“Fundamentally, a Child with serious or chronic delinquent behavior predictably has experienced consistent school failure and stagnant school achievement from an early point in elementary school.”1 This article looks at the parallel goals of the delinquency system and special education and how they can converge to help children become productive members of the community. How can and should the court and school systems work together to at least help youth stay out of delinquency proceedings, and to thrive at best?
Parallel Goals The Illinois Juvenile Court Act. The Illinois Juvenile Court Act (“JCA”)2 is intended to, among other things, equip juvenile offenders with competencies to live responsibly and productively3 and to “provide an individualized assessment of each alleged and adjudicated juvenile, in order to rehabilitate and to prevent further delinquent behavior through the development of competency in the juvenile offender.”4 “Competency” means the development of educational, vocational, social, emotional and basic life skills which enable a minor to mature into a productive member of society.5
Article V, Part 3 of the JCA contains various immediate intervention procedures. These include formal and informal station adjustments, probation adjustment, and community mediation programs.6 Conditions of formal and informal station adjustments include school attendance.7 Even the community mediation panel may require school attendance.8 Only when a probation adjustment is deemed appropriate does the JCA address a referral to a special education program.9 A minor’s educational status is among the factors considered when deciding whether a minor will be released or remain in custody.10 Attendance at school can also be a pre-trial condition.11
At each stage, education and school attendance are mentioned. Yet, only the parents or school personnel12 have any enforceable authority for referrals for evaluations under Individuals with Disabilities Education Improvement Act (“IDEA”).13 Without educational support, the goal of getting the child back to school can be just a pipe dream – and end up feeding the school to prison pipeline.
The Individuals with Disabilities Education Improvement Act. Identifying children with disabilities is the responsibility of every school district under the “child find” provisions14 of the Individuals with Disabilities Education Improvement Act15 and the accompanying regulations.16 Not all children with disabilities are eligible for special education services. However, a child who has been identified, evaluated and found eligible for special education is entitled to interventions to help him or her learn and to certain protections in school disciplinary matters, each of which may be able to prevent the child’s departure from the educational system altogether.
A child who is struggling in school should be referred for an evaluation. A teacher can refer the child, as can the child’s parents or certain other adults acting as the child’s parents or guardians.17 With the consent of the parents,18 the child will be evaluated in the area in which he or she struggles and other domains determined to be relevant by the child’s educational team, which includes the parents. To be eligible, a child must have a disability by reason of which he or she needs special education.19 The next step is to determine whether, as a result of the disability, that child needs special education and related services.20 Once found eligible, this is the starting point for the child to receive special education services.
Under the IDEA, education is not just about academics. IDEA envisions that children with disabilities also get assistance with social-emotional skills and life skills. A child who demonstrates a need should have a behavioral intervention plan as part of his or her individualized education program (“IEP”). School personnel should implement the behavioral intervention plan in their interactions with the child with the goal of helping the child manage his or her behavior.
With an IEP come certain disciplinary “protections” for the child.21 Children with disabilities that make them eligible for special education and related services cannot be suspended for more than 10 days in the aggregate in a school year without receiving the services as provided in the child’s IEP.22 More than 10 days is considered a “change in placement” under IDEA which requires a meeting of the IEP team (which includes the parents) before such change can be effected.23 There must be a “manifestation determination hearing” within 10 days of the act to determine if the behavior was a manifestation of the child’s disability.24 If so, the record of the suspension must be expunged from the child’s record. There is an exception if the act involved weapons, drugs or caused serious bodily injury.25
In such a case, the child may be moved to an interim alternative educational setting for up to 45 days.26 Expulsion can only take place with the school board’s approval.27 In Goss v. Lopez,28 the U.S. Supreme Court held that a student has a property
interest in attending school which cannot be taken away without minimal due process: notice and an opportunity to present his or her side of the story.
Analysis and Action. Kids need help and support before they ever touch the delinquency system. The competencies that the JCA envisions should be developed well before the youth is court-involved. Given that a large percentage of court-involved youth have learning disabilities, those competencies should have been developed in the school systems, with its parallel goals, through an IEP. Children start in the school system and should be spending a great deal of their youth there – six hours a day for 12 to 13 years. If they have failed in the school system, we need to ask why.
“ [P]roperly designed and implemented regular and special education programs can reduce the incidence of antisocial behavior. Furthermore, early preventative behavioral interventions may also reduce the need for special education referrals and placements. Successful interventions teach and reward acceptable behavior, instead of relying on punishment or other aversive discipline. Research also indicates that a school’s atmosphere and discipline strategies can contribute to violent behavior. More specifically, traditional approaches to discipline, both by schools and by the corrections systems, are the least effective at reducing antisocial behavior and may even increase the likelihood of delinquency. In this era of draconian
penalties for juvenile offenders and “zero tolerance” school discipline policies, corrections and education practitioners may wish to evaluate their programs in light of this research.”29
For children with disabilities, schools are intended to educate the whole child: academically, socially and emotionally through special education and such related services as the child requires, to independent living through life skills and transition planning.
What needs to change and how to do it. Framing the issue in economic terms, as a policy matter, can have an impact. This issue is not just about spending more on education. It is not just about spending more and more on policing juveniles. It is about investing in the next generation and ending the poverty that results from a lack of education. It means recognizing that it takes less money to educate youth to become productive than to prosecute and incarcerate them. “ The link between learning disabilities and juvenile delinquency has been investigated more extensively than the relationship between juvenile delinquency and any other categorical labels (Robinson & Rapport, 1999). In fact the National Center for Learning Disabilities (1996/1997) reports that when juvenile delinquents were tested for learning disabilities 50% met the criteria. Tragically, their learning disabilities had not been previously identified and therefore support services were not implemented to promote early academic, social and emotional success. However, when special education services were provided, the recidivism rate for the LD delinquents dropped to less than 2%.”30
Parents, foster parents, guardians, CASA’s and social workers need information on getting educational help for children through outreach programs. School resource officers, police officers, probation officers, public defenders, state’s attorneys all need basic training in recognizing learning disabilities and special education law. The intake assessment form currently used in Cook County’s juvenile probation office does not assess a child’s educational needs.31 “When confronted with a school-aged offender with a disability, many attorneys and educators are understandably confused. This area of law is difficult, chiefly because it draws from multiple sources: federal and state constitutional law; federal and state special education law; other federal education law, such as FERPA; federal disability anti-discrimination law; and state and federal juvenile and criminal law.”32
If personnel in the delinquency system were trained to recognize the kind of behavior noted above and learned to reframe their observations of behaviors certain children exhibit, the experience of many children in the delinquency system might be far different.
“ Attributes of learning disabilities that may predispose youth to engage in delinquent behaviors include immature social skills, excessive dependency on others, misinterpretation of social situations, deficits in problem solving skills, impulsivity, inability to focus attention, deficits in memory and reliance on an external locus of control to explain their successes and failures (Lerner, 2003). Furthermore, Osher (1999) notes, that the attributes of learning disabilities may be the behaviors that trigger misunderstanding and even abuse of youth with learning disabilities by staff in juvenile facilities. Therefore, training of judicial staff, judges, juvenile and parole officers is critical in order to break the cycle of behaviors that get youth with learning disabilities in difficulty with the law (Ross-Kidder, 2002). Early identification of learning disabilities, coupled with special education and staff training will lessen crime rates and recidivism for this population.”33
The behaviors exhibited by some of these children are difficult to view as a manifestation of a disability without training.
Truly, unless and until one is able to reframe the behavior, it will certainly seem as though some of these children are acting willfully and should be locked up.
Currently, the education and delinquency systems run parallel and judges and schools have concurrent jurisdiction. The schools, however, are able to “refer” youth to the delinquency system through arrests for behavior. Judges don’t have the same referral authority. Under IDEA, where a child is a ward of the state, the child welfare agency or a judge may refer a child for an initial evaluation by the school if: “(aa) despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child; (bb) the rights of the parents of the child have been terminated in accordance with State law; or (cc) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.”34
A child outside these parameters cannot be referred by a judge because “a juvenile court does not have the authority to order special education or determine whether a child is eligible for special education under the IDEA.”35
“The situation is truly ironic. The argument for retaining ungovernable and truancy jurisdiction by the juvenile court is that juvenile courts have to act in such cases because ‘if we don’t act, no one else will.’ I submit that precisely the opposite is the case: because the courts act in the way they do, no one else does.”36 Arrests at school for behavior of a child who is frustrated by failure puts the delinquency system in the position of a place of last and final resort.
Schools need to be accountable for educating youth so that they don’t become part of the delinquency system. Once the child comes under the jurisdiction of the court, judges should have the authority to be able to require such an accounting from the school about the child’s progress – and to call school personnel to appear and answer to the judge. In the meantime, a judge might defer sentencing.
“ The case of In re Shelly M. is an excellent example of a child’s special education needs affecting the course of juvenile court proceedings. In this case, a New York juvenile court judge referred Shelly, a habitually truant juvenile, to her school district for assessment. After the assessment revealed that Shelly was entitled to special education, the court deferred Shelly’s sentence on condition that she attend an appropriate educational placement.”37
An outcome such as this requires an understanding of the rights, responsibilities, and obligations of special education law, as well as a willingness on the part of the delinquency system personnel to see such a child as a worthy individual. A strong advocate for the child would surely help as well.
Conclusion. There is too much of a connection between children with disabilities, children who need but have not been identified for special education services, and children in the delinquency system for these systems to run parallel.
Full federal funding to the states under IDEA must be an appropriation not a mere authorization. Schools perform one of the most important functions in our society: educating the next generation. However, dropping the recidivism rate to two percent would save a great deal of money that would otherwise be spent prosecuting youth, giving those children a chance to be contributors to the economy.
Even better, imagine an attitude shift in which each system views each child as valuable and unique. Imagine if everyone who touched the child’s life recognized his or her accountability for that child’s experience with that person. In addition to holding the child accountable for his actions – so far as the child is capable, what if we recognized that many of these children have been failed by those who should have cared for them? What if each of us took responsibility for seeing every child reach his or her potential? Or, for a start, just to graduate from high school with a regular diploma. It takes a village.
1. Eileen L. Ordover and Joseph B. Tulman, Chapter Four: School Discipline and Students with Disabilities, in Special Education Advocacy Under the Individuals with Disabilities Education Act (IDEA) for Children in the Juvenile Delinquency System, Joseph B. Tulman and Joyce A. McGee, eds., (1998) at 4-2.
2. 705 ILCS 405/5-100, et seq.
3. 705 ILCS 405/5-101(1).
4. 705 ILCS 405/5-101(1)(c).
6. See 705 ILCS 405/5-300, et seq.
7. 705 ILCS 405/5-301(1)(e)(iv) and 705 ILCS 405/5-301(2)(d)(iii)(a).
8. 705 ILCS 405/5-310(4)(f).
9. 705 ILCS 405/5-305(5)(d).
10. 705 ILCS 405/5-405(4)(d).
11. 705 ILCS 405/5-505(1)(e).
12. School personnel may refer a student for evaluation, however, parental consent is required before testing and evaluations can proceed unless the school files for and prevails at a due process hearing.
13. Except where the child is a ward of the state. See 20 U.S.C.A. § 1414(a)(1)(D)(iii)(II).
14. 20 U.S.C.A. §1412(3)(A).
15. 20 U.S.C.A. §1400, et seq.
16. See 34 C.F.R. §300.111, 300.130-144 (child find provisions).
17. 20 U.S.C.A. §1414(a)(1)(B).
18. If the parents do not consent, the school district can file for a due process hearing. If the school prevails, the independent hearing officer can direct that the child be evaluated.
19. 20 U.S.C.A. §1401(3)(A).
20. 20 U.S.C.A. §1401(3)(A)(ii).
21. See 20 U.S.C.A. § 1415(k) and 34 C.F.R. §300.530.
22. 20 U.S.C.A. § 1415(k)(C)-(D) and 34 C.F.R. §300.530.
23. See 34 C.F.R. §300.536.
24. See 34 C.F.R. §300.530(e).
25. See 20 U.S.C.A. §1415(k)(1)(E).
26. 20 U.S.C.A. §1415(k)(1)(G).
27. See 34 C.F.R. §300.530(e)(2).
28. 419 U.S. 565 (1975).
29. Thomas A. Mayes, Perry A. Zirkel, The Intersections of Juvenile Law, Criminal Law, and Special Education Law, 4 U.C. Davis J. Juv. L. & Pol’y 125, 156-57 (2000).
30. Linda Bigby, Della Heidbrink Luaders, Linda Koehler, Ann Powell-Brown, A Look at the Total Child in the Juvenile Justice System, 2004 J. Inst. Just. Int’l Stud. 47, 48 (2004).
31. Noted in roundtable discussion with Joseph B. Tulman held at Roosevelt University’s Mansfield Institute on April 1, 2013.
32. Thomas A. Mayes, Perry A. Zirkel, The Intersections of Juvenile Law, Criminal Law, and Special Education Law, 4 U.C. Davis J. Juv. L. & Pol’y 25, 156-58 (2000).
33. Linda Bigby, Della Heidbrink Luaders, Linda Koehler, Ann Powell-Brown, A Look at the Total Child in the Juvenile Justice System, 2004 J. Inst. Just. Int’l Stud. 47, 48 (2004).
34. 20 U.S.C.A. § 1414(a)(1)(D)(iii)(II).
35. Thomas A. Mayes, Perry A. Zirkel, The Intersections of Juvenile Law, Criminal Law, and Special Education Law, 4 U.C. Davis J. Juv. L. & Pol’y 125, 147-48 (2000).
36. James Bell, Prepared Opening Remarks, 6 Nw. J. L. & Soc. Pol’y 279, 283 (2011).
37. Thomas A. Mayes, Perry A. Zirkel, The Intersections of Juvenile Law, Criminal Law, and Special Education Law, 4 U.C. Davis J. Juv. L. & Pol’y 125, 134 (2000).
Janet Wagner is a partner at Latimer LeVay Fyock LLC representing clients, including not-for-profits, in business transactions. Janet earned her J.D. in 2000 and an LL.M. in 2014 in Child and Family Law from Loyola University Chicago School of Law, and received a B.A. cum laude in Philosophy from Mundelein College.