A Solution Hiding in Plain Sight: Special Education and Better Outcomes for Students with Social, Emotional and Behavioral Challenges The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Yael Cannon, Michael Gregory & Julie Waterstone, A Solution Hiding in Plain Sight: Special Education and Better Outcomes for Students with Social, Emotional and Behavioral Challenges, 41 Fordham Urb. L.J. 403 (2013). Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:12073910 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#OAP A SOLUTION HIDING IN PLAIN SIGHT: SPECIAL EDUCATION AND BETTER OUTCOMES FOR STUDENTS WITH SOCIAL, EMOTIONAL, AND BEHAVIORAL CHALLENGES† Yael Cannon,* Michael Gregory,** Julie Waterstone*** Introduction ............................................................................................. 405 I. Poor Outcomes for Students with Social, Emotional and Behavioral Challenges ...................................................................... 412 A. Low Achievement ................................................................. 412 B. Suspensions and Expulsions ................................................ 415 C. School Dropout ..................................................................... 418 D. Involvement in the Juvenile Justice System ....................... 420 E. Psychiatric Hospitalization and Institutionalization in Residential Treatment Centers ........................................... 422 II. Mapping Implementation Failures of IDEA’s Key Provisions ........................................................................................... 425 A. Child Find and Evaluation ................................................... 426 1. Key Child Find and Evaluation Provisions .................. 429 2. Implementation Failures of Child Find and Evaluation Provisions ..................................................... 436 † The ideas and arguments in this Article were previously presented at the Special Education Law Symposium, ‘‘Examining the IDEA in Theory and Practice’’ at Pepperdine University School of Law on February 10, 2012, and at the Disability Symposium, ‘‘Including Disability: How Legal Discourse Can Shape Life’s Transitions’’ at UCLA School of Law on March 22, 2013; we thank the participants in these conferences for their valuable input. We are also particularly grateful to Robert Dinerstein and Ruth Colker who provided extremely helpful feedback. Finally, we wish to thank Alexandra Bochte, Matthew Bernstein, and Kelly Davis for their excellent research assistance. Any errors or oversights that remain are ours. * Assistant Professor of Law, University of New Mexico School of Law; formerly Practitioner-in-Residence, Disability Rights Law Clinic, American University Washington College of Law. ** Assistant Clinical Professor, Harvard Law School. *** Clinical Professor of Law, Southwestern Law School. 403 404 FORDHAM URB. L.J. [Vol. XLI B. The IEP Process .................................................................... 447 1. Key IEP Process Provisions ........................................... 448 2. Implementation Failures of the IEP Process Provisions ......................................................................... 451 C. Related Services .................................................................... 458 1. Key Related Services Provisions ................................... 458 2. Implementation Failures of Related Services Provisions ......................................................................... 462 D. Behavior-Related Provisions ............................................... 466 1. Key Behavior-Related Provisions ................................. 467 2. Implementation Failures of Behavior-Related Provisions ......................................................................... 474 III. Prioritizing Implementation of Key IDEA Provisions ............. 479 A. Suggestions for Improving Implementation ...................... 481 1. Increased Teacher Training, Awareness of Disabilities and Related Social, Emotional, and Behavioral Challenges, and the Need for Ongoing Professional Development ............................................. 481 2. Ensuring Clarity and Timeliness in the Referral Process .............................................................................. 483 3. Securing Comprehensive Evaluations that Include All Relevant Parties ........................................................ 484 4. Collaboration with Parents Prior to the IEP Meeting ............................................................................. 485 5. Guaranteeing the Necessary and Relevant Parties Attend the IEP Meeting ................................................. 486 6. Ensuring Interpretation and Translation Are Available to Parents and Students ................................ 487 7. More Creative Use of Related Services ........................ 488 8. Empowering Parents through Meaningful Training and Information ............................................................... 488 9. Improved Understanding and Implementation of Behavior-Related Provisions ......................................... 490 B. Addressing Some Critiques of Special Education and of IDEA ................................................................................. 490 1. The Problem of Stigma ................................................... 491 2. Overrepresentation of Minority Students .................... 492 3. Low-Quality Programs ................................................... 493 4. Cost ................................................................................... 494 Conclusion ................................................................................................ 496 2013] HIDING IN PLAIN SIGHT 405 INTRODUCTION Anthony,1 a nine-year-old African-American boy, was asked by his teacher to write an essay about his family. In addition to the frustration he felt because of his difficulty spelling and writing in complete sentences, this assignment also triggered flashbacks to an event that had occurred a year earlier------he started picturing his father viciously beating his mother and leaving her lying on the floor helpless. Anthony remembered walking over to his mother after his father left the house and finding her unresponsive. He also recalled waiting for the paramedics after he dialed 911 and the chilling feeling he had after they arrived and pronounced her dead. As these events flashed through his mind, Anthony flew into a rage. He began yelling and cursing at the teacher. He flipped a desk over. Immediately, the teacher told the students to leave the classroom and called the school resource officer. Anthony was arrested and taken to Juvenile Hall. After remaining there for several days, he was admitted to a mental health institution for a few weeks, and then released to the group home where he had been living for the previous three months. As a result of this incident, Anthony faced exclusion from school and a delinquency case that could remove him from his community for up to a year. The desk incident was not an isolated one for Anthony. On numerous occasions, he had outbursts in the classroom where he threw books, pencils or other small objects. He was routinely suspended for fights with other students or for talking back to teachers and staff. Shortly after he witnessed his mother’s death, he was placed in the foster care system. In one year, he lived in four different foster homes. Through the services of the dependency system, he was diagnosed with Post-Traumatic Stress Disorder, Bipolar Disorder, and a learning disability, but these disabilities were never identified or addressed by his school. He still dreamed of being an engineer, a career in which he could put his superior math skills to 1. Anthony’s story and the many case stories recounted in this Article are the real experiences of actual client families with whom we have worked in our various legal clinics and legal services organizations. See infra note 2 for a description of the settings in which we practice. All of the families we discuss reside in low-income, urban communities, and the majority of them are African American, Latino, and other families of color. Many of the families we represent have immigrated to the United States and several have children who are English Language Learners. In each of the stories we share, the names that we use are pseudonyms. In some instances, we have also changed certain identifying facts to protect the anonymity of our clients where doing so does not alter the relevance of their experiences to the point we are making. 406 FORDHAM URB. L.J. [Vol. XLI use, but his impending school expulsion and incarceration only moved him further from that dream. Sadly, in urban, low-income, minority communities, stories like Anthony’s are not uncommon. Our work as clinical law teachers2 who------alongside our law students------provide direct representation to families in the special education system gives us the opportunity to see up close how institutional failures in the implementation of the Individuals with Disabilities Education Act (IDEA)3 play a major contributing role in poor outcomes for many students with social, emotional and behavioral challenges.4