Disability Rights Consortium: Improving Educational Outcomes for Court-Involved Youth with Disabilities

1. Disability Rights Consortium: Improving Educational Outcomes for Court-Involved Youth with Disabilities February 26, 2014

2. Today’s speakers • Rachel Shapiro, Staff Attorney at Equip for Equality • Aimee Rodriguez, Equal Justice Works Fellow at Equip for Equality • Rick Tekip, Cook County Juvenile Court Probation Officer, Advocacy Division

3. Stopping the School to Prison Pipeline: Examples • A kindergarten boy with ADHD is arrested after a meltdown where he tore down classmates’ work from the wall • A high school boy with autism is arrested after telling a girl, who did not share his affection, that she was pretty • A ten-year-old boy with mental illness is arrested and expelled from his charter school after disrupting the classroom “too many times”

4. Stopping the School to Prison Pipeline • A lot of children with disabilities become involved with juvenile court due to an incident that occurred at school • In 2009 and 2010 alone, police made 11,225 school-based arrests in Chicago. • More than ever, schools are contacting law enforcement as a response to student behavior

5. Is school discipline a problem for students with disabilities? • Although students with disabilities represented 12% of the school population, they represented 21% of students who were expelled from CPS (2009-2010 Office of Civil Rights Data) • Male students with disabilities suspended one or more times (OCR): • African-American – 72.5% • Latino – 28.7% • Caucasian – 19.5%

6. Is school discipline a problem for students with disabilities? • Female students with disabilities suspended one or more times (OCR): • African-American – 43.5% • Latino – 14.4% • Caucasian – 9.3%

7. Is arrest a problem for students with mental health disabilities? According to MacArthur Foundation’s Models for Change research: • More than 600,000 youth are placed in juvenile detention centers annually, and about 95,000 youth reside in secure juvenile correctional facilities on any day. (2010, DOJ) • Youth in the juvenile justice system experience mental health disorders at a rate that is >3x higher than that of the general youth population. (2010, J Am Academy Child Adolescent Psychiatry) • 65%-70% of youth in contact with the juvenile justice system have a diagnosable mental health disorder, and almost 30% of youth have serious disorders that require immediate significant treatment. (2006, Nat’l Center for Mental Health and Juvenile Justice) • 93% of youth in detention reported exposure to “adverse” events that include accidents, serious illnesses, abuse, and violence. (2010, OJJDP)

8. Is arrest a problem for students with mental health disabilities? According to MacArthur Foundation’s Models for Change research: • “Many of these youth are unnecessarily placed in or referred to the juvenile justice system for relatively minor, non-violent offenses, often in a misguided attempt to obtain treatment services that are lacking in the community.” (2007, Nat’l Ctr.forMental Health & Juvenile Justice) • “However, the unfortunate irony of this approach is that the mental health services typically available to youth in the juvenile justice system are often inadequate or simply unavailable, as documented by a series of investigations conducted by the U.S. Department of Justice.” (2011, DOJ)

9. Equip for Equality’s Juvenile Justice Project • Provide free legal representation to children with unmet special education needs involved in the Cook County Juvenile Court system • Work with special education students involved in court system who are currently not in school and need to be enrolled

10. Equip for Equality’s Juvenile Justice Project • Work with students in the court system whose schools are not implementing their Individualized Education Program (IEP) to get schools to implement the required services • Work with these students to improve IEPs that are not appropriate • Help students in court system find appropriate special education placements

11. Equip for Equality’s Juvenile Justice Project • Provide legal representation to students at IEP meetings, mediations, due process hearings, expulsion hearings • Provide trainings to public defenders, probation officers, and other interested parties who come into contact with children with disabilities involved in court system • Fact sheets on special education law

12. Equip for Equality’s Juvenile Justice Project • Work closely with the probation department, court-appointed therapists, and court-provided mentors to ensure student’s success at school.

13. Equip for Equality’s Diversion Project How is different than the Juvenile Justice Project? • While EFE’s Juvenile Justice Project already successfully works to increase educational opportunities and protect the rights of court-involved youth with disabilities, due to lack of resources, it focuses on obtaining relief for youth alreadyinvolved in the court system and not on youth who have been diverted fromjuvenile court.

14. Equip for Equality’s Diversion Project • Represent Cook County Juvenile Court diverted youth with disabilities to address their educational needs in order to prevent school exclusion, increase academic achievement, and decrease recidivism. • Target direct representation on special education matters to youth who have minimal court involvementthrough a court diversion program, butwho are at-risk of greater involvement without the appropriate educational interventions.

15. Equip for Equality’s Diversion Project • Interveneat the critical early juncture when youth are diverted from court, to ensure that court-diverted youth receive necessary educational support to remain in school and avoid recidivism. • Outreach through bilingual and biculturallegal services that maximize the impact on Spanish-speaking households that often face additional language and cultural barriers in enforcing the educational rights of students with disabilities.

16. Cultural Issues Working with Latino and Immigrant Families • Language barriersdo not allow some Latino and immigrant parents to fully understand the meaning of their children’s IEP meetings and documents. • There is a lack of awareness among non-English speaking parents of students with disabilities that they have a right to translators at IEP meetings, and that they also have the right to communicate with their child’s school in their native language. • Even when a translator is provided, the translator is often a staff member pulled out of his or her routine work. Often, the translator is not trained in translation and is not familiar with special education terms. • Non-English speaking parents are sometimes asked to sign forms at IEP meetings that are provided only in English without a verbal explanation in their native language, and this has led to some non-English speaking parents unknowingly waiving important rights.

17. Cultural Issues Working with Latino and Immigrant Families • Legal and cultural barrierslead to some Latino and immigrant parents not wanting to challenge school staff and administrators regarding their children’s special education needs. • Legal: In some Latino and immigrant families, where the parents and/or their children are undocumented, there is a lack of awareness that any child present in the U.S. has a right to a K-12 education and to appropriate special education services if he or she has a disability. As a result, some of these parents live in fear of voicing their concerns and of making requests to schools in order to ensure their children with disabilities receive a free and appropriate public education. • Cultural: A deep culture of high regard for school officials in Latin America can make some Latino parents feel as if they are being disrespectful if they voice their concerns to schools.

18. Special Education Laws Individuals with Disabilities Education Improvement Act 2004 (IDEA) Section 504 Americans with Disabilities Act Family Educational Rights and Privacy Act (FERPA) State Laws and Regulations Illinois Student Records Act (ISRA) Illinois School Code Illinois Administrative Code 226 18

19. Common Problems and Possible Legal Solutions 19

20. Overuse of In School Suspension • Students with disabilities can be suspended no more than ten consecutive school days for a violation of the school code or ten cumulative days in a school year for behavior that constitutes a pattern. • In-school suspensions (ISS) count towards the ten day limit on suspensions, unless the student is receiving his/her special education services while participating in ISS. • Many court-involved students with disabilities consistently receive ISS.

21. Possible Solutions • Parents should request detailed information on what the child is doing during the ISS • If ISS is a glorified study hall, parents can request an IEP meeting to discuss the inappropriate use of ISS and the need to draft an appropriate behavioral intervention plan

22. John • John, a thirteen-year-old student with ADHD, was given approximately 30 days of ISS during the first semester of his 7th grade year. During ISS, he often put his head down and slept or completed word searches. • The school called the police on John multiple times and he was placed on probation for two years. • EFE requested an IEP meeting to discuss John’s behavioral concerns at school and the school’s inappropriate response to John’s behavior. • The school conducted a functional behavioral assessment and drafted an appropriate behavioral intervention plan. • John’s behavior dramatically improved.

23. Overuse of Serious Bodily Injury Exception • If a student commits “serious bodily injury”, he/she can be automatically removed to an interim alternative educational setting (IAES) for 45 school days. • “Serious Bodily Injury” - 18 U.S.C. §1365(h)(3) (a) a substantial risk of death; (b) extreme physical pain; (c) protracted and obvious disfigurement; and (d) protracted loss or impairment of the function of a bodily member, organ, or mental function.

24. Possible Solutions • Parent and student should ask detailed questions about what happened to the injured party • Negotiation to stop the 45 day placement • File for an expedited due process hearing (hearing takes place within 20 school days of filing)

25. Jennifer • Jennifer is a fourteen-year-old student with bipolar disorder who gets into a fight with a classmate. The police are called and Jennifer is arrested and receives two years of probation. The classmate has a few cuts and bruises from the fight. Jennifer’s school refers her to a IAES for 45 school days for causing “serious bodily injury.” • EFE drafted a demand letter to the school stating that Jennifer did not commit “serious bodily injury” and cannot be referred for a 45 school day placement. The school allowed Jennifer to remain at her public school and drafted a new BIP to address her physical aggression.

26. Refusing re-enrollment in school • If a student with a disability is detained and then released from custody, schools will often tell the student that he cannot re-enroll and should enroll in an alternative school. • The student should not feel pressured to enroll in an alternative school. Alternative schools are schools of choice. The only time that a student can be forced to enroll in an alternative school (or else the student would have to remain at home) is if the student is expelled or the student has committed serious bodily injury, brought a weapon to school or a school function, or brought drugs to school or a school function and therefore receives a 45 school day placement in an IAES.

27. Possible Solutions • Parent should request reasoning in writing for why the student is not being permitted to re-enroll. • If principal is refusing enrollment, the parent should ask to have the case manager participate in the meeting.

28. Eric • Eric is a sixteen-year-old student with ADHD and depression. Eric has a 504 plan and the school is currently evaluating him to determine whether he needs an IEP. • Eric was involved in a behavioral incident at school in April of 2013 and has a court case related to this incident. Eric is mandated to attend school as part of probation. Eric was not expelled, but due to safety issues, both Eric and the school agreed he could not return to his school. • The school insisted that Eric attend an alternative school, but Eric wanted to enroll in a regular public high school. Eric’s mother sent dozens of emails over the course of eight months to multiple supervisory personnel in Eric’s school district but nobody provided Eric with a placement other than an alternative school, which could not meet his educational needs. The principal and case manager at Eric’s school stopped returning the parent’s emails and calls. • EFE began representing Eric in December of 2013 and within five days, the district offered Eric another regular public school placement in the neighborhood. The district is now continuing its evaluation and EFE will attend an Eligibility and IEP meeting on Eric’s behalf.

29. Lack of Appropriate Transition Planning • High schools are often very focused on the discipline issues at school for court-involved youth with disabilities and rarely focus on appropriate transition planning • Students 14.5 and older in Illinois must have a transition plan as part of their IEP

30. Possible Solutions • Parents should request that the school conduct objective assessments to determine the types of careers/independent living/post secondary education program that may be appropriate for their children with disabilities • Parents can make a referral or ask the school to refer the student to the Department of Rehabilitation Services (https://www.dhs.state.il.us/page.aspx?item=29736) • If the school says that transition planning is not important because the student has many behavioral issues, the parents should point out that a transition plan is a required part of the IEP • Oftentimes student behavior will improve when a student is working towards appropriate transition goals

31. Mary • Mary is a seventeen-year-old high school student with a mild intellectual disability and mental illness. Mary did not understand any of her academic work, had a completely inappropriate transition plan, and often was suspended for acting out in class. • The school called the police on Mary and she was arrested for a verbal altercation with the security guard. • EFE attended multiple IEP meetings on Mary’s behalf. The District conducted a thorough transition and vocational assessment of Mary, among other evaluations. The District drafted a detailed IEP, including an appropriate transition plan, with Mary’s input. Mary’s behavior radically improved because she was very interested in working to meet her transition goals.

32. Child Find • Duty to locate, identify and evaluate students with disabilities • Child does not need to be failing and may be advancing grade to grade • Includes social-emotional as well as academic concerns • Court-involved youth with disabilities often are experiencing behavioral issues at school and the school has a duty to evaluate them

33. Possible Solutions • Parents should always make a request for an evaluation in writing and should include consent in this letter (EFE has a template parents can use) • If school has violated its child find duty and is trying to expel the student, the parent can use the special education violation as a reason to secure dismissal of the expulsion proceeding • Parent can request compensatory education as a remedy for the delay in evaluation

34. Juan • EFE is currently representing a teenage student with severe behavioral issues who has been expelled from three different schools in less than two years and who is currently on probation. • Despite a history of academic failure and repeated behavioral concerns, the District has not evaluated the student. • EFE drafted a demand letter requesting an immediate school placement for the student, a case study evaluation, and an appropriate IEP. We are awaiting the District’s response and will consider filing for due process if the District refuses our requests.

35. Illegal Send Homes • Parents often get called from the school to “come pick up” a child with a disability due to a behavior incident • These absences are often marked as “unexcused absences” and are not marked as suspension days • This matters because a school has a limit on suspension days and if days are marked as unexcused absences and not suspension days, then procedural safeguards of IDEA limiting suspension do not kick into place

36. Possible Solutions • Parent should always request incident report if a student is sent home due to a behavioral issue • Parent should ask whether student is suspended. If the student is not suspended, parent should indicate that she will not pick the student up • Parent can request IEP meeting to discuss behavioral incidents and to draft appropriate Behavioral Intervention Plan (BIP)

37. Lucas • 16yo in 10th grade with an emotional disorder, learning disability, and intermittent explosive disorder. The student had been involved in multiple fights, arrests, and psychiatric hospitalizations. • Mother and student reported that the student was often sent home following discipline incidents at school without any paperwork to document the discipline incidents or in/out-of school suspensions. • EFE advised parent to always request documentation on why the student was sent home early (i.e. illness, suspension, or truancy). • EFE also helped secure additional special education evaluations for the student and attended multiple IEP meetings to create a new appropriate IEP with a revised Behavioral Intervention Plan (BIP) to meet his behavioral needs. EFE also secured a new school placement where the student could could participate in a multisensory program to help him learn to read.

38. Referral to Court for Minor Incidents • Many school districts will call the police and have students arrested for minor offenses, such as stealing a cell phone or “appearing high” at school • Students are oftentimes placed on probation for these minor incidents, which could be more appropriately addressed in the school setting

39. Possible Solutions • EFE is pursuing opportunities to train court personnel on how schools can more appropriately address behavioral concerns within the school setting and the questions court personnel should ask school administrators when they are referring cases to juvenile court • If a student is repeatedly engaging in a pattern of behavior, the parent can request an IEP meeting to draft an appropriate IEP and Behavioral Intervention Plan (BIP)

40. Andy • 15yo with disability was accused of stealing phone from another student, and his mom was called. During the phone call, the school told Andy’s mom that it would file charges against Andy with the police. • Mom then told the school she had found the phone at home and was on her way to bring it to school. But while she was on her way, the security guards threatened to hurt Andy for having stolen the phone. This resulted in a fight between Andy and the security guards, and Andy was arrested. • EFE is now investigating Andy’s student records to determine if the student’s IEP requires a revision, and if so, what revisions are necessary to meet his special education needs.

41. Lack of Disability Awareness on Behalf of School Security Guards • School security guards/resource officers often interact extensively with students with disabilities, particularly court-involved students with disabilities • Many times students with disabilities will be referred to juvenile court for verbal or physical altercations involving school security guards

42. Possible Solutions • Parent should request an IEP meeting to discuss concerns about interactions with security guards and resultant referrals to juvenile court. • Parent can request that the Behavioral Intervention Plan (BIP) be updated to address these interactions. If appropriate, parent can request that a paraprofessional accompany the student in hallways to avoid interactions with school security guards. • As a result of an EFE case at a large CPS high school during the 2012-2013 school year, all security guards at the high school, as well as other staff members, were required to attend a training on the rights of students with disabilities.

43. Alan • 19yo student with a disability was targeted by high school security guards and told that they would get him kicked out of school. • Beginning in 9th grade, the student was arrested for using a paper clip to defend himself from 2 other students. After a placement at an alternative school, he returned to his original high school, where he experienced harassment and threats from the security guards. Eventually, another incident with security guards got Alan arrested for assault during his senior year. Alan told us that his parent had to pay a cash bond to avoid his detention and that he was offered a year of probation for the school-related incident. • EFE reviewed records regarding the discipline incidents and advised family on how to ensure Alan’s graduation during his last semester by informing them of their right to: (1) request missing student records regarding the discipline incidents and (2) request an IEP meetingto review Alan’s BIP in light of the discipline incidents. • Under EFE’s advice, the parent and student also worked cooperatively with the guidance counselor to prevent future behavioral incidents and to ensure he had enough credits to graduate.