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Children with Disabilities in the Juvenile Justice System, National Disability Rights Network, 2015

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Orphanages, Training Schools, Reform Schools and Now This?
Recommendations to Prevent the Disproportionate Placement and Inadequate
Treatment of Children with Disabilities in the Juvenile Justice System
June 2015

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National Disability Rights Network

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A Letter from the Executive Director
Dear Friends,
For centuries we have been searching for a humane way to treat children with
“bad” behavior, and still we have not found our way. We have locked them up in
orphanages, so-called schools for the “retarded,” “mental hospitals,” training and
reform schools. We have dispatched them across the nation on orphan trains, farmed them
out, drugged them, shocked, lobotomized and beaten them. We have exorcised and broken
their spirits. We have scared them straight, made them climb mountains in wilderness camps
and dig holes in boot camps, hoping they would learn to behave through starvation and sheer
exhaustion. We have tortured our children and youth with all manner of horrors, from pepper
spray to cattle prods. As if this isn’t bad enough, now we have decided these children are
criminals and lock them up in juvenile justice facilities, adult jails, and prisons, sometimes
placing them in solitary confinement (the “Hole,” or the “Box”) for weeks and months at a time.
And, we treat some children worse than others. Prevalence studies have found that 65-70
percent of youth in the justice system meet the criteria for a disability, a rate that is more than
three times higher than that of the general population.
The difference between then and now is that we know better.
We know more than ever about the hidden causes that often underlie challenging behaviors.
We have a huge body of research at our disposal about best practices and adolescent
development. We know what works and what does not. Yet, we persist in doing it the wrong
way. Solitary confinement and treating children like adult criminals does not make them better
people. In fact, more often than not it worsens their behavior and diminishes the United States
in the eyes of the international community.
We know that youth who receive services at home and in their communities are better off. We
should focus on providing community based services to the vast majority of juvenile offenders
who are non-violent, using secure facilities as a last resort, and even then only for the amount
of time necessary to ensure safety to our communities. We can afford to provide the services
they need if we stop locking them up.
The best way to prevent recidivism is to ensure that youth leave the system with marketable
skills, some hope, and a home to return to. It’s time to trade “solitary” for “community” so our
nation’s children and youth will have a connection and a reason to succeed when they go back
home. The millions we spend housing and feeding our young people behind razor wire can be
far better spent helping them to find their way in this world.
Sincerely,
Curtis L. Decker, Esq.
Executive Director
National Disability Rights Network

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National Disability Rights Network

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Table of Contents
Orphanages, Training Schools, Reform Schools and Now This?
Recommendations to Prevent the Disproportionate Placement and Inadequate Treatment of
Children with Disabilities in the Juvenile Justice System

I.

Executive Summary ............................................................................................................ 7

II.

Overview of the Problem: Incarcerating Children with Disabilities Does Not Make Them
Better Adults and Does Not Make Communities Safer .................................................... 11

III.

Diversion: Children With Disabilities Are Placed in the Juvenile Justice System Due to
Failures in Other Systems ................................................................................................. 15
P&A Diversion Work: Problems and Solutions .................................................. 23

IV.

Conditions: Once in the System, They Are Not Treated Humanely Nor Provided The
Services They Require ....................................................................................................... 31
P&A Conditions Work: Problems and Solutions............................................... 35

V.

Re-Entry: Children with Disabilities Are Detained More Readily, Remain In the System
Longer Than Other Children, and Are Deprived of the Services Necessary to Prevent
Recidivism ......................................................................................................................... 45
P&A Re-Entry Work: Problems and Solutions.................................................... 47

VI.

Recommendations: Concrete Steps Systems and Policy Makers Can Make Now ........... 53

VII.

Acknowledgements .......................................................................................................... 53

VIII.

Appendix A: Acronym List ................................................................................................ 59

National Disability Rights Network

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National Disability Rights Network

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I.

Executive Summary

Despite some remarkable advances in the last ten years, the U.S. has not yet recovered from
the policies that swept our children into juvenile justice facilities in an unprecedented wave
during the 1990s. While juvenile incarceration rates have been reduced since that time, many
serious problems continue to plague youth programming – such as inhumane conditions in
facilities, youth treated as and intermingled with adult prisoners, and physical and sexual
abuse. At the same time, the United States continues its love affair with incarceration of adults,
locking up a greater percentage of citizens than any other nation, and an industry of private,
for-profit prisons has developed. We need to ensure that our juvenile justice system does not
serve as a ready feeder for the adult prison system.
Positive changes are occurring in the juvenile justice system, and these reforms need our
support to prevent them from drowning in the current wave of incarceration zeal. In general,
rates of juvenile crime and incarceration are down, the age for delinquency has been raised in
many states, and lengths of stay in detention have been reduced. Dozens of juvenile justice
facilities have closed and been replaced by more effective community based services.
Recent scientific advances have shown that young brains do not function as adult ones do, so
that punishment using adult methods may be less effective for youth. This same body of
research has shown us what methods and techniques work better with at-risk youth, and some
communities have already implemented these practices with good results. The legal system has
begun to change as well. In fact, the U. S. Supreme Court recently eliminated the death penalty
for juveniles and Juvenile Life Without Parole.
But it’s not the same for everyone. The U.S. incarcerates juveniles unequally and as a result,
improvements have bypassed some of our children and youth. Youth from particular racial and
ethnic backgrounds and youth with disabilities are incarcerated at disproportionately higher
rates. Prevalence studies have found that 65-70 percent of youth in the justice system meet the
criteria for a disability, a rate that is more than three times higher than that of the general
population.
Prisons, jails and juvenile justice facilities have in many places become the new “mental
hospitals” and “homes for the retarded,” 1 and they do not treat our children much better than

It is very important to note here that these phrases and their ilk should never be used in a current context, which
is why they appear here in quotes. They represent and are bound tightly to a period in our history that has come to
its end, and so has the language representing it. However, it is similarly important to remember that history and to
honor with honesty the struggles of those in the disability rights movement who made the change

1

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the old institutions did. In many places, education and habilitation have become less important
than punitive “behavior modification” regimes. Adult-like methods of punishment, such as
solitary confinement have become commonplace in many facilities. Solitary confinement
(isolation) is even more brutal to young people than it is to adults.
Despite policy efforts to prevent this, juvenile justice facilities can be places where children and
youth, many of whom were abused as small children, are physically, emotionally and sexually
abused all over again. Vulnerable youth learn survival skills while in the system that increase
the likelihood that they will re- offend upon release, feeding an adult system already crowded
with prisoners who have disabilities. In short, it is often the case that youth come out of the
juvenile justice system worse off than they went in.
There remains an urgent need to protect children and youth with disabilities from unnecessary
incarceration. When confinement is necessary, it is critical that they are provided the services
they need to grow and develop, as well as the educational and rehabilitation necessary to
rejoin their communities successfully.
The National Disability Rights Network (NDRN) is the national membership organization for the
Protection and Advocacy (P&A) and Client Advocacy System (CAP) Systems, the nationwide
network of congressionally mandated, legally based disability rights agencies. P&A agencies
have the authority to provide legal representation and other advocacy services, under all
federal and state laws, to all people with disabilities, and are the largest provider of legallybased services for people with disabilities in the nation.
The P&A network staff understand what children and youth with disabilities encounter within
the juvenile justice system because they are there to see it. P&As work with children and youth
with disabilities on the front end of the juvenile justice system, and also maintain a presence in
the facilities in which they are found, including prisons, jails, and detention centers. P&As have
the legal authority to monitor and investigate allegations of abuse in these facilities.
The goal of this report is to share what the P&As have learned about the needs of children and
youth with disabilities in the juvenile justice system with those who can help make the
necessary changes and protect and advance current systemic reforms.
Issues addressed in this report include: Diversion of children and youth with disabilities from
the juvenile justice system (particularly stemming the “School to Prison Pipeline”), humane
Conditions while incarcerated (such as accommodation and communication needs, medical
care, mental health treatment, and the prevention of abuse and neglect) and Re-entry services
possible. Therefore, in this report we will use these words when they are necessary to provide a historical context
and only then.

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like education and treatment to ensure the child or youth’s success upon release from the
facility.
In this report, we will describe the problems children and youth with disabilities encounter,
solutions utilized with success by the P&As, and provide specific recommendations for systemic
improvements.
Some of those recommendations include:
•

•

•

•

Congress should authorize and fund a Protection and Advocacy for Juvenile Justice
Program to help divert youth with disabilities from entering the juvenile justice system,
investigate and monitor conditions for youth with disabilities in the juvenile justice
system, and ensure proper return to the community with needed services and supports.
Congress should include in the reauthorization of the Juvenile Justice Delinquency
Prevention Act (JJDPA) language that clearly and specifically eliminates the Valid Court
Order exception and prohibits the use of solitary confinement and/or isolation for all
juveniles, including those housed in adult settings.
Congress should require that schools identified as having elevated school-based arrest
rates: 1) lose the opportunity to use federal funds to employ School Resource Officers
(SROs); 2) are required to develop Memoranda of Understanding that ensure that SROs
work is limited to traditional police activities and not discipline of non- violent student
behavior; and, 3) require SROs in those schools to undergo training in specific, related
topics.
The U.S. Department of Education (ED) and Department of Justice (DOJ) should fully
enforce all provisions of Title VI, Title IX, the Americans with Disabilities Act (ADA),
Section 504, and the Individuals with Disabilities Education Act (IDEA), including all
obligations under these statutes for youth in correctional facilities, so that education of
youth in these settings is equal to that provided to students in other public schools.

We can do better.

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National Disability Rights Network

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II. Overview of the Problem
Incarcerating Children with Disabilities Does Not Make Them Better People
Despite some remarkable advances in the last ten years, the U.S. has not yet recovered from
the policies that swept our children into juvenile justice facilities in an unprecedented wave
during the 90’s.2 While juvenile incarceration rates have been reduced since that time, 3 many
serious problems continue to plague youth programming– such as inhumane conditions in
facilities, youth treated as and intermingled with adult prisoners, and physical and sexual
abuse. At the same time, the United States continues its love affair with incarceration of adults,
locking up a greater percentage of citizens than any other nation, 4 and an industry of private,
for-profit prisons has developed. We need to ensure that our juvenile justice system does not
serve as a ready feeder for the adult prison system.
Positive changes are occurring in the juvenile justice system, and these reforms need our
support to prevent them from drowning in the current wave of incarceration zeal. In general,
rates of juvenile crime and incarceration are down, the age for delinquency has been raised in
many states5 and lengths of stay in detention have been reduced. 6 Dozens of juvenile justice
facilities have closed 7and been replaced by more effective community based services.
Recent scientific advances have shown that young brains do not function as adult ones do, so
that punishment using adult methods may be less effective for youth.8 This same body of
Mark Soler, Dana Shoenberg, and Marc Schindler, Juvenile Justice: Lessons For A New Era, 16 Geo. J. on Poverty L.
& Pol’y 483, 541 (2009). Available at:
http://www.cclp.org/documents/JJDPA_Resources/Soler%20Shoenberg%20Schindler%20%20Juvenile%20Justice%20-%20Lessons%20for%20A%20New%20Era.pdf
3
Juvenile Arrest Rate Trends, OJJDP Statistical Briefing Book. Online. Available:
http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05201. December 09, 2014. Available at:
http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05201; Youth Incarceration in the United States,
Annie E. Casey Foundation, February 6, 2013. Available at: http://www.aecf.org/resources/youth-incarceration-inthe-united-states/
4
For a useful infographic see: The state of America’s federal prison system, Wash.Post. (May 27, 2015). Available
at http://www.washingtonpost.com/world/national-security/the-state-of-americas-federal-prisonsystem/2015/02/28/4855afc6-bf87-11e4-b274-e5209a3bc9a9_graphic.html?postshare=4101430761370984;
Travis, Jeremy, et. al., The Growth of Incarceration in the United States: Exploring Causes and Consequences 37
(2014). Available at http://www.nap.edu/openbook.php?record_id=18613&page=37
5
Sickmund,M. Which State Will Be The Last To ‘Raise The Age’?, 2014. Available at: http://jjie.org/which-statewill-be-the-last-to-raise-the-age/
6
Re-Examining Juvenile Incarceration, PEW Charitable Trusts, April 20, 2015. Available at:
http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/04/reexamining-juvenile-incarceration
7
Bryer, Levin, The Comeback States: Reducing Youth Incarceration in the United States, 2013.
Available at: http://www.njjn.org/uploads/digital-library/Comeback-States-Report_FINAL.pdf
8
This report does not address the effectiveness of these methods as applied to adults.
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research has shown us what methods and techniques work better with at-risk youth 9 and that
even very short stays in detention have a negative impact on youth.10 Some communities have
already implemented new practices with good results. 11 The legal system has begun to change
as well. In fact, the U. S. Supreme Court has eliminated the death penalty for juveniles 12 and
Juvenile Life Without Parole. 13
But it’s not the same for everyone. The U.S. incarcerates juveniles unequally and as a result,
improvements have bypassed some of our children and youth. Youth from particular racial and
ethnic backgrounds14 and youth with disabilities are incarcerated at disproportionately higher
rates. 15 Prevalence studies have found that 65-70 percent of youth in the justice system meet
the criteria for a disability, 16 a rate that is more than three times higher than that of the general
population. Additionally, at least 75 percent of youth in the juvenile justice system have
experienced traumatic victimization, 17 leaving them at-risk for mental health disorders such as
posttraumatic stress syndrome.

Georgetown University, Improving the Effectiveness of Juvenile Justice Programs A New Perspective on Evidence
Based Practice, http://cjjr.georgetown.edu/pdfs/ebp/ebppaper.pdf (2010); Phillippi, Stephen & DePrato, Debra,
Innovation Brief: Model for Efective Implementation of Evidence-Based Practices, Models for Change, (December
12, 2013) http://www.modelsforchange.net/publications/494. Because Kids are Different: Five Opportunities for
Reforming the Juvenile Justice System, Models for Change Resource Center Partnership, (December 9, 2014)
http://www.modelsforchange.net/publications/718.
10
Barry Holman & Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention
and Other Facilities (Justice Policy institute, 200*)
11
Dual Status Youth Reform, Robert F. Kennedy National Resource Center for Juvenile Justice, (2013)
http://www.rfknrcjj.org/our-work/dual-status-youth-reform/. Juvenile Detention Alternatives Initiative (JDAI),
http://www.jdaihelpdesk.org/SitePages/jdai-sites.aspx.
12
Roper v. Simmons, 543 U.S. 551 (2005)
13
Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455(2012).
14
Disproportionate Minority Contact. 6 Nat’l Council of St. Legis. 1, 2 (2011). Available at
http://www.ncsl.org/documents/cj/jjguidebook-DMC.pdf
15
Juvenile Justice and Mental Health and Substance Use Disorders Fact Sheet, Act 4 Juvenile Justice, (August 2014)
Available at:
http://act4jj.org/sites/default/files/ckfinder/files/ACT4JJ%20Mental%20Health%20Fact%20Sheet%20August%202
014%20FINAL.pdf.http://act4jj.org/sites/default/files/ckfinder/files/ACT4JJ%20Mental%20Health%20Fact%20Shee
t%20August%202014%20FINAL.pdf
16
Skowyra & Cocozza, Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth
with Mental Health Needs in Contact with the Juvenile Justice System, National Center for Mental Health and
Juvenile Justice, (May, 2015); http://www.ncmhjj.com/wp-content/uploads/2013/07/2007_Blueprint-for-ChangeFull-Report.pdf. Teplin, Linda A., et al., The Northwestern Juvenile Project: Overview 1-13 (2013). Available at
http://www.ojjdp.gov/pubs/234522.pdf Better solutions for Youth with Mental Health Needs in the Juvenile
Justice System, The Mental Health and Juvenile Just. Collaborative for Change, 1 7 (2014). Available at:
http://cfc.ncmhjj.com/wp-content/uploads/2014/01/Whitepaper-Mental-Health-FINAL.pdf
17
Better solutions for Youth with Mental Health Needs in the Juvenile Justice System, The Mental Health and
Juvenile Just. Collaborative for Change, 1 7 (2014). Available at: http://cfc.ncmhjj.com/wpcontent/uploads/2014/01/Whitepaper-Mental-Health-FINAL.pdf
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Prisons, jails and juvenile justice facilities have in many places become the new “mental
hospitals” and “homes for the retarded”, 18 and they do not treat our children much better than
the old institutions did. In many places, education and habilitation have become less important
than punitive “behavior modification” regimes. Adult- like methods of punishment, such as
solitary confinement have become commonplace in many facilities. Solitary confinement
(isolation) is even more brutal to young people than it is to adults.19
Despite policy efforts to prevent this, 20 juvenile justice facilities can be places where children
and youth,21 many of whom were abused as small children, 22 are physically, emotionally and
sexually abused all over again. 23 Vulnerable youth learn survival skills while in the system that
increase the likelihood that they will re-offend upon release, feeding an adult system already
crowded with prisoners who have disabilities. In short, it is often the case that youth come out
of the juvenile justice system worse off than they went in.
There remains an urgent need to protect children and youth with disabilities from unnecessary
incarceration. When confinement is necessary, it is critical that youth are provided the services
It is very important to note here that these phrases and their ilk should never be used in a current context, which
is why they appear here in quotes. They represent and are bound tightly to a period in our history that has come
to its end, and so has the language representing it. However, it is similarly important to remember that history
and to honor with honesty the struggles of those in the disability rights movement who made the change
possible. Therefore, in this report we will use these words when they are necessary to provide a historical context
and only then.
19
The Box: Teens in Solitary Confinement in U.S. Jails, Prisons and Juvenile Halls, Youtube, (May, 2015)
https://www.youtube.com/watch?v=jA1LkgyQ4Iw&feature=youtu.be. One Dark Side of the Criminal Justice
System that Everyone Should Know, Mic, (May, 2015) http://mic.com/articles/116806/one-dark-side-of-thecriminal-justice-system-that-everyone-should-know.
20
Such as the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. § 15601 et seq., which contains protections for
youth from sexual predation by other inmates and staff.
21
As this is a report about youth with disabilities, unless otherwise stated, when the term “youth” is used, it is
intended to mean youth with disabilities.
22
Thomas Grisso & Gina Vincent, Trauma in Dual Status Youth: Putting Things in Perspective, Models For Change
(May, 2015) http://www.modelsforchange.net/publications/760l Wiig, Janet K. & Tuell, John A., Guidebook for
Juvenile Justice & Child Welfare System Coordination and Integration, xiii-xvi (2013, ed. 3). Available at:
http://www.rfknrcjj.org/images/PDFs/Guidebook-for-JJ-and-CW-System-Coordination-and-Integration-Cover.pdf.
23
Sexual: Elinson, Zusha, Juveniles Sexually Abused by Staffers at Corrections Facilities, Wall St. J. (Jan 1, 2015).
Available at http://www.wsj.com/articles/juveniles-sexually-abused-by-staffers-at-corrections-facilities1420160340?mg=id-wsj. Beck, Allen J., et al., Sexual Victimization in Juvenile Facilities Reported by Youth, 20082009, 1 23 (2010). Available at http://www.bjs.gov/content/pub/pdf/svjfry09.pdf. Key Facts: Youth in the Justice
System, Campaign for Youth Justice (April 2012)
http://www.campaignforyouthjustice.org/documents/KeyYouthCrimeFacts.pdf.
Physical: Understanding the OJJDP Survey of Conditions of Confinement in Juvenile Facilities, Center for Children’s
Law and Policy. (August 2010) http://www.cclp.org/documents/Conditions/Fact%20Sheet%20%20OJJDP%20Survey-%20Conditions%20of%20Confinement.pdf. Fact Sheet: Protecting Incarcerated Youth, Act 4
Juvenile Justice, (September, 2014) http://act4jj.org/sites/default/files/ckfinder/files/Act4JJ%20Fact%20SheetProtecting%20Incarcerated%20Youth%20FINAL%20Sept%202014.pdf.
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they need to grow and develop, as well as the educational and rehabilitation necessary to
rejoin their communities successfully.
The National Disability Rights Network (NDRN) is the national membership organization for the
Protection and Advocacy (P&A) and Client Advocacy System (CAP) Systems, the nationwide
network of congressionally mandated, legally based disability rights agencies. P&A agencies
have the authority to provide legal representation and other advocacy services, under all
federal and state laws, to all people with disabilities, and are the largest provider of legallybased services for people with disabilities in the nation.
The P&A network staff understand what children and youth with disabilities encounter within
the juvenile justice system because they are there to see it. P&As work with children and youth
with disabilities on the front end of the juvenile justice system, and also maintain a presence in
the facilities in which they are found, including prisons, jails, and detention centers. P&As have
the legal authority to monitor and investigate allegations of abuse in these facilities.
The goal of this report is to share what the P&As have learned about the needs of children and
youth with disabilities in the juvenile justice system with those who can help make the
necessary changes and protect and advance current systemic reforms.
Issues addressed in this report include: Diversion of children and youth with disabilities from
the juvenile justice system (particularly stemming the “School to Prison Pipeline” 24), humane
Conditions while incarcerated (such as accommodation and communication needs, medical
care, mental health treatment, and the prevention of abuse and neglect) and Re-entry services
like education and treatment to ensure the child or youth’s success upon release from the
facility.
We will describe the problems children and youth with disabilities encounter, solutions utilized
with success by the P&As, and provide specific recommendations for systemic improvements.

The “School to Prison Pipeline” is frequently referred to in the media as a group of policies which result in the
removal of certain youth from school and into the juvenile or adult justice systems. See: D e e n e y , J e f f , How
To Discipline Students Without Turning School Into A Prison, Atlantic, (J a n . 9 , 2 0 1 4 ) . A v a i l a b l e a t :
http://www.theatlantic.com/education/archive/2014/01/how-to-discipline-students-without-turning-school-intoa-prison/282944/
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III. Diversion
Children with Disabilities Are Placed in the Juvenile Justice System Due to Failures in Other
Systems
Few dispute that in order to protect its citizens, government must address situations in which
individuals violate laws. But, civil rights and questions about the deterrence value of certain
penalties arise when the penalty is applied as a result of the lack of other program or
placement options, or when the violation is due to a symptom of a person’s disability.
The United States incarcerates more of its youth than any other country. 25 As mentioned
above, youth with disabilities and children of color are also disproportionately represented in
the juvenile justice system. “As states have undertaken efforts to reduce disproportionate
minority confinement for youth, they have found evidence that disproportionality occurs at
every contact point within the juvenile justice system, from arrest to cases transferred to
criminal court and not just at detention and correction.” 26
The causes of this problem are not a mystery and occur long before the youth is incarcerated.
The P&As have learned through their advocacy and case work that students who are removed
from school are more likely to enter the juvenile justice system, and school district discipline
practices are one of the key intake routes into the School to Prison Pipeline (STPP). 27 In fact, as
Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and
other Secure Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/0611_REP_DangersOfDetention_JJ.pdf. Shufelt, Jennie L. & Cocozza, Joseph J, Youth with Mental health Disorders in
the Juvenile Justice System: Results from a Multi-State Prevalence Study, National Center for Mental Health and
Juvenile Justice. (June, 2006) http://www.ncmhjj.com/wp-content/uploads/2013/07/7.-PrevalenceRPB.pdf.
26
Hsia, Heidi, Disproportionate Minority Contact Technical Assistance Manual, National Criminal Justice Reference
Service, 1 (July 2009) https://www.ncjrs.gov/html/ojjdp/dmc_ta_manual/dmcintro.pdf.
27
There is a package of research that addresses these issues at
http://civilrightsproject.ucla.edu/events/2013/copy_of_closing-the-school-discipline-gap-agenda. See: Balfanze,
Robert, et al., Sent Home and Put Off-Track: The Antecedents, Disproportionalities, and Consequences of Being
Suspended in the Ninth Grade, Civil Rights Project at UCLA, (April, 2013)
http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prisonfolder/state-reports/sent-home-and-put-off-track-the-antecedents-disproportionalities-and-consequences-ofbeing-suspended-in-the-ninth-grade/balfanz-sent-home-ccrr-conf-2013.pdf. Marchbanks, Miner P, et al., The
Economic Effects of Exclusionary Discipline on Grade Retention and High School Dropout, Civil Rights Project at
UCLA (April 2013) http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-toprison-folder/state-reports/the-economic-effects-of-exclusionary-discipline-on-grade-retention-and-high-schooldropout/marchbanks-exclusionary-discipline-ccrr-conf.pdf. Skiba, Russell J., et al., Where Should We Intervene?
Contributions of Behavior, Student, and School Characteristics to Suspension and Expulsion. Civil Rights Project at
UCLA (April 2013) http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-toprison-folder/state-reports/copy_of_dignity-disparity-and-desistance-effective-restorative-justice-strategies-toplug-the-201cschool-to-prison-pipeline/skiba-where-intervene-ccrr-conf-2013.pdf. Toldson, Ivory A., et al.,
Reducing Suspension among Academically Disengaged Black Males, Civil Rights Project at UCLA (April 2013)
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the case examples below illustrate, school staff refer students with disabilities directly into the
juvenile justice system, through the use of such methods as arrests for school code violations,
truancy actions, and disciplinary “tickets.” 28
Children with disabilities are removed from school for disciplinary reasons more often than
other students. A data analysis released in August of 2012 makes this connection for children
with disabilities.” Applying these three lenses together – race, gender and disability—yields a
more disturbing image than any one of the categories alone. The group that consistently had
the highest rate of suspension is African American male students with disabilities. In some of
the largest districts in the U.S., suspension rates for this group reached more than 70% of their
enrollment.” 29 As a result of this report by the Civil Rights Project and others, we know that a
specific sub group of children of color, those who are also children with disabilities, receive
different treatment than their peers in public school. Not surprisingly, this is also the group
represented at the highest rates in the juvenile justice system.
Given what we now know about practices that school districts may use to keep students
productively engaged in school, including such low cost innovations as positive behavior
supports and interventions, quality teacher training and behavior planning, these suspension
rates are inexcusable.30 Diversion can work well for schools and students both. When a student
begins to have behavioral issues at school, a solid functional behavior assessment and positive
behavior intervention plan can make a great difference in both improving the child’s behavior
and teaching the child alternative coping methods. The provision of “wrap around” 31
community based services may also be a helpful support to both the child and her or her
http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prisonfolder/state-reports/copy3_of_dignity-disparity-and-desistance-effective-restorative-justice-strategies-to-plugthe-201cschool-to-prison-pipeline/toldson-reducing-suspension-ccrr-conf-2013.pdf.
28
By “tickets” here we mean tickets given to students for violation of school rules that result in fines and/or
referrals to the juvenile justice system. For example, tickets given to students in Texas as a result of truancy.
See: Class, Not Court; Reconsidering Texas’ Criminalization of Truancy, Texas Appleseed, (2015) Available at:
http://www.texasappleseed.net/index.php?option=com_docman&task=doc_download&gid=1209&Itemid=
29
Losen, Daniel J. & Gillespie, Jonathan, Opportunities Suspended: The Disparate Impact of Disciplinary Exclusion
from School, Civil Rights Project at UCLA 36 (August 2012)
http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prisonfolder/federal-reports/upcoming-ccrr-research/losen-gillespie-opportunity-suspended-2012.pdf
30
Gregory, Anne, et al., The Promise of a Teacher Professional Development Program in Reducing the Racial
Disparity in Classroom Exclusionary Discipline, Civil Rights Project at UCLA (April 2013)
http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prisonfolder/state-reports/the-promise-of-a-teacher-professional-development-program-in-reducing-the-racialdisparity-in-classroom-exclusionary-discipline/gregory-teacher-development-ccrr-2013.pdf. Positive Behavioral
Interventions & Supports, Office of Special Education Programs, (May 2015) http://www.pbis.org.
31
“Wrap Around Services” generally consist of a package of individualized community-based services focused on
the strengths and needs of the child and family.

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school. In addition, if the youth later ends up in the juvenile justice system, those supports will
be easily accessed when he/she transitions out.
CAUSES FOR DIVERSION FAILURES
There are a number of factors that result in youth with disabilities referred disproportionately
into the juvenile justice system. Here are a few to consider:
Law Enforcement
Disabilities may prevent youth from advocating appropriately for themselves at the time of
arrest and/or for appropriate dispensation within the system. For example, youth with
particular types of disabilities may be more likely to confess to a crime they did not commit. 32
P&As have learned through their case work that youth with disabilities may not be able to
express exactly what happened during an incident or may be named by another youth in an
attempt to deflect responsibility and be unable to explain their perspective.
Due to the lack of appropriate services or the inability to advocate effectively on their own
behalf, youth with disabilities may also be more likely to move deeper into the system than
other youth. Juvenile defenders often lack the information they need to inform the court of the
impact of a child’s disabilities. Some juvenile court staff and others may express a well-meaning
belief that the best way to ensure access to services and to get the attention of parents and
caregivers is by bringing the youth into the juvenile justice system. A child without disabilities
may be more likely to be sent home by the court (remanded to parental custody) with a stern
warning, than a child with disabilities who has a clear and unmet need for services. In some
states, “direct file” statutes permit youths to be tried adults for certain offenses, making
diversion more difficult. In addition, inadequate juvenile defense in some locations and basic
unmet accommodation needs, such as the need for sign language interpreters, accessible public
transportation, or courtroom accommodations, may result in the youth being unable to access
the court system effectively resulting in missed court dates and related appointments
Community Mental Health and Other Community Based Services
Long waiting lists for community based services, including access to therapy, “related services,”
evaluation, medication, and other services that are not evidence based, may cause youth to be
unnecessarily detained in the juvenile justice system or referred by school staff into that system
due to a belief that this will expedite and shorten their wait for services.
Davis, Leigh Ann, People with Intellectual Disability in the
Criminal Justice System: Victims & Suspects, The ARC, August 2009. Available at: http://www.thearc.org/what-wedo/resources/fact-sheets/criminal-justice
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Child Welfare
Children who are wards of the state or county due to parental abuse or neglect are also more
likely than other youth to end up in the juvenile justice system for a variety of reasons,
including lack of continuity of services and placement options. P&As have had cases in which
children who have not been accused of breaking any laws were housed with youth adjudicated
delinquent, due to lack of program/placement options.
Once in the juvenile justice system, youth involved in the child welfare system are detained at
an earlier age, more frequently and for longer periods of time than youth with no child welfare
involvement.33 Like youth with mental health and substance use disorders, “dual status” youth
who are involved in both the child welfare and juvenile justice systems, are more likely to be
treated harshly within the juvenile justice system. Their numbers tend to accumulate
proportionately as delinquency cases move deeper into the system.
Public Education
As described above and throughout this report, students who are removed from school are
more likely to enter the juvenile justice system, and school district discipline practices are one
of the key intake routes into the School to Prison Pipeline (STPP). School staff refer students
with disabilities directly into the juvenile justice system, and children who do not receive
needed services fall through the cracks in to the juvenile justice system at alarming rates.
WHY DIVERSION MATTERS
If juvenile incarceration were a benefit to youth, inequitable incarceration and misincarceration 34 might be less of a concern – but this is simply not the case. Incarceration for the
most part does not benefit youth, is expensive, and does not produce better outcomes. 35
In addition, it is unjust to punish children who have not broken the law by choice. For example,
when a child with a disability is referred to the juvenile justice system for truancy but the child
has been prevented from attending school because he or she has not received the services
needed to do so.

Halemba, Gregory & Siegel, Gene, Doorways to Delinquency: Multi-System Involvement of Delinquent Youth in
King County (Seattle, WA), National Center for Juvenile Justice, (September 2011)
http://www.ncjj.org/pdf/MFC/Doorways_to_Delinquency_2011.pdf.
34
By “mis incarceration” we mean youth who are incarcerated due to lack of other programming or community
based services.
35
Re-Examining Juvenile Incarceration: High Cost, Poor Outcomes Spark Shift to Alternatives, PEW Charitable
Trusts, (April, 2015) http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/04/reexaminingjuvenile-incarceration.
33

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Once incarcerated, youth often leave these facilities worse, not better off, and often experience
short-term and life-long adverse consequences.36 Confinement often disrupts any educational
and vocational opportunities, medication management, and counseling they had been
receiving. 37 Even an interruption of a few days or weeks, coupled with the trauma of
confinement, can cause disruptions in family and peer relationships and adolescent social and
emotional development, and result in relationships with negative peers, dropping out of school,
and difficulty finding work due to the stigma of incarceration.38 Those who return home from
detention because the charges were dismissed are stigmatized by their arrest and struggle to
cope with the long-term effects of confinement.39 Many problems that contributed to a youth’s
maladaptive behavior, arrest and confinement still persist when they return to the
community—they still have low literacy, poor academic achievement, and have difficulty
managing their anger, emotions, and relationships. 40 In addition, these youth now have another
risk factor: contact with the justice system. 41
Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and
other Secure Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/0611_REP_DangersOfDetention_JJ.pdf. Griffin, Patrick, Juvenile Court-Controlled Reentry: Three Practice Models,
National Center for Juvenile Justice (February 2005) http://www.ncjj.org/PDF/court-controlledreentry.pdf. Nellis,
Ashley, et al., Youth Reentry: Youth Development, Theory, Research & Recommended Best Practices, 1 49 (2009).
37
Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and
other Secure Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/0611_REP_DangersOfDetention_JJ.pdf. Griffin, Patrick, Juvenile Court-Controlled Reentry: Three Practice Models,
National Center for Juvenile Justice (February 2005) http://www.ncjj.org/PDF/court-controlledreentry.pdf. Nellis,
Ashley, et al., Youth Reentry: Youth Development, Theory, Research & Recommended Best Practices, 1 49 (2009).
38
Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and
other Secure Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/0611_REP_DangersOfDetention_JJ.pdf. Griffin, Patrick, Juvenile Court-Controlled Reentry: Three Practice Models,
National Center for Juvenile Justice (February 2005) http://www.ncjj.org/PDF/court-controlledreentry.pdf.
Baltodano, H. M., et al., Transition from Secure Care to the Community: Significant Issues for Youth in Detention.
372 388 (2005). Brock, L, et al., Transition Toolkit 2.0: Meeting the Educational Needs of Youth Exposed to the
Juvenile Justice System, National Evaluation and Technical Assistance Center for the Education of Children and
Youth who are Neglected, Delinquent, and At-Risk (2008) http://www.neglecteddelinquent.org/sites/default/files/docs/transition_toolkit200808/full_toolkit.pdf
39
Petteruti, A., et al., The Costs of Confinement: Why Good Juvenile Justice Policies Make Good Fiscal Sense,
Justice Policy Institute, (May 2009)
http://www.justicepolicy.org/images/upload/09_05_rep_costsofconfinement_jj_ps.pdf. Holman, Barry &
Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and other Secure
Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/0611_REP_DangersOfDetention_JJ.pdf. Mulvey, E.P., et al., Trajectories of desistance and continuity in antisocial
behavior following court adjudication among serious adolescent offenders, Development and Psychopathology 22,
453-473 (2008).
40
Matvya, J., et al., School Reentry for Juvenile Offenders, University of Maryland School of Mental Health Analysis
and Action, (August 2006) http://csmh.umaryland.edu/Resources/Briefs/SchoolReentryBrief.pdf.
41
Matvya, J., et al., School Reentry for Juvenile Offenders, University of Maryland School of Mental Health Analysis
and Action, (August 2006) http://csmh.umaryland.edu/Resources/Briefs/SchoolReentryBrief.pdf.
36

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Incarceration is all too often ineffective in protecting the public and correction facilities are
more likely to serve as a “crime school” by exposing youth to anti-social peers resulting in a
large number cycling back into the justice system. 42 The high recidivism rate for court-involved
youth is strong evidence that it is not effective in helping youth to get on track and become
successful adults. 43
Juvenile facilities generally are not youth-centered, family-driven, or culturally sensitive. 44 They
are not nurturing environments where youth with disabilities can accomplish the
developmental tasks and learn the skills needed to become productive adults. 45 Not only are
most secure facilities ill-equipped to meet the needs of youth with serious emotional and
behavioral disabilities, standard therapies have not been normed for correctional settings
where youth live in stark cells and the emphasis is on physical control and punishment.46 Even
worse, these facilities often are places where youth are exposed to physical and sexual violence
and negative role models. 47 While exemplary juvenile justice programs do exist and youth
thrive within them, as described in the case examples in this report, such programs do not
uniformly exist nationwide.
Fortunately, the pipeline which feeds children with disabilities into the juvenile justice system
does not need to be foregone conclusion. As in the past, P&As and other disability rights
advocates will continue to play a key role in ameliorating unnecessary and inappropriate school
Petteruti, A., et al., The Costs of Confinement: Why Good Juvenile Justice Policies Make Good Fiscal Sense,
Justice Policy Institute, (May 2009)
http://www.justicepolicy.org/images/upload/09_05_rep_costsofconfinement_jj_ps.pdf. Holman, Barry &
Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and other Secure
Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/0611_REP_DangersOfDetention_JJ.pdf. Mulvey, E.P., et al., Trajectories of desistance and continuity in antisocial
behavior following court adjudication among serious adolescent offenders, Development and Psychopathology 22,
453-473 (2008).
43
Zhang, D., et al., Adolescents with Disabilities in the Juvenile Justice System: Patterns of Recidivism, Exceptional
Children 77, 283-296 (2011). Zhang, D., et al., Juvenile Offenders with and without Disabilities: Risks and Patterns
of Recidivism, Learning & Individual Differences 21, 12-18 (2011).
44
Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and
other Secure Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/0611_REP_DangersOfDetention_JJ.pdf. Griffin, Patrick, Juvenile Court-Controlled Reentry: Three Practice Models,
National Center for Juvenile Justice (February 2005) http://www.ncjj.org/PDF/court-controlledreentry.pdf. Nellis,
Ashley, et al., Youth Reentry: Youth Development, Theory, Research & Recommended Best Practices, 1 49 (2009).
45
Beyer, M. & Demuro, P., Review of Services for Alabama Girls Charged with Delinquency, Southern Poverty Law
Center, (2012) http://www.splcenter.org/review-of-services-for-alabama-girls-charged-with-delinquency.
46
Scott, E. S. & Steinberg, L., Rethinking Juvenile Justice, Harvard University Press (2008). Skowyra & Cocozza,
Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth with Mental Health
Needs in Contact with the Juvenile Justice System, National Center for Mental Health and Juvenile Justice, (May,
2015) http://www.ncmhjj.com/wp-content/uploads/2013/07/2007_Blueprint-for-Change-Full-Report.pdf.
47
Beck, Allen J., et al., Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-2009, (2010). Available at
http://www.bjs.gov/content/pub/pdf/svjfry09.pdf.
42

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removals for children and youth with disabilities, preventing juvenile justice referrals of youth
by school staff, and helping students meet with success at school. They will also assist in
obtaining appropriate community based services for youth with disabilities, both those within
and outside of the child welfare and juvenile justice systems, and work with public defenders
and court staff to prevent injustices in the arrest and placement phases.
The P&A Network is well placed to do this work, currently representing thousands of children
with disabilities every year. P&As and other advocates can help locate vulnerable youth, use
data to determine systemic trends and to educate lawmakers and the public, represent youth
at the individual and systemic levels, and change damaging and unfair policies such as “zero
tolerance” discipline codes.
Many P&As are already advocating on behalf of youth to divert them from contact with the
juvenile justice system. By working in coalition with other interested stakeholders, including the
racial justice community and juvenile defense bar, advocates also expand their capacity to
serve youth.

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P&A Diversion Work: Problems and Solutions
Here are some examples of the types of problems youth with disabilities encounter. Youth
with disabilities who are also members of another protected class (such as race or ethnicity)
encounter even more significant barriers.
ALABAMA
Problem
The Alabama P&A was contacted by parents of a 13 year old boy with multiple
disabilities including severe anxiety disorder, tic disorder, and learning
disabilities. His special education teacher and paraprofessional had filed
harassment and assault charges against him.
Solution
The P&A provided information to the client's defense attorney, juvenile
probation officer, and the assistant district attorney about the child’s disability
and how his behavior was a manifestation of his disability. The P&A advocate
attended the hearing where the child was found not guilty on all charges. The
defense attorney stated that the information provided by the P&A regarding the
client's disability and its impact on his behavior was vital to the outcome of the
case. As a result, the youth returned to school with an appropriate IEP developed
with the P&A’s assistance and delinquency charges were dropped.
CALIFORNIA
Problem
Juan is a student with anxiety and depression who receives special education
services. He is prone to panic attacks, nose bleeds, vomiting, and other
complications brought on by his fear of being in groups which has caused chronic
truancy and poor attendance at school. As a result of an administrative error in
recording Juan’s absences from school, Juan was ordered to wear an ankle
bracelet affixed by a probation department until he returned to school. A
student attendance review board did not consider Juan’s special education
eligibility when it referred him to probation. Later, Juan was taken by force at
the direction of the probation department from his mother’s home and
transported to school. In less than an hour, Juan’s school called his mother to
pick him up because he was experiencing physical symptoms of his anxiety.

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Solution
Based on Juan’s qualifying diagnosis for special education and present problems
in truancy court, the P&A convinced Juan’s new school to approve home-hospital
as the appropriate educational placement and service for him for the remainder
of the school year. Juan’s school completed assessments and revised his IEP to
indicate that once the assessments were completed, he would receive mental
health and educational services from the school district through a home-hospital
program. The ankle bracelet was removed and it is anticipated that Juan will
attend extended school year classes in a regular school in the summer of 2015.
CONNECTICUT
Problem
A child with mental and developmental disabilities was charged with criminal
mischief and disorderly conduct related to altercations with staff at a hospital
where he was treated. He had been placed in the custody of the Connecticut
Dept. of Children and Families (DCF) on the basis of a finding of parental neglect.
Pursuant to a Connecticut statute, DCF transferred him to the Dept. of
Correction (DOC) for incarceration at a juvenile detention facility (where he was
kept in solitary confinement). He had never been convicted of a crime, but was
incarcerated because the DCF decided he was “dangerous.”
Solution
The P&A sued and the Connecticut Supreme Court held that the trial court
should have conducted a competency evaluation of the youth before he was
transferred to the Department of Corrections. The ruling helped improve case
law.
FLORIDA
Problem
The mother of a youth with mental illness and learning disabilities contacted the
P&A after the principal of his school advocated with the school resource officer
to arrest him following an altercation with another youth. The youth was placed
in county jail without educational resources until a hospital/homebound teacher
found the youth in the jail by chance. The youth was without educational

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services for several months and the School Board had not provided the youth
educational services in accordance with his IEP in years.
Solution
P&A staff intervened and after a special education due process mediation
session, the school department agreed to provide the youth with transitional
vocational training, one-on-one compensatory education, tutoring, and
behavioral counseling. A P&A staff person was subpoenaed to juvenile court and
testified about the failure of the school to adequately serve this youth. The judge
dismissed the case saying it was not a criminal matter and chided the state
attorney for prosecuting it.
IDAHO
Problem
Court staff were unaware of the legal rights that apply to youth with disabilities.
Solution
The P&A affected change in the practice of how defense attorneys and judges
apply IDEA to children whose disability related behavior results in being
criminalized. The P&A developed a Continuing Legal Education course on the
IDEA and the interplay with juvenile justice issues, and developed technical
assistance which the P&A provided through consultation statewide to public
defenders on disability related issues impacting children with mental illness.
KENTUCKY
Problem
A parent of a 14 year old male student with mental health related disabilities
contacted Kentucky P&A because the student was banned from attending school
by a juvenile court judge after having behavior problems there. The student was
placed in a psychiatric residential treatment facility (PRTF) but a managed care
organization denied continued services through the PRTF after two weeks. The
juvenile court judge placed the student in foster care in an effort to ensure
continuation of services. Behavioral concerns continued, and the student was
removed from foster care and placed in a juvenile detention center. It took
months for student to be returned home. But when he returned home, he was
ordered to attend an alternative treatment program. Behavioral concerns
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continued, and the student was ordered to stay at home and receive education
services there.
Solution
There was no evidence that student could not attend school with supports. P&A
worked with student and parent to see that student received appropriate
wraparound services to stay in the community. P&A spoke with the parent and
student about strategies and all agreed the juvenile court order needed to be
lifted. In preparation for this, P&A spoke with Director of Special Education and
scheduled an IEP meeting. At the meeting, the team agreed that if the court
order could be lifted the student would be integrated back into school. P&A filed
a motion with the court and the judge lifted the ban.
At the end of court, parent, school district, and P&A staff made plans to return
him to school. An IEP meeting was scheduled and held. The plan discussed at the
end of court was made part of the IEP. Student was returned to school in a
staggered manner.
MARYLAND
Problem
A seventeen year old African American student was arrested at school 9 times,
and was handcuffed and restrained. His behavioral issues in school began in first
grade. Despite these continued problems and a clear complexity to their cause
(including evidence of both emotional disability and Traumatic Brain Injury), the
district continued to draft IEPs that only addressed his Attention Deficit
Hyperactivity Disorder (ADHD) and that were not effective. Despite numerous
suspensions and arrests, the district did not revise his Behavior Intervention Plan
and at his triennial IEP review, did not order an educational or psychological
assessment. Instead the district had him arrested by the school resource officer.
Ultimately, he was placed in detention, due to the school based arrests and
referrals to Department of Juvenile Services.
Solution
The P&A filed a complaint with the U.S. Department of Justice, the resolution of
which is pending.
MASSACHUSETTS
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Problem
A 16 year old African American girl with mental health disabilities was enrolled
as a special education student in a fully segregated public high school for
students with mental health disabilities. She has been attending segregated
schools in her school district since middle school because of behavioral problems
related to her disabilities. In the fall of 2013, when she was seven and half
months pregnant, after an altercation with a fellow student, she was arrested by
a school resource officer. During the course of arrest, the police officer grabbed
her, ripped her shirt in the area of her abdomen, and threw her down on her
stomach against a table in the cafeteria. The officer, while handcuffing her, held
her against the table on her stomach and pushed his arm into the back of her
neck. Once she was handcuffed, the officer escorted her to his police car. As the
officer escorted her down the school hallway to the door, he continually pushed
her in her back making her unsteady on her feet in what he later described as a
“follow-along” technique.
The police officer also later stated that he was unaware that she was pregnant
when he arrested her. He stated he thought that she was “fat.” The student was
not offered any medical care immediately following the arrest. It was not until
several days later after she complained of feeling pain that she received a
medical exam.
Solution
As a result of legal advocacy, the girl was transferred to an integrated high school
program on the campus of a local community college. In addition to taking high
school courses, she is also able to take community college level courses for
which she can use the credits that she earns toward her college degree. The
student is now completing her senior year in high school and hopes to graduate
soon.
NEW HAMPSHIRE
Problem
Children in New Hampshire were being referred to adult court and did not have
access to counsel, even In cases with several consequences.

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Solution
DRC was instrumental in getting a Juvenile Justice reform package passed
through the legislature. The comprehensive legislation raised the age of majority
from 17 to 18, and assured that all children with a mental illness have access to
counsel.
OREGON
Problem
A mother who is not fluent in English contacted the P&A about her son, a 16year-old boy with an intellectual disability, because she believed that the school
blamed the boy for things other students put him up to. An interaction with two
classmates at a park led to him being placed in juvenile detention. He did not
understand the charges.
Solution
The P&A reviewed his records, helped him apply for Developmental Disability
(DD) and mental health (MH) services, informed his public defender of his low IQ
score and lack of intent, and advocated for a more appropriate interim
placement. The P&A helped devise a supervision plan to present to the court,
and he was released into his mother’s custody. He was found eligible for DD and
MH services. The school district complied with all evaluations the P&A
requested, including a behavior and security plan, and a new IEP was developed.
His mother enjoys a good working relationship with the IEP team now that a
Spanish interpreter is always at the table. All charges were dropped after two
assessments both showed the client’s lack of intent.
RHODE ISLAND
Problem
An eleven year old special education student was being threatened with an
arrest warrant and extradition to another state regarding an incident that had
allegedly occurred with an aide on a special education school bus. The boy had
been receiving special education in the other state and his alleged behavior had
been determined to be disability-related.
Solution

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The P&A collaborated successfully with the juvenile public defender from the
other state for the charge to be discontinued and dismissed, and then referred
the case to that state’s P&A for review regarding the criminalization of disability
related behavior.
TENNESSEE
Problem
A sixteen-year-old youth diagnosed with agoraphobia, major depressive disorder
with psychotic features, post-traumatic stress disorder, and social phobia had
been referred to the juvenile justice system by his school due to a disability
related behavior. The school filed truancy charges for excessive absences against
client, despite his record of excused absences and his mother’s effort to work
with the school to get client placed on homebound services.
Solution
Due to P&A work during in a juvenile proceeding, a client's charge was
dismissed, and he was able to avoid being placed in state’s custody. The P&A
conducted interviews, obtained school records including attendance records,
disciplinary records , special education records , copies of submitted absence
excuses from the school, and letters from client’s health care providers.
In preparation for client’s court appearance, the P&A contacted the ADA
Coordinator assigned to the county and requested courtroom modifications.
DLAC requested that the courtroom be cleared of all nonessential persons during
client’s hearing due to his anxiety and the fact that he had missed two previous
court appearances because of his agoraphobia. The court granted DLAC’s
request and cleared a very crowded courtroom in order to leave only individuals
related to client's case. As a result, client was able to successfully attend his
hearing. The judge was pleased with his progress and dismissed the truancy
charge because he had been attending the special day school with no absences
since the beginning of the current school year. As a result, client was able to
avoid being placed into the state’s custody and concentrate on obtaining an
education that meets his needs.
TEXAS
Problem

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A 10 year-old student diagnosed with Attention Deficit Hyperactivity Disorder
who exhibits physical aggression in both the school and home settings was
referred to the P&A. The boy was enrolled in 5th grade at a public elementary
school where he had been restrained six times in the previous month due to
hitting his teachers. The school had referred him to a Disciplinary Alternative
Education Program (DAEP) and was regularly calling the police, who issued
tickets and referred him to the juvenile court. Despite the deterioration of his
behavior in school, they had not conducted a Functional Behavioral Assessment
in eighteen months or provided behavioral services.
Solution
The P&A represented the boy in a series of Individualized Education Program
(IEP) meetings and attended juvenile court with the family to provide technical
support to his defense attorney on disability-related issues. Through the IEP
process, the P&A kept the boy from being sent to the alternative program,
ensured that new independent evaluations were conducted, and that a plan was
developed that allowed the boy to attend school successfully without continued
restraints.
WISCONSIN
Problem
Court staff did not sufficiently understand the rights specific to children with
disabilities in the juvenile justice and child welfare systems.
Solution
The P&A advocated for eligible children with under state court supervision (both
child welfare and juvenile justice) through ongoing training and support of court
staff and agencies who are responsible for enforcement of federal rights, to
increase their understanding of applicable legal authorities.

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IV. Conditions
Once in the System, They Are Not Treated Humanely nor Provided the Services They Require
Correcting Inhumane Conditions and Rights Violations for Youth in Custody
Due to the flagrancy of some violations and, on some occasions, written policies and unwritten
practices that are clearly contrary to law, it is not unreasonable to conclude that youth in
custody have few rights. Yet, that could not be further from the truth. A number of legal rights
apply to youth with disabilities in prisons, jails and juvenile detention facilities, which advocates
can employ to keep them safe from harm and to ensure that they receive the education and
services they require.
Rights are meaningless unless they are respected and, when necessary, enforced. During
monitoring visits and investigations of facilities where youth are held, P&As encounter and
address violations including but not limited to:
•
•
•
•

•

Failure to provide necessary substance use treatment; mental health treatment 48 health
care and education.
Inappropriate use of restraint, seclusion, use of psychotropic medication to control
behavior, and segregation/solitary confinement.
Inhumane conditions in general (inadequate nutrition, space, exercise, bed coverings;
heat; light; air, etc.). 49
Failure to accommodate youth with disabilities, including both physical (e.g. wheelchair
ramps, communication (e.g., sign language interpreters) and programmatic
accommodations (e.g. access to therapy groups and educational programming).
Failure to protect from physical and sexual abuse by peers and staff.

P&As are not alone in their recognition of the problem:
In a nationally representative sample of youth in juvenile facilities
conducted by the Bureau of Justice Statistics, 10% of incarcerated youth
reported that they had been sexually victimized by staff or other youth in
Department of Justice Activities Under the Civil Rights of Institutionalized Persons Act Fiscal Year 2010,
Department of Justice, (2010). Available at: http://www.justice.gov/crt/about/spl/documents/split_cripa10.pdf.
49
Some speculate that the increase in incarceration rates and the lack of services is due in part to the increased
use of privately run for- profit prisons, which have an incentive to reduce services to control costs. See: Benson,
Thor, The Americans Profiting from Private Prisons, Our Time Media, (May 9, 2015)
http://www.attn.com/stories/1616/executives-who-are-profiting-prisoners-privateprisons?utm_source=facebook&utm_medium=social&utm_campaign=stories-1616.
48

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the facilities…Between 65 and 70% of youth in the juvenile justice system
have a diagnosable mental health disorder; yet research widely shows
that services are inadequate or unavailable….The U.S. Department of
Justice reports that among all youth in confinement nationwide, more
than half are held in facilities that do not conduct mental health
assessments for all residents…In 2003, the U.S. Department of Justice
estimated that one-third of youth in juvenile facilities reported being held
in isolation as a punishment and that more than half of those children
were held longer than 24 hours. 50
This nation which incarcerates so many of its youth does not ensure that these youth are
treated humanely.
Sources of rights
A basic understanding of the rights youth with disabilities retain when they are placed into
detention,51 post adjudication confinement in juvenile justice facilities, adult jails and prisons
can be helpful in identifying and rectifying these violations.
The U.S. Constitution provides protections for youth in detention and in confinement through
the Fourteenth Amendment, Eighth Amendment, the Fourth Amendment, and the First
Amendment. In addition, federal statutes, state constitutions, and state statutes provide youth
important rights. Some of these rights include basic needs, such as safety, food, shelter,
healthcare and education, as well as basic civil rights and liberties.
One relevant federal statute is the Juvenile Justice Delinquency Prevention Act 52 (JJDPA). Its
core protection severely limits the placement of juvenile justice youth in adult facilities. First,
the JJDPA prohibits youth who are under the jurisdiction of the juvenile justice system from
being held in adult jails and lock-ups, except in very limited circumstances, such as while
waiting for transportation to appropriate juvenile facilities. Second, a “sight and sound”
requirement applies in the very limited circumstances where youth are permitted to be placed
in adult jails and lock-ups, limiting the contact these youth may have with adult inmates. Third,
the “de-institutionalization of status offenders” (DSO) core protection ensures that status

“Fact Sheet: Protecting Incarcerated Youth” National Juvenile Justice and Delinquency Prevention Coalition
(“Act 4 JJ”) (September 2014). Available at: http://act4jj.org/what-jjdpa/quick-facts
51
The term “detention” is sometimes used interchangeably with “confinement” in the context of juvenile justice.
Youth who are held but are not yet adjudicated (the equivalent of a finding of guilt for an adult) are “detained.”
Once adjudicated, they may be “committed” to a juvenile justice facility (or other term used in that state).
Detained youth somewhat have different rights than adjudicated youth, so it is important to make this distinction.
52
42 U.S.C. 5633 et seq.
50

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offender cannot be locked up, unless they violate a valid court order.53 Status offenders are
youth who commit crimes which would not be crimes, but for their age, such as truancy and
curfew violations. In some states, however, the valid court order exception has nearly
swallowed the rule. 54 This is one way in which truancy violators may end up incarcerated.
The Prison Rape Elimination Act (PREA) also applies to youth in juvenile justice facilities, in an
attempt to protect them from sexual assault by peers and staff. 55 In addition, the IDEA, 56
Section 504 57 and the ADA 58 apply to youth with disabilities in juvenile justice facilities in largely
the same manner as they do “on the outside.” The ADA and Section 504 provide protections
against discrimination based on disability in programming, in discipline, in housing, and
potentially applies Olmstead 59 rights (rights to community integration) to juvenile justice
systems.
In addition, government contracts with private prison and medical care contractors may require
conformance with certain rights. Voluntary participation by the facility in accreditation or the
JDAI 60 process may also help ensure attention to rights. These contracts or standards may
include reference to access to basic health, hygiene, and safety (including freedom from
inappropriate restraint, staff and peer abuse, and solitary confinement/isolation), religious
rights, nutritious food, regular exercise and fresh air, heat, clothing, visits, mail, reading
materials, medical and mental health care and access to courts and counsel.
The use of solitary confinement/isolation with youth warrants a special note. While still widely
used, recent research has shown that it has an exceptionally detrimental impact on developing
brains.61 Youth report having been placed in the “Box” for hundreds of days at a time, and tell
of the impact it has had, including the initiation of psychotic symptoms and other mental health

53
Exceptions exist in the law, and there is an effort to strengthen the JJDPA to limit these exceptions during its
current reauthorization.
54
Gately, Gary, New Report Finds Incarceration for ‘Status Offenses’ Still Widespread, Juvenile Justice Information
Exchange (April 10, 2015) http://jjie.org/new-report-finds-incarceration-for-status-offenses-still-widespread/.
55
In 2008 alone, 17,100 juveniles reported being sexually victimized. Proposed National Standards to Prevent,
Detect, and Respond to Prison Rape Under the Prison Rape Elimination Act (PREA), Department of Justice, (January
24, 2011) http://ojp.gov/programs/pdfs/prea_nprm_iria.pdf.
56
20 USC §1400 et seq.
57
20 USC §794 et seq.
58
42 USC §12101 et seq.
59
Olmstead v. L.C., 527 U.S. 581 (1999)
60
Juvenile Detention Facility Assessment: 2014 Update, Juvenile Detention Alternatives Initiative (Annie E Casey
Foundation), (2014) http://www.jdaihelpdesk.org/JDAI Practice Guides/Practice Guide 2.1- Juvenile Detention
Facility Assessment - Standards Instrument (2014 Update).pdf.
61
See Castillo, Lisa C., No Child Left Alone: Why Iowa Should Ban Juvenile Solitary Confinement, Social Science
Research Network, (February 21, 2015) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2490101.
https://www.aacap.org/aacap/Policy_Statements/2012/Solitary_Confinement_of_Juvenile_Offenders.aspx;

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effects. 62 In one recent Iowa P&A case, several girls were discovered having been placed in
solitary confinement for months at a time, girls who were wards of the state and were not even
adjudicated delinquent.

“Especially difficult” in Texas
“In the winter of 2010, the P&A was appointed to represent M.P., a foster youth with disabilities who was
incarcerated in a Texas Juvenile Justice Department (TJJD) facility in Brownwood. At that time, the judge
let the P&A know her case would be especially difficult. M.P. had behaviors that were assaultive, had
suicidal ideations, and had never maintained a residential placement without running away. She had been
a prostitute at the age of 9 and had been sexually abused for a number of years. She made no progress at
all in TJJD. After a year, the P&A successfully argued for her to be released from TJJD to a treatment
center so she could finally receive treatment she desperately needed. The placement went well for a short
period of time, but problems arose quickly and the P&A found a new placement for M.P. On her first day in
the new placement, she ran away.
During her time on the run, she contacted her attorney periodically to let him know she was safe. After
more than a month, she returned to her previous placement. However, she subsequently ran away again.
M.P. did return to care, but was two months pregnant by the time she did so.
The P&A located a placement for her that would offer her educational opportunities, on-site mental health
treatment, and parent training. This placement was significantly less restrictive than any M.P. had
experienced. She finally thrived and made true progress. Because of the freedom she had, she had no
inclination to run away.
The P&A further represented her in her IEP meetings with the local school district and worked with the
residential facility to find the appropriate mental health treatment and located a placement designed for
teen mothers. Her application was rejected due to her disabilities and criminal history, but the P&A
successfully appealed that rejection and M.P. moved to that facility when she was 7 months pregnant.
The P&A continued to work with M.P. until she was released from TJJD parole and we were sure she had
the resources she needed to be a successful parent. She is now thriving in her placement, finishing her
high school diploma, and remaining out of the justice system. The court released us from her case as a
result of M.P.’s success.”

For a powerful example in a youth’s own words about the impact of solitary confinement, see: The Box: Teens in
Solitary Confinement in U.S. Jails, Prisons and Juvenile Halls, YouTube, (May, 2015)
https://www.youtube.com/watch?v=jA1LkgyQ4Iw&feature=youtu.be.
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P&A Conditions Work: Problems and Solutions
ALABAMA
Problem
The P&A investigated an incident in which a seventeen year old girl with a
mental illness and a history of self-injurious behavior was placed in a prone (face
down) restraint after she placed an object in her mouth in an attempt to injure
herself.
Solution
The P&A issued an investigation report which detailed how the use of prone restraints
violate best mental health practices and can have deadly consequences. As a result of
the P&A’s advocacy, Department of Youth Services (DYS) issued a system-wide directive
prohibiting the use of prone restraints if staff suspect or confirm that an object is in a
student's mouth. Also, the agency prohibited all other restraint techniques that can
obstruct a person’s respiratory airway, including techniques wherein a staff member
places pressure on a youth’s back or places his or her bodyweight against their torso or
back. The directive further stated that all staff members who engage in these types of
restraint or supervisors authorizing these restraints shall be placed on immediate
disciplinary suspension. DYS made clear that an immediate investigation would ensue if
staff member utilized this type of restraint and that violations of these directives may
result in termination of employment. After a related complaint by the P&A, DYS
discontinued the use of a restraint chair.
In addition, the P&A conducted twenty monitoring visits in the state’s three
largest juvenile justice facilities, meeting with more than 700 youth. The
monitoring resulted in approximately 18 investigations into allegations of abuse
and neglect or other rights violations. Investigations included issues related to
mental health screening, assessment and treatment planning; inappropriate
suicide policy implementation; special education issues; and medical neglect.
Among other things, DYS and the P&A negotiated a new suicide prevention and
response policy.
AMERICAN SAMOA
Problem

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A juvenile was incarcerated at a detention center pending a competency status
hearing. While incarcerated, he was subjected to sexual abuse by juvenile sex
offender who was ordered by the court to not be placed in a cell with other
juveniles. Officials of the center at the time did not take precautionary steps
ensure the safety of the young man who has been diagnosed with bi-polar
disorder.
Solution
When investigated by the P&A, it was found that the center had few policies and
procedures in place for protection and safety, or for measures to be taken
following incidents of that nature. For example, the report to Child Protective
Services was done by the P&A rather than by program officials. As a result of this
investigation, policies are being developed but they still need to be approved by
the Office of the Attorney General and local legislature to be finalized. As such,
the outcome is pending.
ARKANSAS
Problem
A state juvenile assessment and treatment center had a number of serious
conditions problems.
Solution
Disability Rights Arkansas (DR-AK) issued a report on conditions and began to
collaborate with State Division of Youth Services to address need for
improvement. As a result, conditions at the facility improved, including increased
access to psychiatric care, replacement of abusive staff, new supports for youth
such as hiring of Certified Behavior Analyst, and new Clinical and Facility
administrators. In addition, the agency hired an internal investigator at the
facility for a more timely review of investigation of incidents occurring at the
facility, and moved toward discharge of residents who have extended length of
stay at the facility.
But, after the initial flurry of improvements, DR-AK identified serious ongoing
issues with mental health treatment, education, and use of punitive practices
that impact youth with disabilities. DR-AK continues to address these issues.

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CALIFORNIA
Problem
A young man with autism received developmental disability services his entire
life. On July 22, 2012, he had a behavioral episode during which he stabbed his
stepfather. His stepfather was treated and released from the hospital the same
night. The youth was seventeen and charged as an adult with attempted murder,
but found not competent to stand trial. Later, the regional center pursued a
commitment order to place him in a developmental center. The appointed public
defender opposed the placement based on his strong ties to the community, his
church, and family. The judge ordered the commitment, but did not allow
placement at the developmental center and, instead, ordered the regional
center to find and recommend a community placement. Meanwhile, when he
turned 18 years old, he was transferred to a juvenile detention facility. The youth
was housed in his own cell-block because, by law, he could not be around
inmates under 18, and due to concern for his safety if housed in the adult
facility.
Solution
The P&A, Disability Rights California, advocated on his behalf and he was
ultimately released from custody and placed in a community home. This is an
example of a larger systemic issue involving the power of regional center staff to
determine placement of certain youth, which the P&A is also addressing.
COLORADO
Problem
The P&A received multiple reports from the American Civil Liberties Union of
Colorado (ACLU), and the Colorado Juvenile Defenders’ Coalition (CJDC) about
seclusion practices at a juvenile justice facility that did not comport with state
law. The P&A and these entities entered into a collaborative agreement to
investigate the seclusion practices at the facility. During collaborative interviews,
P&A discovered that juveniles were being subjected to pain compliance
measures, known as pressure point control techniques (PPTC). Some of the
juveniles received injuries after being struck, kneed in their thighs, and given
nosebleeds after too much pressure was applied by staff below the nose and
above the upper lip on a tender pressure point.

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Solution
After investigating, the P&A sent a letter to the Colorado Department of Human
Services (“DHS”), informing it of the preliminary findings and requesting
immediate action to stop these illegal practices. As a direct response to this
collaborative effort, DYC changed its seclusion policy to ban the use of 72 hour
administrative seclusion. The parties have also been meeting regularly since July
2014 and although the substance of these meetings is protected by a
confidentiality agreement, the collaborative team have been giving DYC input on
the drafting of new regulations addressing these concerns.
Since the early 1990's, district attorneys in Colorado have been given great
discretion to direct file on a juvenile, causing youth to be treated as adults in the
system. The P&A provided information about the impact that District Attorneys'
discretion to direct file in adult criminal court has on juveniles with disabilities.
Related legislation gave juvenile defendants the right to a hearing to challenge
any direct file decision.
CONNECTICUT
Problem
The P&A was prevented from monitoring and investigating allegations of abuse,
neglect and rights violations in one of the state’s largest juvenile detention
centers.
Solution
As a result of legal action brought by the P&A, the P&A will be able to monitor
and investigate allegations of abuse, neglect and rights violations in this facility.
After negotiations continued for months with no progress, the P&A ended the
impasse by instituting a suit for injunctive relief in federal court. Once suit was
filed, county officials quickly indicated their willingness to settle. A settlement
was reached which provided the P&A access to residents of the facility for the
first time.
DELAWARE
Problem

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The State Department of Education (DOE) failed to provide a Free Appropriate
Public Education (FAPE) for a class of pre-trial detainees with disabilities.
Solution
The P&A filed a state complaint for a class of pre- trial detainees. A positive
finding resulted in systemic reform, including training for all staff and a review of
all affected students’ IEPs.
IOWA
Problem
During a monitoring visit, the P&A encountered three students removed from
school and confined in concrete isolation cells for up to 23 hours per day for
months at a time, with one resident being isolated for at least a year. The P&A’s
investigation revealed that the girls were not receiving any direct instruction
(educational services) as required by the IDEA while being confined.
In addition, the P&A discovered that all of the residents at the Iowa Juvenile
Home (IJH) had inadequate and inappropriate individual education plans,
behavior intervention plans, and transition plans, and significant inadequacies in
the comprehensiveness and quality of transition plans.
Solution
DRI filed a complaint with the state Department of Education (DE) in August 2013
against the school, the juvenile home, and the local education agency. Exemplars for
seven individual students were given to the DE which triggered an investigation into the
entire school population. The DE conducted a targeted compliance review based on
many of the allegations in the complaint and ordered the juvenile home to provide
compensatory education to all of the residents who had been in isolation cells from
August 2011 to October 2013. The P&A’s investigation also motivated the Governor to
create a task force to make recommendations on educational and other services at IJH.
LOUISIANA
Problem
A student with emotional disorders and developmental delays was incarcerated
in St. James Detention Center, and was receiving no special education services.

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Solution
The P&A contacted the detention center, and student was immediately moved
to another facility that was better able to meet his disability related needs. An
appropriate IEP was developed and implemented.
MONTANA
Problem
The director of a youth corrections facility called to request P&A assistance for a
17 year old girl, a detainee, who was exhibiting symptoms of psychosis and in
need of placement in a mental health treatment facility. A mental health
evaluation had recommended placement in a mental health facility, but she
remained in detention under court order with a juvenile delinquency petition
pending.
Solution
The P&A made calls and wrote a letter to the girl’s court-appointed attorney, the
attorney’s supervisor, the state public defender office, and the county attorney’s
office. These calls were not returned. The P&A advocate then discussed the
problem with the chairman of the Public Defender Commission. When the
advocate called to speak with the director of the detention facility, a residential
services specialist from the state licensing authority was present. The advocate
explained the problems and asked for assistance. The next day, the advocate
received a call from the Chairman of the Public Defender’s Commission giving
notice that the girl had been released from the detention center and placed in a
mental health facility. The transfer occurred immediately after P&A staff spoke
with the state licensing authority, and the facility was cited for inappropriately
housing a juvenile it was unable to treat. The citation said that the facility would
be closed if the girl was not relocated to a more appropriate placement within
three days.
NEW HAMPSHIRE
Problem
The New Hampshire Disability Rights Center (DRC) conducted an investigation
into the use of restraints at the Sununu Youth Services detention Center, New
Hampshire’s combined pre-trial detention center and commitment facility. The
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results of DRC’s second investigation of the Sununu Center revealed a pervasive
pattern of unnecessary and excessive force against children at the juvenile
facility. DRC sampled 109 children and found that 42% had been subject to
restraint one or more times during their stay at the Sununu Center. The types of
restraints included escorts, arm controls, shoulder restraints, standing restraints,
mechanical restraints, body wraps, takedowns, and supine and prone floor
restraints. Prone restraint is a dangerous practice because it impairs a child’s
breathing and exposes children to an unreasonable risk of death or injury. DRC
had previously recommended that the Sununu Center discontinue the use of
prone restraint but the investigation revealed that over half of restraint incidents
at the Sununu Center involved a prone restraint.
Solution
The P&A educated officials about the need for the passage of SB 396, a law that
prohibits the use of dangerous restraint techniques like the ones used at the
Sununu Center. The Sununu Center is making progress in terms of mental health
screening and treatment of youth in their care and reduction of restraint use.
NEW MEXICO
Problem
The P&A investigated PEAK Behavioral Health Services in Santa Teresa, NM, a 63
bed residential treatment facility for children and adolescents, some of whom
are referred through the juvenile justice system. The reports the P&A received
that led it to conduct this investigation included allegations of improper physical
restraints, injuries, verbal abuse, threats of physical abuse, and other rights
violations.
The P&A believed that PEAK staff were restraining residents far too often, in
non-emergency situations, and out of view of cameras. While PEAK
administration reports they have increased training in restraint and seclusion
and verbal de-escalation techniques, recent reviews of incident reports continue
to show that restraints occur even when there does not appear to be imminent
danger. Residents also continued to report abusive treatment by staff, lack of
medical attention, being denied access to the restrooms, issues around sending
and receiving mail, being denied phone calls to the P&A and Juvenile Probation
Officers, and other rights violations.

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Solution
The P&A sent several letters to facility management in response to these
concerns with information from the Children's Mental Health and
Developmental Disabilities Act. The P&A also recommended that PEAK work
with the Building Bridges Initiative (BBI) to bring it into the arena of best
practices with regard to restraints and positive behavior interventions. After
several months of recommending this program, Strategic Behavioral Health (the
company which operates the facility) agreed to implement the BBI program at
PEAK. BBI conducted two days onsite training for PEAK staff. The P&A is waiting
for the PEAK’s responses to its recent letters and continue to conduct site visits.
NEW YORK
Problem
The P&A has identified deficiencies in the educational programs offered to
students in multiple juvenile justice (JJ) centers.
Solution
The P&A met with the certifying agency to discuss the results of its investigation
to improve the delivery of services to students in these residential settings. The
agency identified corrective action that the agency took to address the lack of
Behavioral Intervention Plans (BIPs) for individuals residing in JJ Centers. The
P&A has conducted on-site investigations of one of the Centers that has adopted
new policies to implement BIPs and will be visiting other centers to determine if
similar policies have been implemented during the next fiscal year.
OHIO
Problem
The P&A visited an Ohio youth residential facility on several occasions and
interviewed any resident who wished to speak to the advocates. Many of the
youth complained of being forced to remain in their rooms by staff, who would
use their bodies to keep the door closed, even as the resident was trying to open
the door from the other side. The facility was not licensed to practice any form
of seclusion, and there had been problems in the past with the facility's use of
seclusion.
Solution
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The P&A reported the findings to the state agency. The agency conducted their
own investigation of the facility and found issues with documentation, lack of
trauma-informed care in treatment plan implementation, staff training, and
cultural insensitivity. The facility received a Plan of Correction (POC) for these
issues.
PUERTO RICO
Problem
A P&A advocate found inadequate facilities, water infiltration, and lack of
maintenance at a treatment center that is part of the state Administration of
Juvenile Institutions. At time of the visit, there were 19 individuals receiving
mental health services in the facility.
Solution
A meeting with the Director and P&A advocate resulted in action plan to address
issues presented. In another visit, the P&A corroborated that these issues had
been addressed. Due to the constant change in directors of this particular
institution, the P&A will continue to monitor this facility to guarantee that all
services are provided.
VIRGINIA
Problem
Benjamin spent the first half of 2014 in a restrictive isolation unit in a
Department of Juvenile Justice (DJJ) facility. He only received educational
services for one (1) hour or less per day. His guardian contacted P&A because
she was concerned that he was receiving inadequate educational services, as
well as inadequate mental health treatment. She reported that the frequent
placement in the isolation unit was endangering Benjamin’s mental health
stability.
Solution
The P&A intervened and successfully advocated for Benjamin's transfer to a
general integrated unit, and for him to receive regular education and mental
health services.

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WASHINGTON, DC
Problem
Children were being placed in institutional settings due to a lack of alternatives
to residential treatment facilities.
Solution
The P&A continued its involvement in creating a more robust community based
children’s mental health system by attending the District’s inter-agency
workgroup to create alternatives to residential treatment facilities. ULS also
worked in collaboration with the Children’s Law Center, Public Defender Services
of the District of Columbia, the University of the District of Columbia and
American University Law Schools to create training materials for attorneys in the
juvenile justice and child neglect systems regarding how to use Medicaid law to
advocate for community based mental health services.

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V. Re-Entry
Children with Disabilities Are Detained More Readily, Remain In the System Longer Than
Other Children, and Are Deprived of the Services Necessary to Prevent Recidivism
Successful Re-Entry: Post Incarceration
The purpose of rehabilitative juvenile justice programming is to prevent recidivism and allow
the youth to rejoin his or her community successfully upon release.
Some factors that improve a youth’s chances of success upon release include:
•
•
•
•
•
•
•

•

A clear residential plan, where he or she will live, and with whom.
Meaningful and respected involvement of the youth in all aspects of treatment,
transition and discharge planning.
The youth has maintained contact with family, community, and positive peers.
A receiving school placement that will accept credits earned while in custody,
that has access to the youth’s educational records.
Continuation of any mental health, medical, and substance abuse treatment
Ready access to other community based services.
For youth who are also in the child welfare system, access to V-9 63 and other
services to meet the needs of youth transitioning out of the child welfare
system.
For youth with an IEP, IDEA transition planning and timely records transfer.

Unfortunately, even for youth who were are never formally adjudicated, their home
communities and school districts do not always provide an enthusiastic welcome to them upon
return. Studies show that nationally, as many as two-thirds of youth eventually drop out of
school after being involved in the juvenile justice system, due to these types of barriers. 64

Pokempner, J. Transition Planning for Youth with Disabilities in the Child Welfare System, Juvenile Law Center,
2013. Available at: http://www.jlc.org/resources/publications/transition-planning-youth-disabilities-child-welfaresystem.
64
Vol. 32.4 Gagnon, Joseph C., et al., Juvenile Correctional Schools: Characteristics and Approaches to Curriculum,
18 673-696 (2009). Vol. 43.4 Gagnon, Joseph C., State-Level Curricular, Assessment, and Accountability Policies,
Practices, and Philosophies for Exclusionary School Settings, 206-219, (2010). Vol. 55.1 Gagnon, Joseph, C., et al.,
Secondary Psychiatric Schools: Characteristics and Approaches to Curriculum, 42-52 (2010). Vol. 36.1 Gagnon,
Joseph, C & Barber, Brian, Characteristics of and Services Provided to Youth in Secure Care Facilities, 7-17 (2010).
63

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On December 8, 2014, the U.S. Department of Education released a guidance package on
correctional education that is useful to advocates doing conditions and re-entry work. 65 It
recommends, among other things, that the responsible agency:
•

•

•

•

Immediately upon entry of a youth into a juvenile justice residential facility, create
individualized prerelease plans in partnership with the youth and his or her family that
identify action steps and support services to ensure reenrollment in a community school
and reduce the likelihood of re-arrest or reoffending.
Prior to release, offer additional formal learning opportunities for the youth that are
grounded in evidence- and practice-based service models and focused on social,
emotional, and behavioral skill development, especially for youths with mental health
conditions.
Utilize a comprehensive approach to reentry that includes individualized reentry plans,
vocational and life skills training, behavior management systems and direct academic
instruction.
Clarification that students in juvenile justice facilities are eligible to receive Pell Grants.

There has been promising recent research on best practices for re-entry programming.66 While
there are fewer clear legal tools for advocates to use, there are approaches that can help
ensure that youth have access to available services upon release.

Correctional Education in Juvenile Justice Facilities, U.S. Department of Education, (January 7, 2015)
http://www2.ed.gov/policy/gen/guid/correctional-education/index.html.
66
Muller, Eve, Reentry Programs for Students with Disabilities in the Juvenile Justice System: Four State
Approaches, George Washington University: In Forum, (December 2011)
https://heath.gwu.edu/files/downloads/reentryprogsforswdinthejuvenilejusticesystem_fourstateapproaches.pdf.
Altschuler, David & Bilchik, Shay, Critical Elements of Juvenile Reentry in Research and Practice, (April 21, 2014)
http://csgjusticecenter.org/youth/posts/critical-elements-of-juvenile-reentry-in-research-and-practice/. Nellis,
Ashley, Back on Track: Supporting Youth Reentry from Out-of-Home Placement to the Community, Juvenile Justice
and Delinquency Prevention Coalition, (2009)
http://www.sentencingproject.org/doc/publications/cc_youthreentryfall09report.pdf.
65

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P&A Re-Entry Work: Problems and Solutions
HAWAII
Problem
Hawaii’s juvenile justice system, like many, did not appropriately address the
needs of youth re-entering the community after incarceration.
Solution
The Hawaii P&A provided substantive education to the legislature during the
process of developing legislation to reform Hawaii’s juvenile justice system. The
resulting bill has since passed, which included the following improvements for
youth with disabilities (inter alia): concentrating secure bed space on serious
juvenile offenders and strengthening disposition, adjustment, diversion, and
services available for juvenile offenders. The bill improves the system by
increasing interagency collaboration, improving the probation and parole
systems, creating reentry plans for all youth; and coordinated services plans for
youth while they are in custody. The bill may be found at
http://www.capitol.hawaii.gov/session2014/bills/HB2490_CD2_.pdf
IDAHO
Problem
An 18 year old Caucasian male dually diagnosed mental illness and
developmental disabilities contacted the P & A for assistance with his impending
discharge from the Juvenile Corrections Center (JCC). JCC staff were arranging
services for him upon his release, but were neglecting to address his mental
health needs on the advice of the developmental disability agency (DDA) they
had secured to provide follow up services.
Solution
The P & A contacted JCC and provided information on the client’s right to choose
his care providers, as well as the need to address both his mental health in
addition to his developmental disabilities. Per JJC policy, reintegration providers
must observe and not infringe on the rights of offenders to participate in their
programs. P&A staff attended his transition meeting to ensure the team was
made aware of the client’s right to direct services of his choice and interests as
required by Medicaid rules and JJC policy. As a result of P & A intervention, the
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client’s rights to choose his providers, and receive services that met all his needs,
were restored. Upon discharge from the facility, the client will be receiving
services for both MI and DD from providers of his choice.
KENTUCKY
Problem
An 18 year old white male with a diagnosis of Obsessive Compulsive Disorder
(OCD) was in a juvenile justice facility due to charges of criminal trespassing and
robbery. He wanted to return home to live with his mother and to complete his
diploma upon release. His Department of Juvenile Justice (DJJ) worker told the
youth that it was doubtful that he would ever return to his home community,
and certainly not to his home. The worker also told him to get a GED, rather than
pursing a general education high school diploma.
Solution
After P&A made a number of visits with the student, his mother, facility staff,
and the DJJ worker, an appropriate discharge plan was developed that allowed
him to return home to live with his mother, and to be enrolled in his former high
school. The P&A provided the student’s mother with educational information,
employment information, and other resources that were available in the
community in his home town. He continues to thrive at home and at school.
MINNESOTA
Problem
A teenager with mental health needs was placed on probation. He was then
moved from a group home to a juvenile facility until he finished high school.
Four weeks prior to the end of the school year, the school district pressured the
client to sign papers that would discontinue his special education services and
block him from graduation ceremonies. He spoke with the juvenile facility’s
social worker, who contacted the P&A.
Solution
The P&A advised the client and his social worker to sign “no” to the
discontinuation and request a meeting with the facility, the school, and his
adoptive parents. The P&A won the school’s agreement to continue services
until the end of the school year so the client could participate in graduation with
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his classmates. The P&A also prompted the school to work with other agencies
to develop a discharge plan and transition services to enable him to return to his
hometown. As a result of this advocacy, adult mental health services and other
supports were arranged, an apartment was located, and several job interviews
were scheduled. The client graduated with his classmates, moved to an
apartment in his hometown, found a job and has adult mental health services
available to him.
SOUTH DAKOTA
Problem
A client with a disability who is eligible for special education services was due to
be released from a state juvenile corrections facility back to his home school
district. The home school district told the child’s parent that it would refuse to
serve him. Further, school staff led the parent to believe that the district would
try to have the client placed into another juvenile detention facility.
Solution
The parent contacted the P&A which reviewed the files and facility records and
conducted interviews with key persons involved. The P&A noted that the client
had successfully completed all required elements of the program at the facility
and, having done so, he had done his time and should be released. The P&A staff
attended several meetings on his behalf with the district. After deflecting
suggestions such as having client attend a school in a nearby district, eventually
the home school district agreed to serve the child in the public school in the
client’s home town.
As a result, the juvenile corrections facility recognized that the local school
districts in the state have an active responsibility to provide education, including
IEP services, to students in their home communities. The facility also learned
that initial refusals from school districts may need to be challenged in order to
move students from facilities to their communities quickly and seamlessly when
detention is over. The facility involved is the largest in the state.
SOUTH DAKOTA
Problem

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A 17-year-old individual who had been placed in a youth correctional facility for
over one year was then transferred to a psychiatric residential treatment facility
(PRTF). The guardian expressed concerns about the individual's care and
treatment at the PRTF.
Solution
After the P&A’s involvement, there was more open communication between the
guardian and the juvenile corrections agent to address the guardian's concerns.
P&A staff participated in several conference calls between the guardian, the
PRTF, and the juvenile corrections agent to address the guardian's concerns. The
individual was eventually discharged from the PRTF back to her home
community and will now graduate from high school on time with her class.
VIRGIN ISLANDS
Problem
A young man, age 18, was incarcerated for a year, awaiting trial, and did not
receive educational services during this time. His parent wanted advocacy for
him to receive a Free Appropriate Public Education. The youth was released
from jail while awaiting trial and still was not receiving educational services.
Solution
P&A advocacy with Public Defenders Office resulted in the youth receiving
educational services at the Office of Special Education (per the Court’s Order).
The P&A attended the youth’s IEP meeting and a representative from vocational
rehabilitation (VR) services also attended to assist with the youth’s transition
from high school. Upon successful completion of summer school, he will have
enough credits to receive his diploma by the end of summer.
For his transition plan, a teacher will work with him to research various areas of
his interest to help him narrow down the area he will want to pursue. He now
has the application form to get enrolled with VR and they discussed him
attending the Skills Center to pursue a trade. He is eager to work and move
forward in life.

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CONCLUSION
Diversion from the juvenile justice system is the best approach for most youth with disabilities.
We can provide community based services to the vast majority of juvenile offenders who are
non-violent, saving secure facilities only for those youth who are truly in need of such
restrictive placements -- and only then for the amount of time necessary to ensure safety to our
communities. Recidivism can be reduced when we ensure that youth leave the system with
marketable skills, some hope, and when placement is unavoidable, a home and community that
welcomes their return.

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VI. Recommendations
Concrete Steps Systems and Policy Makers Can Make Now
CONGRESS
RECOMMENDATION
Congress should authorize and fund a Protection and Advocacy for Juvenile Justice Program to
help divert youth with disabilities from entering the juvenile justice system, investigate and
monitor conditions for youth with disabilities in the juvenile justice system, and ensure proper
return to the community with needed services and supports.
RECOMMENDATION
Congress should fully fund the statutes that provide services for this population, including but
not limited to Medicaid community based services, IDEA, and PREA.
RECOMMENDATION
Congress should include in the reauthorization of the JJDPA language that clearly and
specifically eliminates the Valid Court Order exception and prohibits the use of solitary
confinement and/or isolation for all juveniles, including those housed in adult settings.
RECOMMENDATION
Congress should require that schools identified as having elevated school-based arrest rates: 1)
lose the opportunity to use federal funds to employ School Resource Officers (SROs); 2) are
required to develop Memoranda of Understanding that ensure that SROs work is limited to
traditional police activities and not discipline of non- violent student behavior; and, 3) require
SROs in those schools to undergo training in specific, related topics, including but not limited to:
•
•
•
•
•
•
•

IDEA discipline requirements
Crisis management
Cultural competency and implicit bias
Data driven evidence based prevention (including such approaches as restorative
justice, Positive Behavioral Interventions and Supports)
De-escalation strategies
Understanding and responding to the effects of trauma
Culturally responsive practice

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States should establish similar requirements.
ADMINISTRATION
RECOMMENDATION
The U.S. Department of Education (ED) and Department of Justice (DOJ) should fully enforce all
provisions of Title VI, 67 Title IX, 68 the ADA, 69 Section 504, 70 and the IDEA, 71 including all
obligations under these statutes for youth in correctional facilities, so that education of youth in
these settings is equal to that provided to students in other public schools.
RECOMMENDATION
Representatives from the ED, Office for Special Education Programs (OSEP), Office for Civil
Rights (OCR), and DOJ, Civil Rights Division should coordinate their efforts regarding
enforcement of the statutes over which they have jurisdiction, so as to completely eliminate
disproportionality in juvenile justice referrals for all groups of youth currently over-represented
within the system, including but not limited to, youth with disabilities.
RECOMMENDATION
ED should enforce all schools’ obligation to report on School-Based Arrests and Referrals to Law
Enforcement. This has been a requirement in the Civil Rights Data Collection (CRDC) since 20092010, but school districts grossly underreport these data.
RECOMMENDATION
During the investigations and remedies phase of all investigations, ED and DOJ should ensure
the input of the full complement of community stakeholders on the structure and
implementation of the settlement.
RECOMMENDATION
Representatives from the ED, Office for Special Education Programs (OSEP), Office for Civil
Rights (OCR), and DOJ, Civil Rights Division, should eliminate the use of School Resource
Officers and other sworn law enforcement officers to enforce school discipline codes. Sworn
42 U.S. Code § 12101 et seq.
20 U.S. Code § 1681-1688
69
42 U.S. Code § 12101 et seq.
70
20 U.S. Code § 794 et seq.
71
20 U. S. Code § 1400 et seq.
67
68

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law enforcement officers’ role in school and at school functions should be limited to ensuring
the safety of members of the school community.
RECOMMENDATION
DOJ should ensure that PREA is fully implemented and that funding limitations are fully
enforced for states that choose not to satisfy its requirements.
RECOMMENDATION
ED and DOJ should expand the scope of their investigations to include youth in federal custody
(Federal Bureau of Prisons (BOP), Department of Homeland Security (DHS), Immigration
Detention and other federal programs).
RECOMMENDATION
The following student data must be publicly reported annually from every school and district
and disaggregated by socio-economic status, race, gender, disability (including IDEA and Section
504 eligibility), English Language Learner (ELL) status, and Lesbian, Bisexual, Gay and
Transgender (LBGT) ( to the extent available):
•
•

Data on youth who enter the juvenile justice system, and their ultimate academic and
attainment outcomes;
The number of youth referred to court, ticketed, and arrested while on the school
campus.

Recommendation
DOJ’ s Special Litigation Section should use the Civil Rights of Institutionalized Persons Act
(CRIPA), 72 PREA, 73 and other statutes and legal authorities to the fullest extent possible, to
ensure that juveniles are treated in a safe and humane manner, including but not limited to: 1)
Preventing sexual violence and violations of personal privacy; 2) Preventing the use of solitary
confinement; 3) Limiting the mixing of youth with adult populations to those rare exceptions
allowed by the law ; 4) Confinement of status offenders; 5) Ensuring access to adequate food,
rest, exercise, light, heat and other physical essentials and 6) Ensuring access to adequate
medical, substance abuse and mental health care.

72
73

42 U.S.C.A. § 1997e et seq.
42 U.S.C. § 15601 et seq.

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STATES
RECOMMENDATION
States should develop and support programs that provide training in the following rights, laws
and regulations: IDEA, 74 ADA 75 and Section 504 76 Title VI 77 and Title IX, 78 disparate impact
claims, harassment/hostile environment claims, Due Process rights applicable to all public
school students, and state specific civil rights laws, to the groups/professions listed below.
•
•
•
•
•
•

Probation officers
Juvenile Court judges
Prosecutors
Court Appointed attorneys representing youth
Public Defenders
Publically funded attorneys who serve youth

RECOMMENDATION
The training described above should address, where there is applicable state law, the juvenile
court’s authority to enforce the IDEA and other education laws against the school districts. See
Miss. Code § 43-21-621; Miss. Code § 43-21-151; Miss. Code § 43-21-105. Along this line,
training should address the rights of the student to file an affirmative defense of contributory
negligence or counterclaim for educational neglect. In states in which statutes do not currently
permit the filing of such an affirmative defense, counterclaim or claim, this option should be
considered. The ability of the juvenile court to hold the school districts accountable is critical to
ending the school to prison pipeline.
RECOMMENDATION
States should utilize a comprehensive approach to reentry that includes individualized reentry
plans, vocational and life skills training, behavior management systems and direct academic
instruction.
RECOMMENDATION

20 U.S. Code §1400, et seq.
42 U.S. Code § 12111, et seq.
76
29 U.S. Code §794
77
42 U.S. Code § 2000d et seq.,
78
20 U.S. Code § 1681
74
75

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States should ensure that immediately upon entry of a youth into a juvenile justice residential
facility, individualized prerelease plans are developed, in full and meaningful partnership with
the youth and his or her family, that identify action steps and support services to ensure
reenrollment in a community school and reduce the likelihood of re-arrest or reoffending.
RECOMMENDATION
States should ensure that prior to release, all facilities housing juveniles offer learning
opportunities for youth that are grounded in evidence- and practice-based service models, and
focused on social, emotional, and behavioral skill development, especially for youths with
mental health conditions.

LOCAL
RECOMMENDATION
School boards should evaluate the following within their district to ensure that they are not
perpetuating the disproportionate referral of youth to the juvenile justice system:
•
•

•
•

“Zero tolerance” policies and other school code elements that result in the removal of
youth with disabilities without consideration of disability related factors.
Methods of punishment that result in juvenile justice referrals for non-violent youth,
such as tickets and the use of school resource officers to enforce common disciplinary
violations.
Methods of punishment that have the effect of punishing youth for their disabilities,
such as truancy tickets for youth who are unable to attend school.
School districts should develop Memoranda of Understanding with their police
departments to ensure that school resource officers are not being used to enforce
school code violations. In order to help achieve this, school boards could adopt policies
consistent with the Consent Decree between DOJ and Meridian Municipal Separate
School District (e.g., the school district will only contact law enforcement regarding
matters of “unlawful activity” pursuant to Miss. Code § 37-11-29(6)).

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VII. Acknowledgements
This report was researched and written by Diane Smith Howard, Senior Staff Attorney at the
National Disability Rights Network. Curtis Decker, Executive Director, NDRN; Nachama Wilker,
Deputy Executive Director for Training and Technical Assistance, NDRN; Janice Johnson Hunter,
Deputy Executive Director for Legal Services, NDRN, and Eric Buehlmann , Deputy Executive
Director for Public Policy, edited the report.
Production was coordinated by David Card, NDRN Publications and Communication Specialist.
NDRN would like to give special thanks to Robert Fleischner of the Center for Public
Representation, James Tucker and Nancy Anderson, Alabama Disabilities Advocacy Program,
Wendell Hutchinson of Disabilities Rights Mississippi, Therese Yanan of the Native American
Disability Law Center, and Joel Greenberg and Chris Shank of Disability Rights Oregon for their
guidance, support and for reviewing a draft of the report.
NDRN would like to thank Max Dellheim, Yana Shkabrova, Juan Pilarte, and Jon Cochrane,
NDRN interns, for their research assistance.
Richard Ross (http://richardross.net/juvenile-in-justice) generously donated his photographic
images and the inspiration we draw from them, for their use in this report.
However, we are most indebted to the brave youth and their families who dare to challenge
the system, and to the P&As who do this work, day and in and day out, to protect their rights.
Without them, there would be nothing to report.

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APPENDIX A
Acronym List
ADA

American with Disabilities Act

ADHD

Attention-Deficit/Hyperactivity Disorder

BIP

Behavior Intervention Plan

BOP

Federal Bureau of Prisons

CAP

Client Assistance Program

CRDC

Civil Rights Data Collection

CRIPA

Civil Rights of Institutionalized Persons Act

DAEP

District Alternative Education Program

DD

Developmental Disability

DOJ

U.S. Department of Justice

DSO

Deinstitutionalization of Status Offenders

ED

U.S. Department of Education

FBA

Functional Behavioral Assessment

IDEA

Individuals with Disabilities Education Act

IEP

Individualized Education Programs

JJ

Juvenile Justice

JJDPA

Juvenile Justice Delinquency Prevention Act

MH

Mental Health

NDRN

National Disability Rights Network

OCR

U.S. Department of Education Office for Civil Rights

OSEP

U.S. Department of Education Office of Special Education Programs

P&A

Protection and Advocacy Agency

PREA

Prison Rape Elimination Act

PRTF

Psychiatric Residential Treatment Facility

SRO

School Resource Officer

STPP

School to Prison Pipeline

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National Disability Rights Network

820 First Street, NE, Suite 740
Washington, DC 20002
Tel: 202.408.9514 • Fax: 202.408.9520 • TTY: 202.408.9521
www.ndrn.org
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