JUDICIAL NOTEBOOK

Pending laws could strip away IDEA protections

Evvie Becker, PhD
University of Connecticut

The Individuals with Disabilities Education Act (IDEA) requires that schools provide services for children with special needs, including emotional and behavioral disabilities. But because of two bills passed this summer and now in conference committee, the law is facing significant challenges.

HR 1501, The Consequences for Juvenile Offenders Act and S. 254, The Violent and Repeat Offenders Accountability and Rehabilitation Act of 1999 contain amendments that allow schools to suspend or expel special-needs students for weapons offenses--even when the offending behavior is disability-related, such as, for example, a learning disability.

The bills could completely suspend all educational services to these students in cases where state laws allow the cessation of educational services for nondisabled students under the same circumstances. Such students would lose the right to a "free, appropriate public education."

Before this legislation, special-needs students could be removed from school for weapons-related offenses only after relationship of the offense to the disability was determined. If related, the student could be removed for no more than 45 days, at which time educational staff and parents would meet to decide further action. Many professionals fear that barring these students from school will only worsen the students' and society's problems.

The history of IDEA

The legislative and judicial history of IDEA reflects the clash of two paradigms operating 100 years after creation of the juvenile court system. One paradigm reflects the original intent of the juvenile system: to treat children as developmentally different, more malleable and amendable to correction, than adults. From this paradigm, intervention, treatment and rehabilitation flow as a natural course of action.

The conflicting paradigm returns us to the 19th century by discounting differences between youth and adults, holding youth equal to adults in accountability, and supporting punishment as the most appropriate means of correction. Despite years of psychological research showing the ineffectiveness of punishment in changing behavior, the latter paradigm continues to be promoted and supported.

Two years ago, a decision in Morgan v. Chris L. (25 IDELR 227; 6th Cir. 1997) suggested schools could not prosecute students covered by IDEA unless certain safeguarding procedures (e.g., assessments by multidisciplinary teams) were followed to determine whether delinquent behavior resulted from the disability. Because delinquency may often be viewed as a manifestation of behavioral and emotional disorders, IDEA provided a potential means to rehabilitative, therapeutic solutions, rather than punitive ones.

Since Chris L., IDEA protections have been seriously eroded by a combination of legislative and judicial actions. IDEA amendments passed in 1997 allowed school authorities to report delinquent children and youth with disabilities to "appropriate authorities," as long as special education and disciplinary records were also sent to these authorities [20 U.S.C. 1415 (k) (9)].

The amendments clearly indicated IDEA did not preclude prosecution of delinquency through the legal system. Key cases thus far have upheld the prosecution of juveniles despite identified disabilities. In Wisconsin, the state court rejected the argument that juvenile prosecution was a means for schools to evade responsibility. The court noted that the juvenile-court system has mechanisms to investigate and address complaints against schools [(State of Wisconsin v. Trent N., 26 IDELR 434 (Wis. Ct. App. 1997)].

Last year, a federal court in Connecticut rejected a student's claim that delinquency proceedings constituted a change of placement in violation of IDEA law [State of Connecticut v. David F., 29 IDELR 376 (D. Conn. 1998)]. The court concluded, similar to Trent N., that the student had recourse to pursue a complaint if school authorities failed to follow procedures.

On the other hand, in another Connecticut ruling last year (see April Monitor), the federal court extended IDEA to juvenile detention facilities, saying these facilities must provide a broad array of services [Smith v. Wheaton, 29 IDELR 200 (D. Conn. 1998)]. Meanwhile, in Texas, a hearing officer upheld a parent's claim that the school district violated IDEA law by failing to transmit copies of the students' records to authorities within a "reasonable period," defined as "no later than the 10th consecutive school day following the child's detention...." [Northside Independent School District, 28 IDELR 1118 (Tex. SEA 1998)].

Psychologists' roles

Psychologists concerned for the welfare of youth must work to educate the public and lawmakers about child development, about the benefits of therapeutic, rehabilitative behavioral interventions and about the relative ineffectiveness of punitive approaches. Denying educational services to our most troubled youth will only exacerbate existing problems and increase the violence and chaos in our society.



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