Special ed students in isolation at juvenile facilities must receive education, federal government says
February 19, 2014 | By Jane Meredith Adams | 11 Comments
Special education students who are locked in isolation in juvenile facilities must receive educational services and behavioral interventions, according to a sweeping assertion of the rights of special education students in detention issued by the U.S. Department of Justice and the U.S. Department of Education.
The statement from the two federal agencies comes in response to a federal lawsuit against the Contra Costa County Office of Education and Contra Costa County alleging that some special education students were confined to their cells at the county Juvenile Hall for more than 22 hours a day for more than 100 days. The lawsuit charges that the students received few or no educational or behavioral services during that time. The suit was filed in August by nonprofit legal center Disability Rights Advocates, public interest law firm Public Counsel and Paul Hastings LLP on behalf of three special education students in Juvenile Hall.
In a motion to dismiss the suit, the county said the special education students were a threat to safety and therefore could not receive certain education and rehabilitation services.
“The truth is that there is no accommodation, much less a ‘reasonable one,’ that would result in plaintiffs not engaging in misconduct,” attorneys for Contra Costa County said in the motion to dismiss.
The Departments of Justice and Education disagreed, citing protections afforded to youth with disabilities under the Individuals with Disabilities Education Act and Title II of the Americans with Disabilities Act. A special education student’s allegedly dangerous behavior or disciplinary infraction does not excuse public agencies from their obligation to provide educational and behavioral services under the Individuals with Disabilities Education Act, the federal agencies said in a statement of interest in the case filed Feb. 13.
“The fact that youth have been charged with or convicted of a crime does not diminish their substantive rights, procedural safeguards, and remedies provided under the IDEA …” the federal agencies’ filing said. “Even when there are special circumstances based on the seriousness of a youth’s behavior, the youth is entitled to continue receiving education services and appropriate interventions and modifications to address the youth’s behavior.”
The Departments of Justice and Education also noted their clout in the courts. Because those federal agencies are responsible for enforcing the Americans with Disabilities Act and the Individuals with Disabilities Education Act, their interpretations of special education law have held considerable sway in federal courts, they said. The federal agencies asked the court to deny the county’s motion to dismiss and asked to be allowed to participate in oral arguments, if they occur. A hearing on the motion to dismiss will be held March 20.
The first plaintiff is identified as G.F., a 15-year-old girl diagnosed with bipolar affective disorder, attention deficit and hyperactivity disorder and intermittent explosive disorder. Because of fighting with other youth at Juvenile Hall, she was confined to her cell for more than 100 days, the lawsuit said; her attorneys called the disciplinary action solitary confinement, but the federal agencies used the term restrictive security program. Plaintiff Q.G., a 17-year-old diagnosed with oppositional defiant disorder and attention deficit hyperactivity disorder, alleged he has spent 200 days since 2010 confined to his cell.
The third plaintiff, W.B., is a 17-year-old diagnosed with psychosis and schizophrenia. His lawyers said he spent more than three months in isolation before having a psychotic break and being hospitalized.
The two federal agencies also accused the Contra Costa County Office of Education and the Contra Costa County of dodging responsibility for educating special education students and blaming each other for short-comings in services.
In the motion to dismiss the lawsuit, the county said that the Probation Department has no administrative control over Mt. McKinley School, which is the Juvenile Hall school run by the County Office of Education, and is not responsible for providing special education services. In turn, the County Office of Education said that it is not responsible for the denial of special education services because the Probation Department has sole authority over disciplinary practices.
“The lead agency responsible for the safety and security of the students in Juvenile Hall is the Department of Probation,” the County Office of Education said in a statement on Tuesday. Federal allegations of “finger pointing” between county probation and education offices were a distraction from “the important discussions around strengthening our partnership, so that the County Office of Education can successfully meet the educational needs of all youth in Juvenile Hall,” the statement said.
Betsy Burkhart, director of communications for Contra Costa County, said she was unable to comment on the federal statement because of the ongoing litigation.
Mary-Lee Smith, managing attorney at the Berkeley-based Disability Rights Advocates, said the case had national implications.
“The Department of Education and the Department of Justice are clearly saying that youth with disabilities in juvenile detention facilities are equally protected by the law,” Smith said. “The protections don’t go away just because they’re incarcerated.”