Incarcerated Students & Special Ed Law- PartIV: Can a Student Be Too Bad for FAPE? #IncarcetatedStudents

OK as the weekly question that accompanies our series on students who have had a brush with the criminal law asks- can a child be too bad for FAPE?

There is a little cited provision of the special education law.  Concerning children with disabilities who are convicted as adults under state law and incarcerated in adult prisons, there are exemption concerning participation in general assessments and transition planning/services,  {§614(d)(7)(A), and 34 CFR §300.324(d)(1)}  and least restrictive environment {34 CFR §300.324(d)(2)(ii)}. Also the law provides that the IEP team may modify the IEP or placement of such a child if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.  {§614(d)(7)(B), and 34 CFR §300.324(d)(2)(i)}.

So this doesn't come up much. I have had many due process hearings and mediations and a few state complaint investigations, and I haven't seen one of these cases. I did serve as a hearing officer for one student who was in jail, but the case involved his schooling in the previous school year. I also had a hearing involving a student in a juvenile center, but the issue once again involved the previous school year. 

In 2013, however, I came across an interesting hearing officer decision. The hearing officer ruled that an incarcerated student was such a serious security/safety risk that he was not entitled to FAPE under IDEA, citing §614(d)(7)(A)& (B), and 34 CFR §300.324(D)}. State Correctional Institution Pine Grove (BF) 113 LRP 32792 (SEA Penna 5/1/2013). OK so there it is - a ruling that a child is too bad for FAPE.

Of course, the decision was appealed to court. More on that next week.

So your reaction? Can a child be too bad for FAPE? Your thoughts? 

Breaking: Department of Education Announces New Tools to Support Reentry For Recently Incarcerated Youth #IncarceratedStudents

Alright, how cool are we? As you know we are currently running a series on the newest hot button issue in special education law: incarcerated students. This story goes under the category of I told you so!

Yesterday the Department of Education, in conjunction with the Department of Justice, issued a series of resources pertaining to improving outcomes for students who have been incarcerated. The resources include $5.7 million in new research grants and a new toolkit providing guidance to teachers and others who work with formerly incarcerated students. The reentry education toolkit is available here. The press release may be reviewed here.

Here is a quote from the press release:

"The toolkit announced today aligns with the Education Department’s effort to promote access to correctional education and reentry services for those leaving the criminal justice system, and thereby build stronger, safer communities and families. The toolkit provides resources for educators and community members and highlights the five critical components of an effective reentry system: program infrastructure, strategic partnerships, education services, transition processes, and sustainability.

Children of incarcerated parents are at greater risk of health and behavior issues in school, among other challenges. Research shows that more than 5 million children have had at least one parent in prison at one point in their lives. The prevalence of incarceration, particularly in low-income communities of color, has negative consequences for both those incarcerated and their families. In addition, children of incarcerated parents face more economic and residential instability than their counterparts.

A 2013 federal study of people released from state prisons found that 94 percent of incarcerated adults who were nearing reentry identified education as a key need. Equipping incarcerated youth and adults with the skills they need to successfully reenter the community is one of the most powerful – and cost-effective – ways to ensure they avoid future contact with the justice system and become productive members of society."

So our series on incarcerated students is certainly timely, right?

Weekly Question!

Can a child be too bad for FAPE? See our ongoing series of posts on this blog. #IncarceratedStudents

How Much Does Your School District Spend Per Pupil? #SchoolFunding #poverty

Spending more money per student does not necessarily mean a better education, It is however an indicator of a better education. It also says a lot about the priorities of a community.

National Public Radio is running a fascinating series on school funding. The link below leads to the article as well as an interactive map where you can look up how much your district spends per pupil as compared to other districts locally to nationally. The article and map may be found here.

Here are some quotes from the series:

"Since the early 1970s, nearly every state has seen at least one lawsuit over how it pays for schools and whether the result is fair or adequate.  Of the many funding lawsuits that have played out in the nation's courts, one stands out: San Antonio Independent School District v. Rodriguez.  The suit, which made it to the U.S. Supreme Court, struck at the heart of the nation's school-funding system....The plaintiffs argued that any school-funding system that depends on local property tax revenue is fundamentally unfair to poorer districts. Specifically, the suit claimed, the way we pay for our schools violates the U.S. Constitution's equal protection clause, which says that no state shall 'deny to any person within its jurisdiction the equal protection of the laws.' ... In a split 5-4 decision, the Supreme Court ruled against Rodriguez, saying there is no right to equal funding in education under the U.S. Constitution. Not that the system is fair or balanced — just that the federal government has no obligation to make it so. In his forceful dissent, Justice Thurgood Marshall wrote, 'I cannot accept such an emasculation of the Equal Protection Clause in the context of this case.' "

So what do you think of this story? Have you looked up your school district on the interactive map?

Breaking: CDC Releases New Package For Prevention of Child Abuse & Neglect #ChildAbuse

The Centers for Disease Control yesterday released a new document in its series of technical packages on violence prevention. The package is called "Preventing Child Abuse and Neglect: A Technical Package for Policy, Norm and Programmatic Activities." 

The report notes, among many other things, that children with special needs, especially those with developmental and intellectual disabilities, have risk factors associated with victimization. If you work with such children, you should check out this resource. The package is a useful tool for combating child abuse and neglect.

You can view the CDC's violence prevention page here. You can read the 52 page policy package on child abuse and neglect here.

Weekly Question!

Can a child be too bad for FAPE? See our ongoing series of posts on this blog. #IncarceratedStudents

Sometimes My Job Is Pretty Cool #WhereIsJG?

Incarcerated Students and Special Ed Law- Part III #IncarceratedStudents

Incarcerated students is one of the hottest issues in special education law. There has been a lot of recent activity concerning the special education rights of students who have had a brush with the criminal law- being arrested or accused of a crime; spending time in juvenile hall or even being incarcerated.

One question involves whether the school district has any duty to evaluate a student who returns from juvenile hall. Does that trigger a child find duty? If the student is already on an IEP, does the team need to meet and discuss the student's needs?

In Meridian Joint Sch Dist No. 2 v. DA ex rel MA 792 F.3d 1054, 65 IDELR 253 (Ninth Cir. 7/6/15), the Ninth Circuit affirmed  hearing officer  and lower court finding that parents were entitled to an independent educational evaluation at public expense due to SD failure to evaluate the student after his release from a juvenile facility.

So what do you think. Should a trip to juvenile hall require an evaluation? When is the child find duty triggered? Is a brush with the law something that an IEP team should watch carefully?

Breaking: New GAO Report Finds Most States Don't Require Disability Needs in Emergency Plans #emergency

The Government Accountability Office issued a report on Monday concerning the plans that schools prepare in the event of an emergency situation, such as a weather disaster or a school shooting. In 2013, the federal departments of Education, Homeland Security, Justice, the Federal Emergency Management Agency and Health and Human Services prepared a Guide For Developing High Quality Emergency Operations. You can review the Guide here. The GAO study found that better inter-agency cooperation is needed in implementing the Guide.

One finding by the GAO was that only twenty-one states require districts to account for the needs of students and staff with disabilities in developing these emergency plans. Fewer than half the states have this requirement. This would seem to be a significant omission.

You can read the GAO study here. A summary of the highlights of the report is also available.

Does your school district's plan account for the needs of persons with disabilities?

Weekly Question!

Can a child be too bad for FAPE? See our ongoing series of posts on this blog. #IncarceratedStudents

Homeless Children Have Rights Under IDEA #homeless

There were approximately 89,000 homeless students in the United States during the 2013-2014 school year. Some are runaways. Some have fled abuse in their homes. Some have been kicked out because of their sexual orientation. The number of homeless students is both big and sad.

Homeless children have rights under the Individuals With Disabilities Education Act. Our friends at the National Association of State Directors of Special Education in conjunction with National Association for the Education of Homeless Children and Youth have published an informative article on this topic entitled  "Surrogate Parents and Unaccompanied Homeless Youth Under IDEA." If you are interested in this topic or if you encounter a special education issue involving a homeless youth, this article is very useful. You can read the article here.

Incarcerated Students and Special Ed Law- Part II #IncarceratedStudents

As we mentioned in our previous post in this series, there is a lot of activity recently on the issue of the special education rights of students who have a brush with the criminal justice system- being arrested or accused of a crime; spending time in juvenile hall; or even being incarcerated. This is clearly the emerging hot button issue. This is part two of the series.

The Office of Special Education and Rehabilitative Services confronted this issue in December of 2014 by issuing a Dear Colleague Letter that summarized the problem and called for action.  This was preceded in 2014 by letters from the Department and OCR. Here is a summary of the guidance from the agencies:

Dear Colleague Letter 64 IDELR 249 (OSERS 12/5/14) OSERS issued guidance on the IDEA rights of children with disabilities who are incarcerated.  The guidance spells out the responsibilities of state departments of education, school districts and other LEAs, correctional facilities and non-educational agencies in providing child find, identification, evaluation, FAPE, least restrictive environment, discipline protections and the other provisions of IDEA.  Here is a quote from the letter: "Students with disabilities represent a large portion of students in correctional facilities, and it appears that not all students with disabilities are receiving the special education and related services to which they are entitled. National reports document that approximately one third of students in juvenile correctional facilities were receiving special education services, ranging from 9 percent to 78 percent across jurisdictions.   States reported that in 2012–2013, of the 5,823,844 students with disabilities, ages 6 through 21, served under IDEA, Part B, 16,157 received special education and related services in correctional facilities.  Evidence suggests that proper identification of students with disabilities and the quality of education services offered to students in these settings is often inadequate. Challenges such as overcrowding, frequent transfers in and out of facilities, lack of qualified teachers, inability to address gaps in students’ education, and lack of collaboration with the LEA contribute to the problem. Providing the students with disabilities in these facilities the free appropriate public education (FAPE) to which they are entitled under the IDEA should facilitate their successful reentry into the school, community, and home, and enable them to ultimately lead successful adult lives."  You can read the twenty-one page Dear Colleague letter here.  The guidance was a part of a larger package, consisting of four guidance documents, of materials on the topic of educating incarcerated youth jointly issued by the federal departments of Education and Justice.  You can review the entire package here; See, Letter to Chief State School Officers 114 LRP 26961 (US DOE 6/9/14) The Department noted that incarcerated students, many of whom have disabilities should be provided supports to ensure that they meet educational goals and avoid recidivism.  Steps to address school to prison pipeline; and Dear Colleague Letter 64 IDELR 284 (OCR 12/8/14) OCR noted that more than 60,000 young people are in juvenile justice residential facilities and reminded that these students are entitled to equal educational opportunity including: access to coursework; services for ELLs; §504 FAPE; fair administration of discipline; freedom from harassment; effective communication for students with hearing, speech or vision disabilities; and LRE concerns.

What are your thoughts about this guidance from the feds?

Weekly Question!

Can a child be too bad for FAPE? See upcoming series of posts on this blog. #IncarceratedStudents