Lest any of you think I’m blowing this out of proportion…schools arresting special needs kids that is, consider this report by the Center for Law & Education, entitled “When Schools Criminalize Disability: Education Law Strategies for Advocates.” This downloadable document outlines strategies that parents, advocates and attorneys can use to defend students who find themselves being charged by the school system with a criminal offense.

Don’t get me wrong…children who are a danger to other children need to be removed to a place where they are not endangering others. Children who are presenting a clear danger to themselves, other children or teachers, need to be removed from the classroom setting. I can’t imagine any concerned adult who would view that differently. But arresting children with disabilities presents many concerns and poses many questions. One question it begs is “why/how did the child escalate to the point of becoming dangerous in the first place?” When a functional behavioral analysis is done on a child and the child’s disability is more clearly understood, school personnel can then provide positive behavior interventions before the behavior escalates to the point of danger. At least that’s how the system is supposed to work.

Yet, more and more statistics tell us that huge percentages of children in the juvenile justice system have disabilities…sometimes identified, sometimes not. And schools are calling upon the police as a way to transfer the responsibility for these children from the educational system to the criminal system. Consider what the CLE has to say in the introduction to its report:

IDEA prohibits school systems from unilaterally removing from their educational placement students with disabilities deemed disruptive or dangerous by school officials. In the years since IDEA, many school systems have achieved the same results by characterizing disability-related behaviors as criminal and involving the courts or the police. Often the in-school behavior forming the basis for the school’s delinquency petition or crime report is related not only to the child’s disability, but to the consequences of the school system’s own failure to provide appropriate education and related services.

This introduction rang true with me. In our due process case, our argument has been that not only are LuLu’s behavioral outbursts directly related to her disabilities, but that because the school system has both failed to identify many of her disabilities and has failed to provide services to help her gain an appropriate education, she is increasingly frustrated, which only exacerbates her in-school behaviors. Our attorney suggested that this was the case the very first time we discussed LuLu’s situation. I was skeptical, because I was so focused on “behavior only” and the backward thinking of “if she’d only be good, then she’d actually learn something.” Instead I should have realized that “if she didn’t have so many obstacles to learning that frustrated her so, she could better control her behaviors.” Sadly, what I’ve found out in the last several months is that we’re not alone in getting this thought-process wrong. And in believing the school was right. Granted, I was a bit skeptical when the school psychologist told me there was no real cause for alarm about my daughter’s auditory and visual processing scores being so low, because it was her behavior during the test (and her high level of frustration) that caused the scores to be so low.

“Couldn’t it be the other way around?” I asked. “Couldn’t it be that she’s so frustrated trying to take the test BECAUSE of the severity of her processing disorder?” I was assured by the school psychologist that her behaviors were causing it to look like she had auditory processing problems, not the other way around.

Meanwhile, behaviorally, LuLu was escalating and the school personnel working with her were becoming increasingly frustrated, angry and fed up with her behaviors. So when it “all came down” so to speak between us and the school, I had what I now know is a very legitimate concern that the school might decide to escalate things by calling in the police. I shudder to think of the traumatic impacts that would have had on my traumatized child.

No national data collections require school systems to report on the number of crime reports they file against students with disabilities, making it difficult to precisely gauge the depth and breadth of this problem.

So we really don’t know how often this happens. I do know from my own informal discussions with other parents that parents are frequently called and asked to pick their children up from school for behavioral issues (with or without the school actually suspending the child). This can be a precursor of more aggressive tactics to remove the child.

The CLE report was able to note the following:

Significant problems of school systems filing crime reports in the following states are reported by child advocates in these states: Alabama, Arizona, California, Connecticut, Florida, Georgia, Idaho, Kentucky, Massachusetts, Mississippi, New Hampshire, New Mexico, Oregon, Pennsylvania, Tennessee and Texas. Due process hearings at the US DOE/OCR involving schools filing crime reports exist in the following states: Arkansas, Florida, Georgia, Louisiana, Pennsylvania, South Carolina, Tennessee and Texas.

So, in this season of things to be afraid of…some frights are make believe, and some are unfortunately very real.