TEXAS RIOGRANDE LEGAL AID, INC.
School-to-Prison Pipeline Pro Bono Project
What is the
School-to-Prison Pipeline?
- A trend where students are funneled out of public
schools into the juvenile and criminal justice
systems
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

“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

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
* Effective 9-1-11, charges for these offenses should NOT be brought against a student who engaged in
the conduct when in the 6th grade or younger
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

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 can’t 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?

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 child’s 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)

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.

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
school’s determination that the child’s 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!
Think about criminal implications – silence may
be golden.

Principals ask students to write statements
 No Miranda warnings required here

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Parents ask kids to say “I’m 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
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
State’s 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.)
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:
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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

Eliminate school-based ticketing or, at least:
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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

May have both a Class C ticket and a special
education case
 You can accept both cases (you don’t 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

Special Education: It’s Not What You Think

Common disabilities linked to the pipeline:
▪
▪
▪
▪
▪
ADHD
PTSD
Oppositional defiance disorder
Severe anxiety or depression
Bipolar disorder

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)”
Free Appropriate Public Education

based on the student’s 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 student’s potential

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)
Eligible disabilities include:
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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
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)
What Are Related Services?
Related Services, provided by the district at no cost to the family, can
include:
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Transportation
Speech language
pathology and
audiology
Interpreting
Psychological services
Physical therapy
Occupational therapy
Therapeutic
recreation
Counseling
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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
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 school’s evaluation
How does the child get services?

An Admission, Review and Dismissal (ARD)
Committee meeting is held. The ARD
Committee includes:
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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
Individualized Education Plan

ARD Committee decides on the student’s
Individualized Education Plan (IEP).
The IEP is a document that includes:
- Child’s 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
IEP cont.

IEP may also include:
 Extended School Year (ESY) services
 Functional Behavior Assessment (FBA) and
Behavior Intervention Plan (BIP)
 Autism Supplement
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
Manifestation Determination
Review

When a school wants to change a student’s 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 child’s conduct was either:
▪ Caused by or had a direct and substantial relationship to his/her disability; OR
▪ The direct result of the school’s failure to implement his/her IEP.

If so, schools generally can’t 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!
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 student’s disability does not
have to negatively impact his/her educational
performance to be protected by these laws.
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
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
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 district’s attorney in advance to resolve/anticipate as many issues as
possible

Focus on interests, not goals (both yours and theirs), and know your client’s 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 don’t assume

Be flexible (waive unnecessary rules)

Reconvene if necessary

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 findings…and
ask for dismissal!

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)

It’s a New IDEA: The Manual for Parents and Students
About Special Education Services in Texas, Disability
Rights Texas (www.disabilityrightstx.org)