Special Education Law and Delinquent Children: An Overview

Article excerpt

At a time when more police are working in schools and student misconduct is the subject of rising fear and punitive response, it is increasingly apparent that children will be brought into juvenile court for behavior that occurs in school. While administrators who file charges against their students are intent on ridding their schools of weapons, drugs and violence, it is important to remember that the schools remain an integral component of any successful intervention in the life of a delinquent child. In other words, while schools are often the reason that many young people are brought to court, schools also provide the means for children to get back out. For no population of students is this more true than those with learning and other disabilities.

This article provides some information about students with disabilities. It discusses their prevalence within the juvenile justice system, outlines the law that governs the services they receive from pubic schools, and points out some areas of concern that lawyers, judges, court personnel, and mental health professionals should keep in mind.

LEARNING DISABILITIES AMONG JUVENILE OFFENDERS

Studies confirm the relationship between learning disabilities and delinquency. A recent study conducted by the Virginia Department of Juvenile Justice demonstrated the high incidence of special education eligibility among incarcerated juveniles (McGarvey & Waite, 2000). Specifically, the study found that more than 40% of the children evaluated at the Reception and Diagnostic Center were eligible to receive special education services. This compares to the approximately 10% incidence in the general population. The study also found that approximately 50% of the children in the facility scored at least six years below their chronological age on language achievement scores.

While this study does not prove that learning disabilities cause delinquent behavior, other studies have demonstrated that children with disabilities are more likely than their non-disabled peers to engage in delinquent or criminal behavior. According to a Department of Education Study, approximately one-third of children with disabilities will be arrested within three to five years of graduating from high school. Of these, more than fifty percent of those labeled as emotionally disturbed will be arrested.

What these and other studies indicate is that it is worth paying special attention to this population of children. Juvenile justice professionals need to learn about how the law provides special assistance to children with disabilities, and also to be mindful of the ways in which the law and the juvenile justice system tend to overlook the unique needs and problems of these children.

SPECIAL EDUCATION LAW

This section will briefly discuss the background and structure governing special education law, and then focus on three primary aspects of special education: (1) eligibility; (2) programming; and (3) discipline.

Background and Structure

The educational rights of children with disabilities are created and protected by a federal law, the Individuals with Disabilities Education Act (IDEA). 20 U.S.C. [section] 1400 et seq. Congress passed this law in recognition of, and as an attempt to address, a long history of schools excluding disabled children from the classroom and segregating these children from their non-disabled peers. Among IDEA's many purposes are to ensure "that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet each child's unique needs," 20 U.S.C. [section] 1400(d)(1)(A), and "that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. [section] 1400(d)(1)(B).

To achieve these goals, IDEA "confers upon disabled students an enforceable substantive right to public education in participating states, and conditions federal financial assistance upon a state's compliance with the substantive and procedural goals of the Act. …