Special Education and Special Education and Disability Rights AdvocacyDisability Rights Advocacy

On Behalf of On Behalf of Clients in the Delinquency SystemClients in the Delinquency System

Barry Juvenile Justice CenterBarry Juvenile Justice Center

Adolescent Development TrainingAdolescent Development Training

Cocoa Beach, FloridaCocoa Beach, Florida

June 13, 2008June 13, 2008Joe TulmanJoe Tulman

Professor of LawProfessor of LawJTulman@udc.eduJTulman@udc.edu

REVERSING THE REVERSING THE SCHOOL-TO-PRISONSCHOOL-TO-PRISON

PIPELINEPIPELINE-or--or-

How to Put How to Put Monkey Wrenches into theMonkey Wrenches into theConveyor Belt of InjusticeConveyor Belt of Injustice

33

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 to Delinquency & Delinquency to CriminalNeglect to Delinquency & Delinquency to Criminal

Mental Health, Recreation, Drug Treatment, Vocational Rehab., Mental Health, Recreation, Drug Treatment, Vocational Rehab., and School System --and School System --

Ineffective in…Ineffective in… Stabilizing or Reunifying Families or Stabilizing Children in Stabilizing or Reunifying Families or Stabilizing Children in

PlacementsPlacements Addressing Deviant Conduct by ChildrenAddressing Deviant Conduct by Children Reducing Drugs, Violence, Illiteracy, Poverty, Recidivism, etc.Reducing Drugs, Violence, Illiteracy, Poverty, Recidivism, etc. Making Children ProductiveMaking Children Productive

44

Disability Disparity Disability Disparity (Delinquency)(Delinquency)

Child Mental Disabilities Prevalence Rates

15%

10%

14%

1.6%

35%

45% 46%

12%

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

SLD SED ADHD MR

General Population

Corrections

55

Disparity and Discrimination:Disparity and Discrimination:Arrest RatesArrest Rates

An estimatedAn estimated 18% of youth with MR, 18% of youth with MR, 31% of youth with LD, 31% of youth with LD,

andand 57 % of youth with SED 57 % of youth with SED

will be arrested will be arrested

within 5 years within 5 years

of leaving high school.of leaving high school.

66

Disparity and Discrimination:Disparity and Discrimination:Arrest RatesArrest Rates

Children with disabilities are 200% Children with disabilities are 200% more likely to be arrested than non-more likely to be arrested than non-disabled youth for comparable disabled youth for comparable delinquent activity.delinquent activity.

-- -- MacArthur FoundationMacArthur Foundation

77

Relationship Between Disabling Relationship Between Disabling Conditions and DelinquencyConditions and Delinquency

At trial stage, children with disabilities are At trial stage, children with disabilities are 220% more likely to be adjudicated than 220% more likely to be adjudicated than other children.other children.

At disposition, despite similar records of At disposition, despite similar records of prior offenses, the term of incarceration prior offenses, the term of incarceration and/or probation averaged 2-3 years and/or probation averaged 2-3 years longer for those with disabilities.longer for those with disabilities.

-- -- MacArthur FoundationMacArthur Foundation

88

Disparities, Discrimination, and Disparities, Discrimination, and Efficacy of Legal ChallengesEfficacy of Legal Challenges

Disparity Based on Disparity Based on RaceRace

Disparity Based on Disparity Based on ClassClass

Disparity Based on Disparity Based on DisabilityDisability

Efficacy of Legal Challenges…Efficacy of Legal Challenges…– Challenges Based on Race and Class, Not Particularly EffectiveChallenges Based on Race and Class, Not Particularly Effective– Advocacy Based on Disability Discrimination and Accommodation More Effective Advocacy Based on Disability Discrimination and Accommodation More Effective

Legally, Politically, Rhetorically, Psychologically, and Practically (For Solving Problems)Legally, Politically, Rhetorically, Psychologically, and Practically (For Solving Problems)

99

Effectiveness of Providing an Effectiveness of Providing an Appropriate Education Appropriate Education

Developmental Imperatives for Adolescents… Developmental Imperatives for Adolescents… – In School or On the StreetIn School or On the Street– We Know What Makes Children SuccessfulWe Know What Makes Children Successful

Evidence-Based PracticesEvidence-Based Practices– For Teaching Individuals For Teaching Individuals – For Diminishing Youth Violence (e.g., Surgeon For Diminishing Youth Violence (e.g., Surgeon

General’s Report on Youth Violence)General’s Report on Youth Violence)– CDC Findings on Kids in Adult PrisonsCDC Findings on Kids in Adult Prisons

Our Clients Have Unmet Needs and Our Clients Have Unmet Needs and Unrecognized RightsUnrecognized Rights

1010

The Double Reverse:The Double Reverse: Transforming Defendants Transforming Defendants

into Plaintiffsinto Plaintiffs

1111

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

Note: EHA, EAHCA, IDEA, IDEA 2004 or IDEIANote: EHA, EAHCA, IDEA, IDEA 2004 or IDEIA

1212

Other Relevant LawsOther Relevant Laws

Section 504 of the Rehabilitation Section 504 of the Rehabilitation ActAct

The Americans with Disabilities ActThe Americans with Disabilities Act Vocational Rehabilitation, Vocational Rehabilitation,

Homelessness & School Attendance; Homelessness & School Attendance; EPSDT; NCLBEPSDT; NCLB

1313

Civil Rights Bases of the IDEACivil Rights Bases of the IDEA

Segregation and ExclusionSegregation and Exclusion Brown v. Board Brown v. Board PARC PARC and and MillsMills Disciplinary Exclusions Disciplinary Exclusions

– The Law The Law Honig v. Doe Honig v. Doe & IDEA Protections& IDEA Protections

– The Reality The Reality Disparity of Exclusion Based Upon Race, Disparity of Exclusion Based Upon Race,

Gender, and DisabilityGender, and Disability

1414

Rights Under the IDEARights Under the IDEA School System – School System – Block Exclusion and Zero Tolerance Block 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

IncarcerationIncarceration

– Before, During, and After... Before, During, and After... Must EducateMust Educate

– Substitute Special Education for InstitutionalizationSubstitute Special Education for Institutionalization

1515

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

1616

Substantive and Procedural Rights Substantive and Procedural Rights Under the IDEAUnder the IDEA

HANDOUTHANDOUT

1717

Substantive and Procedural Rights Substantive and Procedural Rights Under the IDEIAUnder the IDEIA

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 FBAs/BIPs (Functional Behavioral FBAs/BIPs (Functional Behavioral

Assessments and Behavioral Intervention Assessments and Behavioral Intervention Plans)Plans)

1818

Substantive and Procedural Rights, Substantive and Procedural Rights, ContinuedContinued

Evaluation “in any area of suspected Evaluation “in any area of suspected disability”disability”– Psycho-educationalPsycho-educational– Clinical psychologicalClinical psychological– Speech/LanguageSpeech/Language– VocationalVocational– NeurologicalNeurological– Etc.Etc.

Independent EvaluationsIndependent Evaluations Initial, Triennial -- and More OftenInitial, Triennial -- and More Often

– Control by Defense AttorneyControl by Defense Attorney– Contrast with Criminal or Delinquency Contrast with Criminal or Delinquency

EvaluationsEvaluations

1919

Substantive and Procedural Rights, Substantive and Procedural Rights, ContinuedContinued

Child FindChild Find Parent’s – and Child’s – Right to Parent’s – and Child’s – Right to

ParticipateParticipate Right to School RecordsRight to School Records Stay PutStay Put Right to a Due Process, Right to a Due Process,

Administrative HearingAdministrative Hearing

2020

Substantive and Procedural Rights, Substantive and Procedural Rights, ContinuedContinued

Right to CounselRight to Counsel Right to ConfrontRight to Confront Right to Exclude EvidenceRight to Exclude Evidence Right to RecordRight to Record Burden of Proof (On Moving Party)Burden of Proof (On Moving Party) Right to Appeal, Bring Civil ActionRight to Appeal, Bring Civil Action

2121

Remedies Under the IDEARemedies Under the IDEA

Burlington Burlington and and CarterCarter 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))

2222

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

2323

Special Education Advocacy:Special Education Advocacy:Stages of a CaseStages of a Case

DUE PROCESS DUE PROCESS ADMINISTRATIVE ADMINISTRATIVE HEARING at any HEARING at any time for any time for any violation!violation!– Admin. Admin.

ExhaustionExhaustion Appeal to State Appeal to State

or Federal Courtor Federal Court

2424

Manual: Spec. Ed./DelinquencyManual: Spec. Ed./Delinquencywww.law.udc.eduwww.law.udc.edu

Juvenile and Special Education Law Clinic/PublicationsJuvenile and Special Education Law Clinic/Publications Chapters 1-3: Chapters 1-3:

Delinquency and Delinquency and Special Ed Special Ed StrategiesStrategies

Ch. 4: School Ch. 4: School Discipline, IDEADiscipline, IDEA

Ch. 5: Criminal Ch. 5: Criminal System, IDEASystem, IDEA

Ch. 6-13: Stages Ch. 6-13: Stages of Special Ed of Special Ed ProcessProcess

2525

Basic Spec Ed ApplicationBasic Spec Ed Applicationto Delinquency Caseto Delinquency Case

(1) List All the Services (Etc.) That a Child Needs(1) List All the Services (Etc.) That a Child Needs (2) Categorize Under Evaluations, Specialized Instruction, (2) Categorize Under Evaluations, Specialized Instruction,

“Related Services”, “Transitions Services”, and “FBA-BIP”“Related Services”, “Transitions Services”, and “FBA-BIP” (3) Justify as “Appropriate” Under the (3) Justify as “Appropriate” Under the Rowley Rowley StandardStandard (4) Compare with What is Available Within the Delinquency, (4) Compare with What is Available Within the Delinquency,

Criminal, or Neglect SystemCriminal, or Neglect System (5) Consider Advantages of Each System(5) Consider Advantages of Each System (6) Devise Negotiation/Litigation Strategy (with Focus on (6) Devise Negotiation/Litigation Strategy (with Focus on

Comp. Ed.)Comp. Ed.)

2626

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

Child WelfareChild Welfare– Who is the Parent?Who is the Parent?– Stage of the Case and Facts/FindingsStage of the Case and Facts/Findings

2727

Dispute Resolution Benefits:Dispute Resolution Benefits:Decision-Making ModelDecision-Making Model

DelinquencyDelinquency– Parent and ChildParent and Child– Child and JudgeChild and Judge

Child WelfareChild Welfare– StabilizingStabilizing– ReunifyingReunifying

2828

The Applicability of the ADAThe Applicability of the ADA

Percentage of Children in Delinquency Percentage of Children in Delinquency System Who Have DisabilitiesSystem Who Have Disabilities

Purposes & Provisions of the ADAPurposes & Provisions of the ADA– Non-DiscriminationNon-Discrimination– AccommodationAccommodation– Reduce InstitutionalizationReduce Institutionalization

Attorneys’ Fees (at Market Rate)Attorneys’ Fees (at Market Rate)

2929

Supreme Court CasesSupreme Court Cases YeskeyYeskey

– Applicability of ADA to PrisonersApplicability of ADA to Prisoners– Accommodation and Access to ServicesAccommodation and Access to Services

OlmsteadOlmstead– Least Restrictive EnvironmentLeast Restrictive Environment– DeinstitutionalizationDeinstitutionalization

LaneLane– Applicability of Title II of ADA, notwithstanding Applicability of Title II of ADA, notwithstanding Garrett v. Garrett v.

AlabamaAlabama, to Access to Courts and Fundamental Rights, to Access to Courts and Fundamental Rights Alexander v. ChoateAlexander v. Choate

– Disparate Impact – if a basis for challenge – Does not Necessarily Disparate Impact – if a basis for challenge – Does not Necessarily Equal DiscriminationEqual Discrimination

3030

ADA ApplicationsADA Applications

Accommodations on Probation, etc.Accommodations on Probation, etc.

Accommodations During ProceedingsAccommodations During Proceedings

Juxtaposing with Criminal ProcedureJuxtaposing with Criminal Procedure

Non-Discrimination Regarding Delinquency Non-Discrimination Regarding Delinquency and Criminal Prosecutionsand Criminal Prosecutions

[Article – In Materials][Article – In Materials]

3131

DISABILITYDISABILITYANDAND

DELINQUENCY DEFENSEDELINQUENCY DEFENSE

3232

The Path of a Delinquency CaseThe Path of a Delinquency Case Pre-IntakePre-Intake Intake and ProcessingIntake and Processing Initial Hearing and Initial Hearing and

Detention DecisionDetention Decision Investigation, Investigation,

Discovery, and Status Discovery, and Status HearingsHearings

MotionsMotions Trial (Factfinding)Trial (Factfinding) DispositionDisposition Post-DispositionPost-Disposition

3333

Pre-IntakePre-Intake

3434

Incidents at SchoolIncidents at School IDEA ProtectionsIDEA Protections Disciplinary HearingsDisciplinary Hearings

Goss v. Lopez Goss v. Lopez Discovery Opportunity (e.g., School Fight Case)Discovery Opportunity (e.g., School Fight Case) IEP & BIP Agreement Not to Go to Delinquency CourtIEP & BIP Agreement Not to Go to Delinquency Court T.L.O. + T.L.O. + Exclusionary Rule at SchoolExclusionary Rule at School Individualized Decision-Making (Not Zero Tolerance)Individualized Decision-Making (Not Zero Tolerance)

Manifestation Determination + Mens Rea; Manifestation Determination + Mens Rea; Culpability Culpability

Discriminatory Decision-MakingDiscriminatory Decision-Making Analogies to Double JeopardyAnalogies to Double Jeopardy

– Gun Case (L.F.)Gun Case (L.F.)

3535

Encounters with the PoliceEncounters with the Police

– Accommodations and Non-DiscriminationAccommodations and Non-Discrimination– Colorado v. Connelly Colorado v. Connelly Post-ADAPost-ADA– Moran v. Burbine Moran v. Burbine Post-ADAPost-ADA– Miranda v. Arizona + Miranda v. Arizona + Education-Related Education-Related

DisabilitiesDisabilities– Pre-Initial Hearing Release by PolicePre-Initial Hearing Release by Police– Police DiversionPolice Diversion

3636

IntakeIntakeandand

ProcessingProcessing

3737

Authority of Intake ProbationAuthority of Intake Probation

No Grand JuryNo Grand Jury Investigation Investigation

– FamilyFamily– School (Including Special School (Including Special

Education)Education) Pre-petition Pre-petition

“Recommendation”“Recommendation”– Appeal from Appeal from

RecommendationRecommendation– Victimless OffenseVictimless Offense

Pre-Initial Hearing ReleasePre-Initial Hearing Release

3838

Fairness of the ProcessFairness of the Process

Compare Families with Compare Families with Resources and Those Resources and Those WithoutWithout– Special Education Special Education

Services as Equivalent Services as Equivalent of Private Servicesof Private Services

Accommodations, Accommodations, During the Intake During the Intake Investigation Process, Investigation Process, for Parents (and for Parents (and Accused Children) Accused Children) with Disabilitieswith Disabilities

3939

Challenges to the DecisionsChallenges to the Decisions Need for Care and Rehabilitation? Need for Care and Rehabilitation?

– NO! Has or Can Get IDEA Services NO! Has or Can Get IDEA Services – Spec. Ed. as Diversion Spec. Ed. as Diversion – Delay Delinquency Case Pending Delay Delinquency Case Pending

Resolution of Spec. Ed. and School Resolution of Spec. Ed. and School Discipline Proceedings Discipline Proceedings

Non-Exercise of DiscretionNon-Exercise of Discretion Discriminatory Decision-MakingDiscriminatory Decision-Making

– Denial of DiversionDenial of Diversion– Failure to Recommend Against PetitionFailure to Recommend Against Petition– Chris L.Chris L. and Exhaustion and Exhaustion

Selective or Discriminatory Selective or Discriminatory ProsecutionProsecution

4040

Initial HearingInitial Hearingandand

Detention DecisionDetention Decision

4141

Lawyer-Client RelationshipLawyer-Client Relationship Relationship Between Defense Attorney and a Relationship Between Defense Attorney and a

Child with Disabilities Who is Accused of Child with Disabilities Who is Accused of Committing a Delinquency OffenseCommitting a Delinquency Offense

Accommodations? Training for Court-Accommodations? Training for Court-Appointed Attorneys?Appointed Attorneys?

Handling a Case vs. Representing a ClientHandling a Case vs. Representing a Client

4242

De-Contaminating DetentionDe-Contaminating Detention One-Way ValveOne-Way Valve

– Use RAI & Limit RAI OverridesUse RAI & Limit RAI Overrides– No Detention for Social No Detention for Social

Reasons (Incl. “danger to Reasons (Incl. “danger to self”)self”)

– End Reconsideration of End Reconsideration of Release and Contempt of Release and Contempt of Court; Use Continuum of Court; Use Continuum of Alternatives to DetentionAlternatives to Detention

– Use Interlocutory AppealUse Interlocutory Appeal

Requests for Requests for Accommodations into Accommodations into Release Programs and Release Programs and ServicesServices

Releasing the Releasing the DetainableDetainable– School (IDEA) Services School (IDEA) Services

as Alternative to as Alternative to DetentionDetention

– Plan Prior to New Case, Plan Prior to New Case, if Possibleif Possible

School Attendance as School Attendance as a Condition of Release a Condition of Release (Third-Party Contempt)(Third-Party Contempt)

4343

Special Education ServicesSpecial Education ServicesAs a Substitute for DetentionAs a Substitute for Detention

Use the Continuum of Care in Special Use the Continuum of Care in Special Education (Related Services Through Education (Related Services Through RTC)RTC)

Alternatives to Secure Detention as Alternatives to Secure Detention as AccommodationAccommodation

The Timing: Having Services Ready The Timing: Having Services Ready for Re-Arrest for Re-Arrest

4444

Investigation,Investigation,Discovery, andDiscovery, and

Status HearingsStatus Hearings

4545

Fact InvestigationFact Investigation

4646

DiscoveryDiscovery

Brady v. Maryland Brady v. Maryland Exculpatory or Mitigating Exculpatory or Mitigating

InformationInformation

Government Responsible Government Responsible for Information from Other for Information from Other

Public Agencies?Public Agencies?

4747

Status HearingsStatus 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

4848

MotionsMotions

4949

Motions to DismissMotions to Dismiss

Social Reasons (or Equivalent)Social Reasons (or Equivalent) Violation of Intake ProcessViolation of Intake Process Lack of JurisdictionLack of Jurisdiction

– Failure to Exhaust Special Education Failure to Exhaust Special Education Administrative ProcessAdministrative Process

– Morgan v. Chris L. Morgan v. Chris L. Change of PlacementChange of Placement– Truancy or Failure to Identify and Serve Child Truancy or Failure to Identify and Serve Child

(Child Find Violation and Denial of FAPE)(Child Find Violation and Denial of FAPE) Trial Accommodations (Discussed Later)Trial Accommodations (Discussed Later)

5050

Evaluations and CompetencyEvaluations and Competency

Motion for EvaluationsMotion for Evaluations– Special Education vs. DelinquencySpecial Education vs. Delinquency

Competency ChallengesCompetency Challenges

5151

Transfer MotionTransfer Motion

StandardStandard– Amenability to TreatmentAmenability to Treatment– OtherOther

Unclean HandsUnclean Hands Availability of ServicesAvailability of Services

5252

Competency and AccommodationCompetency and Accommodation

Accommodating an Accused Person Who Accommodating an Accused Person Who is Marginally Competent or Otherwise in is Marginally Competent or Otherwise in Need of AccommodationsNeed of Accommodations

Is Effective Participation the Relevant Is Effective Participation the Relevant Standard?Standard?– How Does It Compare to Due Process?How Does It Compare to Due Process?– What Accommodations Are Required?What Accommodations Are Required?– Analogies to Deafness (of Defendant)Analogies to Deafness (of Defendant)

5353

Suppressing StatementsSuppressing Statements Miranda Miranda and Other Waiversand Other Waivers

– Colorado v. ConnellyColorado v. Connelly– Expert witnesses on Reading and Auditory Expert witnesses on Reading and Auditory

ComprehensionComprehension Unreliability of Admission/Confession (Rules of Unreliability of Admission/Confession (Rules of

Evidence and Due Process)Evidence 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 ADA and Ethics: Affirmative Duty by Police and

Prosecutors and Judges?Prosecutors and Judges?

5454

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

Challenging Inferences from ConversationsChallenging Inferences from Conversations

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)

5555

Motions Regarding the TrialMotions Regarding the Trial

In LimineIn Limine – Accommodating Under the ADAAccommodating Under the ADA

GAL or Expert InterpreterGAL or Expert InterpreterChild’s Direct TestimonyChild’s Direct Testimony

– Change the Structure; Leading; Narrative; Change the Structure; Leading; Narrative; Manipulables; Time to Prepare Answers; Manipulables; Time to Prepare Answers; “Untimed” Answers; Assistance with Preparing “Untimed” Answers; Assistance with Preparing Answers?Answers?

Cross-Examination of the ChildCross-Examination of the Child– Repeat Prosecutor’s Questions in Own WordsRepeat Prosecutor’s Questions in Own Words– Neutral (Court-Appointed) Expert Work with Neutral (Court-Appointed) Expert Work with

Prosecutor; Prosecutor; In CameraIn Camera Inspection Inspection

5656

The TrialThe Trial(Factfinding Hearing)(Factfinding Hearing)

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 the Plea Bargain and the Need to and the Need to Accommodate in Accommodate in

the Rule 11 the Rule 11 ColloquyColloquy

(Challenges to Pleas)(Challenges to Pleas)

5858

The Child’s TestimonyThe Child’s Testimony

Decision to TestifyDecision to Testify

Accommodations Accommodations for Understanding for Understanding Proceedings and Proceedings and Assisting CounselAssisting Counsel

Accommodations Accommodations for Testifyingfor Testifying

5959

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

6060

DispositionDisposition(Sentencing)(Sentencing)

6161

Special Education ServicesSpecial Education ServicesAs 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– Extending IDEA Eligibility for Young People in Adult (Criminal) SystemExtending IDEA Eligibility for Young People in Adult (Criminal) System

Evaluation Before SentencingEvaluation Before Sentencing Compensatory EducationCompensatory Education Youth ActYouth Act

6262

A Right to Treatment?A Right to Treatment? Right to Appropriate TreatmentRight to Appropriate Treatment

– Treatment (Rather than Incarceration) as Treatment (Rather than Incarceration) as Accommodation and as Best Interest of ChildAccommodation and as Best Interest of Child

– Right to Services, Programs, or Placement – If Right to Services, Programs, or Placement – If Reasonable Accommodations PossibleReasonable Accommodations Possible

– Failure to Treat as DiscriminationFailure to Treat as Discrimination Mount an A.D.A. Challenge to Diagnostic Mount an A.D.A. Challenge to Diagnostic

Probation Officer or Judge’s Ignoring Probation Officer or Judge’s Ignoring Child’s Needs (Including IEP) at Disposition Child’s Needs (Including IEP) at Disposition – Refusal to Recommend or to Order ProbationRefusal to Recommend or to Order Probation

6363

Post-DispositionPost-Disposition

6464

Changing Institutional Changing Institutional Expectations and StandardsExpectations and Standards

Re-Frame and Litigate Re-Frame and Litigate Treatment Standard Treatment Standard Applicable to Juvenile Applicable to Juvenile Incarceration FacilityIncarceration Facility– Mental Health Treatment Mental Health Treatment

= Adult Prison Standard?= Adult Prison Standard?– Witnesses Re. FBA & BIP, Witnesses Re. FBA & BIP,

etc.etc.

Train and Enlist Juvenile Train and Enlist Juvenile Prison Personnel to Prison Personnel to Help with IEP’sHelp with IEP’s

6565

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)

6666

Probation or Parole RevocationProbation or Parole Revocation

Protect and Defend Against Protect and Defend Against RevocationRevocation– Request for Accommodation; Request for Accommodation;

Failure to Accommodate (e.g., Failure to Accommodate (e.g., PO Trained to Communicate)PO Trained to Communicate)

Third-Party ContemptThird-Party Contempt– School System’s Unlawful School System’s Unlawful

Exclusion of Child or Failure to Exclusion of Child or Failure to Provide FAPE Precludes Child’s Provide FAPE Precludes Child’s Compliance with School Compliance with School Attendance or Related Attendance or Related Condition of Probation or ParoleCondition of Probation or Parole

6767

Strategy: Case ExamplesStrategy: Case Examples

Categories of CasesCategories of Cases– Deep-End CriminalDeep-End Criminal– Not-so-Serious CriminalNot-so-Serious Criminal– Serious DelinquencySerious Delinquency– Not-so-Serious DelinquencyNot-so-Serious Delinquency– PreventivePreventive

6868

CriminalCriminal

Deep-EndDeep-End– Darren C.Darren C.– Manny P.Manny P.– Dale G.Dale G.– Antonio H.Antonio H.

Not-so-SeriousNot-so-Serious– James H.James H.

6969

DelinquencyDelinquency

Deep-End or Not-so-Serious?Deep-End or Not-so-Serious?– Tyrone H.Tyrone H.– Marcus J.Marcus J.– Tiffany M.Tiffany M.

7070

PreventivePreventive

The O. ChildrenThe O. Children The D. ChildrenThe D. Children

7171

Advancing New Legal ChallengesAdvancing New Legal Challenges

* * * * * * * ** * * * * * * *

Re-Shaping or Transforming Re-Shaping or Transforming The SystemThe System

7272

Extending IDEA EligibilityExtending IDEA Eligibility

Compensatory EducationCompensatory Education Individual Cases/ExamplesIndividual Cases/Examples Vocational Training and Vocational Training and

Burlington/CarterBurlington/Carter

7373

LitigationLitigation

Disparate ImpactDisparate Impact– Rates of Prosecuting or Detaining Rates of Prosecuting or Detaining

Young People with DisabilitiesYoung People with Disabilities– Rates of Referring for Prosecution (from Rates of Referring for Prosecution (from

Schools) Students with DisabilitiesSchools) Students with Disabilities– Rates of Transferring to Adult Court Rates of Transferring to Adult Court

Children with DisabilitiesChildren with Disabilities– Disparate Length of Sentences and Disparate Length of Sentences and

Times Actually IncarceratedTimes Actually Incarcerated

7474

LitigationLitigation

TreatmentTreatment– Failure to Provide Treatment in LRE Failure to Provide Treatment in LRE

Under Under Olmstead Olmstead and Delinquency and Delinquency “Treatment” and LRE Precepts“Treatment” and LRE Precepts

– Failure in Juvenile and Adult Detention Failure in Juvenile and Adult Detention and Long-Term Incarceration Facilities and Long-Term Incarceration Facilities to Provide FAPE (Including Related to Provide FAPE (Including Related Services and Transition Services) Services and Transition Services)

7575

TrainingTraining

Training of Probation and Training of Probation and Aftercare WorkersAftercare Workers

Training of Mental Health, Training of Mental Health, Teachers, and “Counselors” at Teachers, and “Counselors” at Juvenile Incarceration FacilityJuvenile Incarceration Facility

Training of JudgesTraining of Judges

7676

Mobilizing & Organizing:Mobilizing & Organizing:Swinging the Pendulum BACKSwinging the Pendulum BACK

Caseload Levels; Zero Tolerance; Kids Caseload Levels; Zero Tolerance; Kids as Adultsas Adults

Special Education StrategySpecial Education Strategy– Case Aggregation and Mobilizing; Lots of Case Aggregation and Mobilizing; Lots of

Due Process HearingsDue Process Hearings– Expanded Budget, Poorly Allocated; Expanded Budget, Poorly Allocated;

Studies; Emerging Consensus?Studies; Emerging Consensus?

7777

More LitigationMore Litigation

Reversing the Caseload CrisisReversing the Caseload Crisis New Class Action and Impact CasesNew Class Action and Impact Cases

– PettiesPetties– Blackman-JonesBlackman-Jones– Jerry M.Jerry M.

7878

Need for Services vs. DetentionNeed for Services vs. Detention Dumping from School; Mental Health; Child Dumping from School; Mental Health; Child

Welfare Systems into DelinquencyWelfare Systems into Delinquency Separate Social Factors from Dangerousness Separate Social Factors from Dangerousness

and Risk of Non-Appearanceand Risk of Non-Appearance Risk Assessment & Mental Health Risk Assessment & Mental Health

(Needs/Strengths) Screening(Needs/Strengths) Screening Integrating the System of Care Integrating the System of Care Medicaid Medicaid

ImplicationsImplications

7979

Integrating the System of CareIntegrating the System of Care

Reversing the “Path of Least Reversing the “Path of Least Resistance”Resistance”– Agency Silos and Financial/Budgeting Agency Silos and Financial/Budgeting

DisincentivesDisincentives– Treatment Disincentives (Pushing Out Treatment Disincentives (Pushing Out

the “Difficult” Child)the “Difficult” Child)– Medicaid FundingMedicaid Funding

Wraparound-Diversion Wraparound-Diversion Closing InstitutionsClosing Institutions