Author: Laura Benjamin
Law Trainee at Project HEAL at Kennedy Krieger Institute
The Individuals with Disabilities in Education Act (IDEA) governs special education law in the United States. The IDEA guarantees students with a qualifying disability a free appropriate public education (FAPE). The IDEA also provides additional protection for students eligible for special education and related services. One of these protections involves the suspension or expulsion of a student with a disability. When a student with a disability is removed from their educational placement for more than 10 school days in an academic year, the local education agency (LEA) must conduct a manifestation determination review (MDR) meeting. An MDR determines whether the behavior leading to the student’s removal was substantially or directly related to their disability. If it is determined that the behavior was directly or substantially related to that child’s disability, then the team cannot change the student’s placement and must return them to school immediately absent special circumstances.
Students without disabilities and those not identified as a student with a qualifying disability, are not afforded suspension or expulsion protections. Without this protection, students are susceptible to chronic suspensions and potential involvement in the juvenile or criminal justice systems (depending upon the student’s age and the nature of the offense). Therefore, it is crucial to the success of a student with a qualifying disability that they be identified and subsequently protected by the IDEA.
Many students with unidentified disabilities are continuously removed from school for behaviors that would be protected if their disabilities had been identified. These protections are important because those behaviors may be protected under the IDEA. Suspension plays a key role in involvement in the juvenile and criminal justice systems. Studies have shown that “youth who received a school suspension were far more likely to report increases of offending behaviors than youth who were not suspended. As a result, suspended youth are more likely to have contact with the criminal justice system (e.g., arrest and incarceration).” This means that the identification and evaluation of students with disabilities is key to keeping them in school and out of the juvenile or criminal justice systems.
One pillar of IDEA that proves to be particularly important in protecting students with a disability is the child-find obligation. Child find requires that a State’s LEA identify, locate and evaluate ALL children with disabilities, regardless of the severity of their disability, who need special education and related services. While states must identify and evaluate all children suspected of having a disability, many students are identified too late or never identified at all. Depending on the level of support that schools fail to provide, some children may drop out of school, be expelled, or end up in the juvenile or criminal justice systems.
Take Maryland for example. The Juvenile Services Education Program (JSEP) is an independent education program within the Maryland Department of Juvenile Services (DJS) that provides education services to incarcerated youth. In fiscal year 2023, JSEP served 1,253 students. Of those students, 398 received special education services while incarcerated. In 2023, about 32% of incarcerated youth in Maryland had a disability that qualified them for special education and related services. Similarly, approximately 30% of youth in the Texas Department of Juvenile Justice receive identification for special education services.This is comparable to a study done in 2005 which found that around 33.4% of incarcerated juveniles in the United States had a disability that qualified them for services under the IDEA. Note that these statistics only represent identified children; the exact percentage of incarcerated youth with disabilities is likely much higher.
These data indicate that students with disabilities make up a large percentage of incarcerated youth; however, data alone does not offer a solution. During the 2022-23 school year, only 15% of public –school students received services under the IDEA. Yet, almost 35% of students receive special education and related services in the juvenile justice system.
Identification is key in keeping students with disabilities out of the juvenile and criminal justice systems. When schools identify students with qualifying disabilities earlier and provide support, those students are less likely to be suspended or removed from school. Proper support also leads to a less likelihood that students will participate in activities that could lead to involvement in the juvenile or criminal justice systems. Many students with disabilities struggle with various behaviors. However, under the IDEA, schools offer support to accommodate rather than punish students for their behavior. Punishing behavior, instead of helping students to manage it, can lead to poor outcomes for students. Students should not be subject to lifelong consequences due to a failure in the system to help them.
Laura Benjamin is a rising third-year law student at the University of Baltimore School of Law. She earned her undergraduate degree in political science and history from the State University of New York at Geneseo in Geneseo, NY. Laura entered law school knowing that she wanted to pursue education law, but after her summer 2023 internship under the education attorney at the Maryland Office of the Public Defender in their Juvenile Protection Division, she discovered her passion for special education advocacy. Laura has since interned at Disability Rights Maryland, Maryland’s Protection and Advocacy (P&A) agency, and Project HEAL at the Kennedy Krieger Institute. After graduating from law school Laura plans to continue to work in special education advocacy.
References
- 20 U.S.C. 1415(k)(1)(A)
- Hemez P, Brent JJ, Mowen TJ. Exploring the School-to-Prison Pipeline: How School Suspensions Influence Incarceration During Young Adulthood. Youth Violence Juv Justice. 2020 Jul;18(3):235-255. doi: 10.1177/1541204019880945. Epub 2019 Oct 31. PMID: 34262407; PMCID: PMC8277150.
- 34 C.F.R. § 300.111. (emphasis added)
- Maryland Department of Juvenile Services, Data Resource Guide Fiscal Year 2023. https://djs.maryland.gov/Documents/DRG/Data_Resource_Guide_FY2023.pdf
- https://www.tjjd.texas.gov/state-programs/education-services/
- National Center on Education, Disability, and Juvenile Justice. (2005, February). EDJJ Notes, 4
- National Center for Education Statistics. (2024). Students With Disabilities. Condition of Education. U.S. Department of Education, Institute of Education Sciences. https://nces.ed.gov/programs/coe/indicator/cgg.
