Special Education Advocacy: Integrating a Disability Analysis into Criminal Defense

• In Event: Data in Indigent Defense: Vulnerable Populations and Rehabilitation

Abstract

The disproportionate surveillance and prosecution of Black young people disrupts education and fuels the well-recognized “school-to-prison pipeline.” Juvenile incarceration reduces high school graduation rates and increases adult incarceration rates. In D.C., as many as two thirds of young people who leave the juvenile system drop out of high school. Nearly 70% of Black and Latinx folks in state prisons have less than a high school diploma. Importantly, students with disabilities are tragically overrepresented in D.C.’s juvenile legal system: between 80%-90% of students committed to D.C.’s juvenile justice agency have special education needs, compared to approximately 15%-20% of those in the community. These numbers are not unique to D.C.

These statistics are an outrageous reflection of the structural racism that shapes daily life in our nation’s capital. They illuminate the crucial intersections of race, disability, and education, which must be addressed when pursuing racial justice and equity in our criminal legal system.

Students ages 16-22 years old (emerging adults) with special education needs are slipping through the cracks in adult criminal court. Indeed, many young people in D.C. adult criminal proceedings have special education needs and no high school diploma or GED. Under federal law (IDEA), emerging adults with disabilities have the right to attend high school and receive special education services through the school year that they turn 21 years old (and in D.C., 22). Students retain this right regardless of their detention status. However, older, court-involved students are routinely denied education and the legal assistance to enforce their rights. Further, because of agency silos, judges often do not receive accurate information about an older student’s disability, education history, and needs. As a result, older students with disabilities are largely misunderstood and underserved. This leads to a further denial of education and school pushout.

Expanding access to special education attorneys in the criminal legal system can change this. Education attorneys contribute to the efficiency of the judicial process and provide information to assist judges in reaching more informed and just sentencing decisions. By integrating special education law into the juvenile and criminal contexts, special education attorneys can increase access to education, decrease future court contact, and reshape the education and justice landscapes for court-involved students with disabilities. Special education attorneys can play a critical role in preserving both the substantive education rights and liberty interests of young people. Having access to free special education legal services as part of a holistic defense team can disrupt this pipeline funneling older court-involved students with disabilities from the juvenile system into the adult criminal system.

In 2022, the D.C. City Council recognized the importance of having special education attorneys available to young people in criminal court and passed legislation requiring the D.C. Superior Court to establish a special education court-appointment panel in criminal court. In September 2023, the D.C. Superior Court established the “Special Education Panel Attorneys for Emerging Adult Defendants” (hereafter the Panel) in criminal court, and identified our organization, School Justice Project (SJP), as a primary provider of special education legal representation via the Panel.

Importantly, however, data trends reveal problems that cannot be seen at first glance. Unfortunately, there is a data gap for this group of students, which makes it difficult to define the exact size and scope of the population of court-involved, IDEA-eligible students. Highly mobile students who frequently weave in and out of the juvenile and criminal legal system, foster care, and schools often do not have a single point of contact, resulting in agencies’ inability to understand student needs and identify support. Thus, there is a lack of access to both aggregate and individual student-level data. Indeed, education agencies do not track adult students in secure facilities, and juvenile-justice data sets often only include students up to age 18. Criminal justice data sets rarely contain information on special education, as any education/workforce data centers on GED or workforce development. And the population of court-involved IDEA-eligible students is not tracked by D.C. Superior Court, nor any court-related agency. Similarly, when a student is arrested, there is no agency or court personnel responsible for determining whether they have special education needs. The lack of publicly available information is especially notable for certain statistics, such as the number of court-involved students with IEPs or who previously had an IEP.

This data gap means that the agencies working with these young people, as well as the advocacy community and the general public, are unable to see some of the more egregious systemic problems because there are no numbers available to raise a red flag. Moreover, this type of population “size and scope” data is crucial at the earliest stages of project development. For SJP specifically, we need this data to accurately measure the size of the population that the Panel needs to serve and to determine how many attorneys should be trained and available on the Panel. These data are also necessary to evaluate the effectiveness of Panel and to secure additional funding.

Through this presentation, we hope to share SJP’s special education advocacy model and provide an overview of how special education attorneys can be most helpful to defense attorneys and their clients. Next, we will present the nature of this “size and scope” data gap for IDEA-eligible court-involved students, as well as specific challenges we have encountered and strategies we have developed to collect necessary data. By sharing this information, we hope that other jurisdictions can develop and implement similar models of special education advocacy for emerging adult clients in criminal court.

Author

• Rachel Goodman, School Justice Project