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?
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