The purpose of this memorandum is to inform you of a concern brought to the attention of the Special Education Office by the Arkansas Disability Rights Center pertaining to what appears to be over-referral of students to the juvenile justice system by the public schools. The specific issue of concern is the filing of a Family in Need of Services (FINS) petition when a student has exhibited challenging behavior(s) in the school setting. Data provided by staff of the Center in support of the contention that school districts are addressing student behavioral issues by routinely referring students to the juvenile courts do reflect a high number of such actions on the part of several school districts.
The Individuals with Disabilities Education Act (IDEA) and its implementing regulations at 34 CFR Sec. 300.529 provide that an agency (public school) can report a crime committed by a child with a disability to appropriate law enforcement and judicial authorities. Similarly, Arkansas Code Annotated 6-17-113 sets out the duty of a public school to report and investigate student criminal acts. However, these statutes do not authorize school districts to engage law enforcement and judicial authorities in order to circumvent any of their responsibilities under the federal IDEA.
During the development of a student's individualized education program (IEP), the IEP Team is required to consider, if appropriate, "in the case of a child whose behavior impedes his or her learning or that of others, strategies, including positive behavioral interventions, strategies, and supports to address that behavior." [34 CFR Sec. 300.346] A failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of free appropriate public education (FAPE) to the child.
Furthermore, for any student with disabilities whose misbehavior results in repeated short-term suspensions which accumulate to more than ten school days in the school year, or in long-term suspension/expulsion from school, the IDEA requires that the public school conduct a functional behavioral assessment and develop and implement a behavioral intervention plan to address the student's problem behavior(s). [34 CFR Sec. 300.520(b) & (c)]
Filing a FINS petition with a juvenile court in order to address the misbehaviors of a student with disabilities without having appropriately addressed the behaviors as set forth under the IDEA can be construed as using the FINS process to circumvent the requirements of the IDEA. While there may be cases where it is appropriate for a public school to file or support the filing of a FINS petition with a juvenile court to address the needs of a student and his family, it should be the exception and not the rule. However, the Special Education Office cannot support a practice of referring students to a juvenile court in lieu of making appropriate efforts to address challenging student behaviors, including the use of alternative programs/settings, if needed. The ADE Special Education Office strongly cautions all school districts against even the appearance of such conduct.