Spotlight On: IDEA, ADA and Section 504 of the Rehabilitation Act: Prosecutors and Schools in Federal Court

by Caren Harp1

Introduction

It is important to identify higher risk youth in order to make the most effective placement decisions. There is currently no scientifically validated system or test to determine exactly which adolescent sex offenders pose a high risk for recidivism. Mental health professionals and treatment staff typically overestimate the possibility of recidivism in evaluations, labeling far more teenagers as high risk than is actually accurate.16 In predicting risk to the community, it is usually appropriate to assume that an adolescent sex offender is relatively low risk unless there is significant evidence to suggest otherwise. Low risk does not imply the absence of risk, and low-risk offenders still need supervision and treatment. The following factors are important to consider in evaluating risk:

Successful juvenile justice systems are founded on trust and cooperation among agencies involved with at risk youth. Unfortunately, when criminal behavior occurs on school campuses, federal legislation advancing the education rights of youth with disabilities can sometimes put cooperative partners at odds and send regrettable messages to youth. Schools reporting criminal behavior to law enforcement, or filing affidavits for petitions to juvenile court, can find themselves forced, under threat of litigation or even court order,2 to take all steps necessary to terminate juvenile court action.

The litigation is grounded in federal civil rights acts insuring the right to a free and public education to all children with disabilities.3 In an effort to stem the tide of schools expelling kids and using the justice system to address the behavior problems of disabled youth, these acts require schools to provide special educational and behavioral services to youth with disabilities, and to provide due process procedures before making changes in a disabled child’s education plan.4

What some defense attorneys and child advocates call “behavioral manifestations of a disability,” however, others would properly call criminal conduct. With ever increasing numbers of school children diagnosed with Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, or Conduct Disorder,5 all of which fit the definition of disability under one or more of these acts,6 some prosecutors are facing defense assertions that the crimes many juveniles commit on campus are “behavioral manifestations” of their disabilities; therefore, schools should be foreclosed from seeking juvenile court intervention, and prosecution is inappropriate. Some prosecutors have had juvenile court cases removed to federal court. A prosecutor in the state of Washington was sued in federal court for alleged violations of these acts.7

The Legislation

While the ultimate effect of these challenges on the resolution of cases has been minimal, the delays and complex litigation can be troublesome and time consuming. Prosecutors need to be familiar with the following legislation8:

• The Individuals with Disabilities Education Act (IDEA) 20 USCS 1400 with regulations for implementation found at 34 CFR 300. Basically, the IDEA provides for special education and related services to youth with disabilities. It maintains that children with disabilities are entitled to a “free and public education”(FAPE); that they must have Individual Education Plans (IEPs) established; and that no change in IEP can take place without due process. Juvenile court prosecution has been determined to be a proposed “change” in IEP triggering due process rights.9
  
  
• Section 504 of the Rehabilitation Act of 1973 (Section 504) 29 USCS 794 with regulations for implementation at 34 CFR part 104. Section 504 prohibits recipients of federal funds from discriminating on the basis of disability. Section 504 has a broader definition of disability than the IDEA, and is more akin to the definition of disability found in the ADA.10 Again, no change in the education plan of a child with a disability can take place without a due process or “manifestation” hearing.11
  
  
• The Americans with Disabilities Act, Title II (ADA) 42 USCS 12131. The ADA prohibits disability-based discrimination in state and local services regardless of whether federal funds are involved. While the ADA and Rehabilitation Act definitions may be similar, ADA is less frequently cited in this arena because the regulations implementing Section 504 are more specific.

The Problem

Education rights challenges present numerous problems for prosecutors.

First, prosecutors must respond to pleadings in federal court. Most juvenile court prosecutors lack the time or resources to research these issues and respond effectively in an unfamiliar venue. To the extent that they face being defendants themselves for alleged violations of civil rights legislation,12 the problem multiplies.

Second, the delays caused by federal court litigation in resolving the juvenile court case can be quite lengthy, doing disservice to victims and potentially weakening the state’s case.

Third, school officials and prosecutors—ideally, two collegial partners in juvenile court—are at odds when schools face protracted litigation initiated by the defense for violations of a student’s education rights unless the school can persuade the prosecutor to dismiss the delinquency case against the student. If the victim of the criminal behavior is the school, prosecutors may be willing to defer to school officials’ requests. If the case involves a person crime, the prosecutor’s concern for public safety and victim issues will likely override the school’s preference to see the case dismissed.

The Response

While some of these cases eventually resolve themselves, some do not. For those that don’t, prosecutors are not without recourse. The following are possible responses for prosecutors facing challenges under these education rights acts.

In 1997, Congress amended the IDEA to include language about reporting criminal behavior by disabled youth. Found at 20 USCS 1415(k)(9)(A), the “Referral To and Action By Law Enforcement and Judicial Authorities” provision states that nothing in the IDEA should be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.13 Prosecutors should argue that this provision ends the discussion. However, unresolved questions about what constitutes “reporting” or “appropriate authorities,” and qualifying language in the legislative history providing that referrals to police and appropriate authorities should not circumvent the school’s responsibilities under IDEA,14 may allow the litigation to continue.

When cases are removed to federal court, prosecutors should consider arguing the abstention doctrine as set out in Younger v. Harris.15 In Younger, the United States Supreme Court held that federal courts should abstain from hearing cases “when there is an ongoing state judicial proceeding which implicates important state interests, and when that proceeding affords an adequate opportunity to raise the federal questions presented.”16

Victim rights are established in virtually every state. This act cannot interfere with a citizen’s right to bring charges, regardless of whether the perpetrator was considered disabled for purposes of this federal act.

Finally, since these civil rights acts are designed to insure inclusion and full participation in society, some prosecutors have advanced the argument that it is improper to deny a child with a disability full participation in the juvenile court system and its resources simply on the basis of his/her disability.

Conclusion

Although the education rights acts were originally intended to protect and assist children with disabilities, litigation tactics by some child advocates and defense attorneys may subvert their original purpose and disserve juvenile offenders. Many of these cases involve property damage or physical assault. Labeling juveniles with a disability, then asserting that they are not responsible for injurious conduct because it is a product or manifestation of a disability, is not a healthy message to send to children. It gives them no insight into how their behavior affects others, teaches them no skills to manage their “disability,” and fails to protect others who come into contact with them. Without teaching children that there are consequences for hurtful and destructive behavior, and that they have an affirmative duty not to hurt others, these tactics lay the foundation for an adulthood littered with criminal conduct and an intractable sense of entitlement. In these cases, as in all juvenile cases, it seems that balanced consideration of community safety, offender accountability and skill development that helps offenders live productive, crime-free lives is a preferred approach to assisting children with disabilities while promoting their full participation in society.17

1 Senior Attorney, APRI

2 Morgan v. Chris L., affirmed without published opinion, 106 F. 3d 401 (6th Circuit 1997); full text of 6th Circuit opinion reported at 1997 U.S. App. Lexis 1041

3 Id.

4 If the “behavioral manifestation” involves a gun, dangerous weapon or drug violations, immediate alternative placements or other administrative actions are permissible. The language addressing these exceptions is found at 20 USCS 1415(k).

5 Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder and the others are found in the Diagnostic Statistical Manual IV.

6 20 USCS 1401(3)(a); See also Brooks, Kim, et al; The Special Needs of Youth in the Juvenile Justice System: Implications for Effective Practice; Children’s Law Center; Covington, KY.

7 Contact APRI for a copy of the documents.

8 Another federal act that can cause conflicts between schools and prosecutors is the Federal Educational Rights and Privacy Act (FERPA) 20 U.S.C.1232(g) Some defense attorneys or child advocates may threaten schools with federal litigation for releasing school records to prosecutors. Prosecutors should be familiar with FERPA, the limitations imposed on information sharing and procedural mechanisms available to obtain necessary information.

9 Chris L.; supra.

10 See Bragdon v. Sidney Abbott, et al, 524 U.S.624; 118 S Ct 2196; 141 L.Ed 2d 540 (1998).

11 Brooks, supra.

12 See Alsbrook v. City of Maumelle, et. al 184 F 3d 999; 1999 U.S. App. LEXIS 16945 (1999) for discussion of Circuits’ holdings regarding extension of Title II of the ADA to the states and the exercise of Congress’s power under Section 5 of the Fourteenth Amendment.

13 Brooks, supra.

14 Id.

15 Younger v. Harris, 401 US 37 (1971); Fuller v. Ulland, 76 F 3d 957 (8th Cir. 1996) citing Middlesex County Ethics Comm. V. Garden State Bar Assoc., 457 U.S. 4d23 (1982).

16 Id.

17 For information about balanced consideration of community safety, offender accountability and competency development as a philosophy for all juvenile court cases, contact APRI.