Institutional staff

and educators should work together to

meet the behavioral needs of incarcerated

youth with disabilities.
13

Youth With Disabilities

Convicted in Adult Criminal

Court and Incarcerated

in Prison

Most youth with disabilities under the age

of 22 incarcerated in adult criminal corrections facilities are covered under IDEA’s

provisions. The only group excluded from

entitlement to FAPE comprises inmates

ages 18 through 21 (to the extent that State

law does not require that special education

and related services under part B be provided to students with disabilities) who,

in the last educational placement prior to

their incarceration in adult criminal corrections facilities, were not identified as

having disabilities and did not have IEP’s.91

The 1997 IDEA amendments also provide

that youth convicted as if they were adults

under State law and incarcerated in prison

are not entitled to participation in State

and districtwide assessments, the benefit

of requirements related to transition planning, or transition services if their eligibility for services will end, because of

their age, before they are eligible to be released from prison based on consideration

of their sentence and eligibility for early

release.92 As noted previously, the 1997

IDEA amendments permit the IEP team to

modify the IEP of an inmate convicted in

adult criminal court under State law and

incarcerated in a prison if the State has

demonstrated a bona fide security or compelling penological interest that cannot

otherwise be accommodated.93 Other than

these limitations, all IDEA protections apply to eligible youth in prisons.

Conclusion

Although the special education system imposes significant duties on the juvenile justice system, it offers substantial resources

to professionals working throughout that

system. Its emphasis on identifying behavior related to disabilities and developing

practical ways to address that behavior

offers a constructive, positive approach to

serving the needs of the many delinquent

youth who have disabilities. Ensuring that

special education needs are met at every

point in the juvenile justice process will

inevitably support and enhance the success

of delinquency intervention.

Endnotes

1. Pub. L. No. 94–142 (1975).

2. Individuals with Disabilities Education

Act, 20 U.S.C. § 1400 et seq., revised and

amended by Pub. L. No. 105–17, 111 Stat. 37

(1997). Some of the 1997 amendments became effective on their passage; others

took effect in 1998.

3. 34 C.F.R. § 300.1 et seq. (1999). The U.S.

Department of Education issued a notice

clarifying that compliance with new provisions in the regulations was not required

for fiscal year 1998 but was required for

fiscal year 1999 and carryover funds from

fiscal year 1998.

4. 20 U.S.C. § 1412(a); 34 C.F.R. § 300.110,

§§ 300.121–300.156.

5. 20 U.S.C. § 1413(a); 34 C.F.R. § 300.220,

§§ 300.121–300.156.

6. 29 U.S.C. § 794 (1973).

7. 42 U.S.C. § 12101 et seq. (1990); see also

Pennsylvania v. Yeskey, 118 S. Ct. 1952 (1998)

(holding that the Americans with Disabilities Act extends to prison inmates).

8. California Education Code § 56026.

9. California Education Code § 56363.

10. 20 U.S.C. § 1401(3)(A); 34 C.F.R.

§ 300.7(a)(1).

11. Children with ADD or ADHD may be

eligible for services under the category of

“other health impairment,” 34 C.F.R. § 300.7

(c)(9)(i) or through section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794).

12. 20 U.S.C. § 1401(26)(A); 34 C.F.R. §

300.7(c)(10)(i).

13. 20 U.S.C. § 1401(26)(B) and (C); 34

C.F.R. § 300.7(c)(10)(i) and (ii).

14. 34 C.F.R. § 300.7(c)(4).

15. 20 U.S.C. § 1412(a); 34 C.F.R. § 300.2(b)

(iv). The 1997 IDEA amendments permit

States to exclude youth ages 18 through 21

who, in the educational placement prior to

their incarceration in an adult criminal corrections facility, were not actually identified

as being a youth with a disability or did not

have an IEP. 20 U.S.C. § 1412(a)(1)(B)(ii).

Note that the implementing regulation permits exclusion of this group for those who,

in the last educational placement prior to

incarceration in an adult criminal corrections facility, were not actually identified

as being a youth with a disability and did

not have an IEP. 34 C.F.R. § 300.311(a).

16. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R.

§ 300.121(a). However, the general age eligibility provisions do not apply to youth

ages 18 through 21 if State law or practice,

or the order of any court, does not provide

for public education to youth in that age

range. 20 U.S.C. § 1412(a)(1)(B)(i); 34 C.F.R.

§ 300.122(a)(1).

17. 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.550.

18. 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R.

§ 300.125.

19. 20 U.S.C. § 1414(a)–(c); 34 C.F.R.

§§ 300.532–500.543.

20. 20 U.S.C. § 1414(a)(2); 34 C.F.R. § 300.536.

21. 20 U.S.C. § 1414(d)(2)(A), 34 C.F.R.

§ 300.342(a).

22. 34 C.F.R. § 300.343(b)(2).

23. 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R.

§ 300.344(a).

24. The importance of parental participation is underscored in detailed notice,

scheduling, and documentation of efforts

requirements. 34 C.F.R. § 300.345.

25. 20 U.S.C. § 1414(d)(1)(A)(vii); 34 C.F.R.

§ 300.347(b).

26. 20 U.S.C. § 1401(30); 34 C.F.R. § 300.29.

27. 20 U.S.C. § 1414(d)(3)(B); 34 C.F.R.

§ 300.346(a)(2).

28. 34 C.F.R. § 300.342(b)(ii), § 300.343(c).

29. 20 U.S.C. § 1401(25); 34 C.F.R. § 300.26

(a)(1).

30. 20 U.S.C. § 1401(25)(A)–(B); 34 C.F.R.

§ 300.24(a)(1)(i)–(ii).

31. 20 U.S.C. § 1401(22); 34 C.F.R. § 300.24.

32. 20 U.S.C. § 1415(b); 34 C.F.R.

§§ 300.501–300.512.

33. 20 U.S.C. § 1415(b)(2); 34 C.F.R. § 300.515.

34. 20 U.S.C. § 1415(m); 34 C.F.R. § 300.517;

see also Paul Y. v. Singletary, 979 F. Supp.

1422 (S.D. Fla. 1997).

35. 20 U.S.C. § 1415(e); 34 C.F.R. § 300.506.

36. 20 U.S.C. § 1415(f); 34 C.F.R. § 300.507.

37. 20 U.S.C. § 1415(h); 34 C.F.R. § 300.509.

38. 20 U.S.C. § 1415(g); 34 C.F.R. § 300.510.

39. 20 U.S.C. § 1415(i)(2); 34 C.F.R. § 300.512.

40. 20 U.S.C. § 1415(i)(3); 34 C.F.R. § 300.513.

41. 34 C.F.R. §§ 300.660–300.662. Apart from

the State complaint process pursuant to

IDEA, complaints may be filed with the

Office of Civil Rights, U.S. Department of

Education, for discrimination on the basis

of disability under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) or

title II of the Americans with Disabilities

Act (42 U.S.C. § 12101 et seq.).

42. 20 U.S.C. § 1415(j); 34 C.F.R. § 300.514.

43. 484 U.S. 305 (1988).

44. 484 U.S. at 323–324.

45. 20 U.S.C. § 1415(k)(1)(A); 34 C.F.R.

§ 300.520(a).
14

46. 20 U.S.C. § 1415(k)(10); 34 C.F.R.

§ 300.520(d).

47. 20 U.S.C. § 1415(k)(2); 34 C.F.R.

§ 300.521.

48. 34 C.F.R. § 300.519; see generally 20

U.S.C. § 1415(k)(1)(a).

49. 20 U.S.C. § 1415(k)(1)(B); 34 C.F.R.

§ 300.520(b).

50. 20 U.S.C. § 1412(a)(1)(A), § 1415(k)(3);

34 C.F.R. § 300.121(d), § 300.522.

51. 20 U.S.C. § 1415(k)(4); 34 C.F.R. § 300.523.

52. 20 U.S.C. § 1415(k)(5); 34 C.F.R. § 300.524.

53. 34 C.F.R. § 300.523(f).

54. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R.

§ 300.121(d).

55. 20 U.S.C. § 1415(k)(2), § 1415(k)(7); 34

C.F.R. § 300.525, § 300.526, § 300.528.

56. 20 U.S.C. § 1415(k)(8)(A); 34 C.F.R.

§ 300.527(a).

57. 20 U.S.C. § 1415(k)(8)(B); 34 C.F.R.

§ 300.527(b).

58. 20 U.S.C. § 1415(k)(9)(B); 34 C.F.R.

§ 300.529(a); see also Northside Independent School District (No. 106–SE–1297),

28 Individuals With Disabilities Education

Law Report (IDELR) 1118 (State Education

Agency Texas 1998); Smith v. Wheaton (No.

H–87–190 (TPS)), 29 IDELR 200 (D. Conn.

1998); Cabot School District (No. H–99–02),

29 IDELR 300 (Ark. 1998).

59. 20 U.S.C. § 1415(k)(9); 34 C.F.R.

§ 300.529(a).

60. Morgan v. Chris L., 25 IDELR 227

(6th Cir. 1996) (unpublished decision).

61. See, e.g., Flint Board of Education v.

Williams, 276 N.W.2d 499 (Mich. App. 1979)

(violation of school rules and regulations);

In re McCann, 17 Educ. for the Handicapped

L. Rep. [now the IDELR] 551 (Tenn. Ct.

App. 1990) (truancy and unruly behavior).

62. State of Wisconsin v. Trent N., 26 IDELR

434 (Wis. Ct. App. 1997); Cabot School District (No. H–99–02), 29 IDELR 300 (Ark. 1998).

63. Cabot School District (No. H–99–02),

29 IDELR 300 (Ark. 1998); State of Connecticut v. David F., 29 IDELR 376 (Conn. Super.

Ct. 1998).

64. In the Matter of Shelly M., 453 N.Y.S.2d

352 (1982); In re Ruffel, 18 IDELR 1171 (N.Y.

Fam. Ct. 1992).

65. See Dusky v. United States, 362 U.S. 402

(1960); Drope v. Missouri, 420 U.S. 162

(1975); see, e.g., In re Patrick H., 63 Cal.

Rptr. 2d 455 (Cal. Ct. App. 1997).

66. In re Winship, 397 U.S. 358, 368 (1970).

67. 384 U.S. 436 (1966). Miranda warnings

must precede any custodial interrogation.

Note that the U.S. Supreme Court will decide

in Dickerson v. United States, 120 S. Ct. 578

(mem.) (No. 99–5525) (review granted, Dec.

6, 1999), Fourth Circuit, U.S. Court of Appeals, No. 97–4750, 166 F.3d 667, whether

Miranda has been overruled in Federal

cases by a statute (18 U.S.C. § 3501) that

purports to restore voluntariness as the

test for admissibility.

68. See Fare v. Michael C., 442 U.S. 707, 725

(1979).

69. See Haley v. Ohio, 332 U.S. 596, 599

(1948); Reck v. Pate, 367 U.S. 433, 442 (1961);

see, e.g., In re J.J.C., 689 N.E.2d 1172 (Ill.

App. Ct. 1998), suppressing as involuntary

the confession of a youth with a history of

mental problems and learning disabilities.

70. Letter to Mr. George M. Galarza, Warden of California State Prison-Corcoran; 30

IDELR 50 (U.S. Department of Education,

Office of Special Education Programs, 1997).

71. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R.

§ 300.2(b)(iv).

72. 20 U.S.C. § 1412(a)(1)(B)(ii); 34 C.F.R.

§ 300.122(a)(2).

73. See, e.g., State of Connecticut-Unified

School District No. 1 v. State Department of

Education, 27 IDELR 3 (Conn. Super. Ct.

1997).

74. 20 U.S.C. § 1415(k)(9)(B); 34 C.F.R.

§ 300.529(b)(2).

75. 20 U.S.C. § 1414(b); 34 C.F.R. § 300.532.

76. 20 U.S.C. § 1414(c); 34 C.F.R. § 300.536.

77. 20 U.S.C. § 1414(d)(4); 34 C.F.R.

§ 300.346(b); Alexander S. v. Boyd, 876 F.

Supp. 773, 802 (D.S.C. 1995), affd. in part and

rev’d. in part on other grounds, 113 F.3d 1373

(4th Cir. 1997), cert. denied, 118 S. Ct. (1998).

78. 34 C.F.R. § 300.342(b)(ii).

79. See, e.g., CALIF. EDUC. CODE § 56325 (West

1998), requiring immediate provision of an

interim placement implementing the existing IEP to the extent possible within existing

resources, with review by the IEP team

within 30 days.

80. See, e.g., Boyd, 876 F. Supp. at 802.

81. 34 C.F.R. § 300.342(b)(ii). Different rules

apply to some juveniles in adult criminal

corrections facilities. See 34 C.F.R. § 300.122

(a)(2) concerning individuals ages 18

through 21 convicted as adults under

State law and housed in adult criminal

corrections facilities.

82. Smith v. Wheaton (No. H–87–190 (TPS)),

29 IDELR 200 (D. Conn. 1998).

83. 34 C.F.R. § 300.309.

84. 20 U.S.C. § 1412 (a)(5)(A); 34 C.F.R.

§ 300.550.

85. OCR Region IX, No. 09–91–1343–I (1992)

(unreported).

86. 29 U.S.C. § 794.

87. OCR Region IX, No. 09–91–1343–I (1992)

(unreported) (OCR found discrimination

against students with hearing impairments

in violation of section 504 in part because the

student handbook lacked such a statement).

88. See, e.g., Maine Department of Education,

17 IDELR 211 (State Education Agency,

Maine, 1990), but see 34 C.F.R. § 300.122(a)

(2) regarding individuals ages 18 through

21 convicted as adults under State law

and residing in adult criminal corrections

facilities.

89. 20 U.S.C. § 1415(b)(2); 34 C.F.R.

§ 300.515(c)(2), but see 34 C.F.R.

§ 300.517(a)(2) if State transfers rights

at the age of majority for all students.

90. 20 U.S.C. § 1414(d)(6)(B); 34 C.F.R.

§ 300.311(c).

91. 20 U.S.C. § 1412(a)(1)(B)(ii); 34 C.F.R.

§ 300.311(a).

92. 20 U.S.C. § 1414(d)(6)(A)(ii); 34 C.F.R.

§ 300.311(b)(2).

93. 20 U.S.C. § 1414(d)(6)(B); 34 C.F.R.

§ 300.311(c); see, e.g., New Hampshire Department of Education v. City of Manchester,

N.H. School District, 23 IDELR 1057 (D.N.H.

1996).

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Penalty for Private Use $300

Points of view or opinions expressed in this

document are those of the authors and do not

necessarily represent the official position or

policies of OJJDP or the U.S. Department of

Justice.

The Office of Juvenile Justice and Delinquency Prevention is a component of the Office of Justice Programs, which also includes

the Bureau of Justice Assistance, the Bureau

of Justice Statistics, the National Institute of

Justice, and the Office for Victims of Crime.

Acknowledgments

This Bulletin is dedicated to the memory of Loren Warboys, who passed away in

December 1999 after an extended struggle with leukemia. Early in his career,

Loren recognized the need for advocacy on behalf of youth with disabilities in the

juvenile justice system, and he worked for the next two decades to protect their

legal rights. As one of only a handful of nationally recognized legal experts in this

field, Loren was constantly involved in policy discussions over legislation and

regulations. He was counsel in a number of groundbreaking cases on behalf of

youth with disabilities in institutions and wrote many articles and training manuals

on the interplay between juvenile justice and special education. He also spent

countless hours consulting on these issues with families, educators, public

officials, and juvenile justice professionals. Loren’s unflagging compassion and

commitment have had a lasting effect in making the juvenile justice system more

attuned and better equipped to meet the needs of youth with disabilities.

Sue Burrell is a staff attorney and Loren Warboys was the managing director of

Youth Law Center, a San Francisco-based private, nonprofit law firm specializing

in protecting the rights of youth in juvenile justice and child welfare systems

throughout the Nation. The authors were guided in the preparation of this Bulletin

by the many ideas and experiences offered to them over the years by youth with

disabilities in the juvenile court process and juvenile institutions. The hope that

these youth may enjoy a bright future and reach their greatest potential has truly

inspired this work.

Renee Bradley, Ph.D., from the U.S. Department of Education’s Office of Special

Education Programs, contributed significantly to the review of this Bulletin to ensure

its relevance to both the education and juvenile justice communities.

Photograph page 3 copyright © 1995 PhotoDisc, Inc.; photograph page 4 copyright ©

1997 James Carroll c/o Artville; photograph page 9 copyright © 1997 PhotoDisc, Inc.