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Current Litigation Approaches to Current Litigation Approaches to

Current Litigation Approaches to - PowerPoint Presentation

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Current Litigation Approaches to - PPT Presentation

Current Litigation Approaches to Disrupting the SchooltoPrison Pipeline for Students with Disabilities Alice Abrokwa National Center for Youth Law Lydia Brown Bazelon Center Maura Klugman Bazelon Center ID: 769277

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Current Litigation Approaches toDisrupting the School-to-Prison Pipeline for Students with Disabilities Alice Abrokwa | National Center for Youth Law Lydia Brown | Bazelon Center Maura Klugman | Bazelon Center Shira Wakschlag | The Arc

Outlining the problem

Presentation Overview Outlining the Problem Systemic Litigation Approaches Using the IDEA, ADA, & APA Individual Advocacy Approaches Effective Use of Media Q&A

Deinstitutionalization/Mass Incarceration Until early 1970s, many with I/DD & mental illness were institutionalized. Since then, states have closed/downsized many institutions # confined in psychiatric hospitals: 560,000 (1955) to 35,000 (2016) # confined in I/DD institutions: 195,000 (1967) to 21,000 (2015) Same period: mass incarceration. From 1971-2004: prison population went from 200K to 1.4M; jail population went from 130K to 700K.

Incarceration of People with Disabilities Because of state failure to provide community-based services (among other factors), PWD now incarcerated at alarming rates: 32% of prisoners/ 40% of jail inmates have at least one disability (vs 11% of general population) 20% of prisoners/ 31% jail inmates have a cognitive disability (vs <5% of general population) 10% of jail inmates have I/DD (vs 1.5% of general population) 20% of prisoners have serious mental illness (vs 4% of general population)Los Angeles County Jails (CA), Rikers Island (NY), & Cook County Jail (IL) are country’s largest psychiatric institutions.

School-to-Prison Pipeline Policies/practices that push students out of classrooms & into the criminal justice systems. Issues: Failure to identify/address academic, behavioral, or mental health needs; Students of color are overrepresented in special education and experience more segregation/worse outcomes; Special education services often inferior, in segregated settings Students with disabilities are: 2X as likely to receive out-of-school suspension than students w/o disabilities (13% v. 6%) 27% of African-American boys with disabilities & 19% of African-American girls with disabilities received at least one-out-of-school suspension 12% of overall student population but 25% of students subject to school arrests 20% less likely to graduate than peers w/o disabilities (61% vs. 80%)12% of student population but 58% of those secluded & 75% of those restrained

School-to-Prison Pipeline 85% of youth in juvenile detention facilities have disabilities, but only 37% receive special ed while in school. African-American students with disabilities are 18.7% of those receiving special education in schools but 50% of those receiving special education in correctional facilities. NCD report: “These statistics should lead to the conclusion that many disabled youth in the juvenile justice and criminal justice systems are deprived of an appropriate education that could have changed their School-to-Prison Pipeline trajectory .... IDEA can and should be an important part of the solution to the School-to-Prison Pipeline crisis.”

Deregulation Secretary DeVos/Education Department has:  Rescinded 72 guidance documents “to alleviate unnecessary regulatory burdens,” many impacting students with disabilities Allowed OCR to dismiss complaints that continue a “pattern of complaints” previously filed or “place an unreasonable burden” on OCR resources; prohibit dismissed complainants from appealing Rescinded guidance/rule aimed at ensuring that minorities and students with disabilities are not unfairly disciplined. Rule required states to identify districts with “significant disproportionality” in # of minority students channeled into special education services, segregated, or disciplined

Select Sources 2016 Dear Colleague Letter: https://sites.ed.gov/idea/files/dcl-on-pbis-in-ieps-08-01-2016.pdf Breaking the School to Prison Pipeline for Students with Disabilities, https://www.ncd.gov/publications/2015/06182015 Disabled Behind Bars: The Mass Incarceration of People With Disabilities in America’s Jails and Prisons, https://cdn.americanprogress.org/wp-content/uploads/2016/07/18000151/2CriminalJusticeDisability-report.pdf Diversion, Not Discrimination: How Implementing the Americans with Disabilities Act Can Help Reduce the Number of People with Mental Illness in Jails, http://www.bazelon.org/wp-content/uploads/2018/07/MacArthur-White-Paper-re-Diversion-and-ADA.pdfCommunity Living and Participation for People with Intellectual and Developmental Disabilities: What the Research Tells Us, https://www.aucd.org/docs/publications/2015_0723_aucd_aaidd_community_living3.pdf

Systemic IDEA/ADA Litigation

Helping Students with Disabilities Using the IDEA and ADA Individuals with Disabilities Education Act (“IDEA”) Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”)

THE IDEA Schools must provide students with disabilities a Free Appropriate Public Education (“FAPE”) in the Least Restrictive Environment (“LRE”). Special Education “[S] pecially designed instruction” that adapts, as appropriate to the child’s needs, “the content, methodology, or delivery of instruction …to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction . . . that apply to all children.” 34 C.F.R. § 300.39(b)(3). Related Services “[D] evelopmental, corrective, and other supportive services . . . required to assist a child with a disability to benefit from special education.” 34 C.F.R. § 300.34(a).

THE IDEA Many education cases use the IDEA to argue that schools are required to provide special education to students with disabilities in regular classrooms in neighborhood schools. Endrew F. v. Douglas County School District RE-1 , 137 S. Ct. 988 (2017) – “markedly more demanding” standard under the IDEA Schools must provide students with disabilities capable of keeping up with (or catching up to) their non-disabled peers with special education that enables them to meet grade-level standards and advance from grade to grade. Schools must provide the small group of students with the most significant cognitive disabilities who are not able to meet grade-level standards with the instruction and services they need to meet ambitious and challenging goals.

THE ADA Title II of the ADA prohibits disability discrimination in state and local programs, services, and activities. No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. s 12132. What this means in the school context  Schools must provide programs and services to students with disabilities in the most integrated setting appropriate. 28 C.F.R. s 35.130(d). (Section 504 largely tracks the language of the ADA)

OLMSTEAD Olmstead v. L.C. , 527 U.S. 581, 600-01 (1999)  The “unjustified institutional isolation of persons with disabilities is a form of discrimination.” Separating individuals with disabilities from their peers “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” and “severely diminishes life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Remedy  Expand community services and supportsWhat this means in the school context  Expand supports in neighborhood schools that would allow students with disability related behavioral needs to be in classrooms with their peers.

ADA versus the IDEA in Education Cases IDEA requires schools to provide FAPE to students with disabilities – “floor” of access to education. IDEA also emphasizes “individually designed services,” which can make it harder to get a class certified. After Wal-Mart, is there a certifiably common question of law or fact? ADA requires schools to make services equally accessible to students with disabilities. ADA can be used to challenge systemic discrimination by the State against students with disability related behavioral needs, in which students are segregated from their peers because of their disabilities .

What claims to bring? Will presence of an IDEA claim affect how ADA claim is evaluated? Consider how the lawsuit will be affected by the Supreme Court’s decision in Fry , where the Court held that a lawsuit seeking a remedy for the denial of FAPE requires administrative exhaustion even if brought under a different statute, including the ADA and Section 504. See Fry v. Napoleon Community Schools 137 S. Ct. 743, 754 (2017). Ask: do the ADA/504 claims seek relief otherwise available under the IDEA? (1) “could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library?”; and (2) “could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?” Id. at 756.Where exhaustion is required, does an exception to the exhaustion requirement apply?Would it be “futile” to pursue the administrative process?

Systemic APA/IDEA Litigation

A Case Study of School Push-Out: Shortened School Days in Oregon J.N. et al v. Oregon Department of Education et al, 6:19-cv-96 (D. Or. 2019) Students with challenging classroom behaviors related to their disabilities are routinely subjected to shortened school days throughout Oregon Some children with disability-related behaviors receive only an hour or two of instruction a day Many students continue to face suspensions or other classroom removals even while on a shortened school day schedule “[S] ome students fall so far behind academically and behaviorally while placed on a shortened school day schedule that their districts eventually choose to deny them access to any education at all. Students who are subjected to a shortened school day in lieu of receiving appropriate services and supports in school may face further consequences of having unaddressed behavioral needs, such as placement in residential facilities, institutionalization, or court-involvement.” Complaint at 19

The APA as a tool of civil rights litigation “Final agency action for which there is no other adequate remedy in a court” may be held unlawful if found to be: (A)  arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B)  contrary to constitutional right, power, privilege, or immunity; (C)  in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D)  without observance of procedure required by law; (E)  unsupported by substantial evidence . . . or (F)  unwarranted by the facts . . . See 5 U.S.C. §§ 704, 706

The APA requires an agency to… “show that there are good reasons” for its actions and provide “a reasoned explanation . . . for disregarding facts and circumstances” “take account of legitimate reliance on prior interpretation” “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made” See COPAA v. DeVos , 1:18-cv-01636 (D.D.C. 2018), Complaint at 34-37

Individual advocacy

Using media effectively

Using media effectively

QUESTIONS? AABROKWA@YOUTHLAW.ORG LYDIAB@BAZELON.ORG MAURAK@BAZELON.ORG SHIRA@THEARC.ORG