Handling a SCHOOL TICKETING Case

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Handling a SCHOOL TICKETINGCase

• TEXAS RIOGRANDE LEGAL AID, INC.
• School-to-Prison Pipeline Pro Bono Project

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What is the School-to-Prison Pipeline?

• A trend where students are funneled out of public
  schools into the juvenile and criminal justice
  systems

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What are stops along the Pipeline?

• SCHOOL DISCIPLINE suspension, disciplinary
  alternative school (DAEP) expulsion
• JUVENILE JUSTICE juvenile detention or
  probation, TYC
• CRIMINAL JUSTICE JP municipal court (school
  ticketing cases), adult prison

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Troubling Trends of the School-to-Prison Pipeline

• Passing the Paddle overreliance of Class C
  misdemeanor ticketing as a school discipline tool
• Over 275K non-traffic tickets issued to Texas
  youth every year
• Students are more likely to dropout once ticketed
• Increase in school police presence 1 for every
  250 kids, compared with 1 school counselor for
  every 437 kids
• No legislative requirement to track school-based
  citations? Existing (incomplete) data indicates
• Students of color and special education students
  are overrepresented
• Most tickets issued by school police are for
  non-violent misbehavior

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Common School Ticketing Offenses

• Failure to Attend School TX Educ. Code 25.094
• Simple Assault TX Penal Code 22.01
• Disruption of Class TX Educ. Code 37.124
• Disruption of Transportation TX Educ. Code
  37.126
• Disorderly Conduct TX Penal Code 42.01

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Juvenile vs. JP/Municipal Courts

• Most School Ticketing cases are heard in
  justice (JP) and municipal courts, which differ
  from juvenile courts in the following ways
• Level of Offense Class C misdemeanors
• Criminal, not civil like the juvenile courts
• Can result in a finding of guilt, rather than a
  finding that a juvenile engaged in delinquent
  conduct/conduct in need of supervision (CINS)
• No Automatic Appointment of Counsel
• Punishment up to a 500 fine, court costs,
  possibility of incarceration at age 17 for unpaid
  fines, community service and other requirements
• Confidentiality

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Example School Ticketing Charge Failure to
Attend School (FTAS)

• TX Educ. Code 25.094 defines Failure to Attend
  School as
• 3 or more unexcused days or parts of days within
  4 weeks
• 10 or more unexcused days or parts of days within
  6 months
• Schools cant write tickets to students ages
  10-11 or 18-21.
• Schools must
• 1) Adopt Truancy Prevention Measures, and 2)
  Tell the court, in the complaint, the measures
  failed and whether student is eligible
  for/receives special education.
• State law does not define truancy prevention
  measures, but you can argue that no measure, or
  only a token measure, was taken
• Questions to ask Was there a face-to-face
  meeting with the student and parent? with the
  counselor? Were any services not provided by the
  school that should have been, e.g. when a student
  was absent due to homelessness?

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Example School Ticketing Charge FTAS, contd

• School districts must excuse some absences (e.g.
  court appointment, religious holiday, medical
  appointments) and may accept parent notes
• State truancy laws may conflict with federal
  disability laws (Section 504, ADA) when a student
  has chronic medical issues
• Even when a childs truancy case is resolved,
  he/she may not be out of the clear because of
  The Ninety Percent Rule
• A student cannot earn class credit unless in
  attendance at least 90 percent of the days the
  class is offered (See Texas Education Code Sec.
  25.092 for exceptions and the appeals process)

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Example School Ticketing Charge Disruption of
Classes

• Texas Education Code 37.124 defines the
  Disruption of Classes offense to include
  Emitting a noise of an intensity that prevents
  or hinders classroom instruction.
• Note Such vagueness and room for discretion in
  the law leaves room for misuse and
  disproportionality.

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Practice Points

• Advise client to plead not guilty
• Talk to prosecutor ? try first for dismissal
  (prosecutor unlikely to dismiss outright w/a no
  contest/guilty plea)
• Always consider intent
• A finding from a special education proceeding may
  assist with your defense (e.g. a schools
  determination that the childs misconduct was a
  result of his/her disability). Ask the parent for
  special education documentation, if applicable.
• Inform prosecutor/judge of special education or
  other services the student is receiving/has
  available through the educational system
• You can argue that counseling services in school
  are more appropriate than court-mandated
  counseling
• Affidavits of Non-prosecution and Statements of
  Inability to Pay Costs or Fines can help
• If all else fails, go to trial!

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Practice Points, contd

• Think about criminal implications silence may
  be golden.
• Principals ask students to write statements
• No Miranda warnings required here
• Parents ask kids to say Im sorry
• Complication school discipline conference
  usually comes before the court date on the ticket
  and FERPA may not prevent later verbal
  communication between administrator and
  prosecutor
• SO, get involved as early as possible!
• To transfer case or not to juvenile court? Be
  careful what you wish for Juvenile court offers
  more services and confidentiality, but failing to
  comply with court orders opens up youth to
  consequences that are far more severe (drug
  testing, removal from home, etc.) than in
  JP/municipal court

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Trial Basics in JP/Municipal Courts

• Like other criminal trials, the State must prove
  its case Beyond a Reasonable Doubt
• Defendant has a right to subpoena witnesses and
  to review the States evidence against him/her
• Right a jury trial (jury made up of 6 people)
• State and Defendant each have 3 peremptory
  challenges
• Defendant has right to file motions (to invoke
  rule, produce witness statements and favorable
  evidence, motion in limine, etc.)

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TRLA Youth Guide Series

• For a detailed guide to defending children in JP
  and municipal courts, reference the 5 booklets in
  the TRLA Youth Guide Series
• Defending Against a Failure to Attend School
  Charge
• Defending Against a Disruption of Classes Charge
• Defending Against an Assault Charge
• Defending Against a Disorderly Conduct Charge
• Defending Children with Disabilities
• Available online at www.trla.org/youthrights

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Some policy solutions that have been proposed

• Eliminate school-based ticketing or, at least
• Adopt a school policy making ticketing the LAST
  resort
• Repeal Disruption of Class/Transportation laws
• Mandate campus/district-level ticketing data
  reporting
• Remove schools incentive to issue tickets for
  truancy
• Train police in de-escalation/crisis intervention
  training and how to work with special needs
  students
• Implement school-wide Positive Behavioral
  Interventions Supports (PBIS)
• Make school-based arrests and use of force more
  transparent

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Students with Disabilities

• May have both a Class C ticket and a special
  education case
• You can accept both cases (you dont have to be a
  lawyer to advocate for a student at school
  meetings)
• OR
• You can notify TRLA that there is a potential
  special education case so that we can advise the
  client

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Students with Disabilities

• Special Education Its Not What You Think
• Common disabilities linked to the pipeline
• ADHD
• PTSD
• Oppositional defiance disorder
• Severe anxiety or depression
• Bipolar disorder

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Individuals with Disabilities Education Act (IDEA)

• Regulations start at 34 CFR 300.1
• Specialized instruction and services that are
  necessary for a child with a disability to have a
  free appropriate public education (FAPE). 20
  U.S.C 1412(a)(1)
• May or may not include instruction outside of the
  regular classroom.
• Students must be taught in the Least Restrictive
  Environment (LRE)

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What Does FAPE Really Mean?

• Free Appropriate Public Education
• based on the students unique individual needs
• designed to enable the student to benefit from
  education
• the student must be making progress
• more than a minimal benefit is required for
  program to be appropriate
• district does not have to provide the best
  education or one designed to maximize a students
  potential

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Who is Eligible?

• Children ages 3 - 21
• Has one of the enumerated disabilities and, by
  reason thereof, needs special education and
  related services. 20 U.S.C. 14101(3)

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Eligible Categories

• Eligible disabilities include
• Intellectual disability
• Serious emotional disturbances
• Specific learning disabilities
• Hearing impairments, including deafness
• Speech or language impairments
• Visual impairments, including blindness
• Orthopedic impairments
• Autism
• Traumatic brain injury
• Other health impairments, such as a terminal or
  chronic disorder or ADHD

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What Are Special Education Services?

• Specially designed instruction to meet the unique
  needs of a child with a disability.
• Provided by public school districts at no cost to
  the family
• Includes instruction conducted in the classroom,
  home, hospitals, institutions and other settings
• Includes instruction in physical education
• Adaptive Physical Education (APE)

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What Are Related Services?
Related Services, provided by the district at no
cost to the family, can include

• Mobility services
• Medical services for diagnostic or evaluation
  purposes
• Health services
• Social work services
• Parent counseling and training
• Other
• See 34 C.F.R. 300.34

• Transportation
• Speech language pathology and audiology
• Interpreting
• Psychological services
• Physical therapy
• Occupational therapy
• Therapeutic recreation
• Counseling

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How are children identified?

• School may request that a child be evaluated
• Child Find requirement
• State must identify and evaluate ALL children
  with disabilities who are in need of special
  education and related services, including
  children with disabilities who are homeless or
  are wards of the state and children with
  disabilities attending private schools.
• Parents may request that their child be evaluated
• Independent Education Evaluation (IEE) is
  available if parent disagrees with the schools
  evaluation

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How does the child get services?

• An Admission, Review and Dismissal (ARD)
  Committee meeting is held. The ARD Committee
  includes
• Parents and student, if appropriate
• School district representative
• Special education teacher
• General education teacher
• Someone qualified to interpret evaluations
• Others invited by parent, student or school
• 34 C.F.R. 300.501

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Individualized Education Plan

• ARD Committee decides on the students
  Individualized Education Plan (IEP). The IEP is
  a document that includes - Childs present
  level of performance - Annual goals and short
  term benchmarks - Accommodations and
  modifications - Related services -
  Supplementary aids and services - Transition
  services (16 years old) - Deliberations

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IEP cont.

• IEP may also include
• Extended School Year (ESY) services
• Functional Behavior Assessment (FBA) and Behavior
  Intervention Plan (BIP)
• Autism Supplement

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Resolving Disagreements

• ARD Process parent may exercise right to a
  10-day recess
• Mediation - Texas Education Agency (TEA)
  provides this for free
• TEA Complaint must be filed within 1 year of
  the legal violation
• Due Process Hearing must be requested within 1
  year when parent knew or should have known of the
  legal violation
• Civil Action

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Manifestation Determination Review

• When a school wants to change a students
  placement for disciplinary reasons (10 days
  consecutive or pattern of removals)
• An MDR must be held within 10 school days of
  decision to change placement to determine whether
  the childs conduct was either
• Caused by or had a direct and substantial
  relationship to his/her disability OR
• The direct result of the schools failure to
  implement his/her IEP.
• If so, schools generally cant remove the child
  and must conduct a FBA and create, or review, the
  BIP.
• MDRs also protects kids not in special education
  if the school knew about their disability!

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Other Federal Disability Laws Section 504 the
Americans with Disabilities Act (ADA)

• Section 504 and the ADA apply to a broader group
  of students than the IDEA
• They are anti-discrimination statutes, whereas
  IDEA is a law that requires funding recipients
  (i.e. public schools) to provide services
• Must have a physical or mental impairment that
  impacts a major life activity.
• Unlike under IDEA, a students disability does
  not have to negatively impact his/her educational
  performance to be protected by these laws.

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504/ADA cont.

• Schools must give students with disabilities the
  opportunity to participate in or benefit from an
  aid, benefit or service that is given to students
  without disabilities.
• Less formal process 504 Plan does not have to
  be in writing (but do it anyway!)
• Good stop-gap while the school is completing the
  FIE
• Example 504 Plan accommodation School allows
  child with diabetes to snack in class to control
  blood sugar

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More 504/ADA

• Section 504 includes MDR protection
• Complaint resolution options
• Impartial hearing at school (Section 504)
• Office of Civil Rights complaint 180 day SOL
  (Section 504)
• Lawsuit 2 year SOL (ADA and Section 504)
• Student can get monetary damages that might not
  be available under IDEA

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Practice Points for Special Education Cases (and
negotiating in ARD meetings)

• Get school records (FERPA says school has 45 days
  to provide them)
• Know who the decision makers/allies are ? If you
  want certain people at the meeting, ask!
• Have an understanding of the family dynamics
  before entering the ARD meeting
• Contact the school districts attorney in advance
  to resolve/anticipate as many issues as possible
• Focus on interests, not goals (both yours and
  theirs), and know your clients BATNA
• Expand the pie (invent options)
• Try to engage everyone (people support what they
  create) and hold them accountable
• Document all major decisions/requests!!
• ASK QUESTIONS (even dumb ones) and dont assume
• Be flexible (waive unnecessary rules)

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Court Involvement

• Courts do not offer children receiving special
  education services the same due process
  protections as federal special education law
• But remember, INTENT must be shown! Provide
  prosecutor and/or judge with copies of favorable
  MDR findingsand ask for dismissal!

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A few helpful resources

• Texas RioGrande Legal Aid Youth Booklet Series
  (on defending children in JP/Municipal courts)
• (www.trla.org/youthrights)
• When My Child is Disciplined at School A Guide
  for Families, Texas Appleseed (www.texasappleseed.
  net)
• Its a New IDEA The Manual for Parents and
  Students About Special Education Services in
  Texas, Disability Rights Texas (www.disabilityrigh
  tstx.org)