Students with disabilities do not lose their right to a Free Appropriate Public Education (FAPE) when they are detained by law enforcement. In fact, if the students are going to be detained for any significant length of time, the law enforcement officer responsible for the facility has duties under IDEA.  So if you have a facility in your district, you might want to have a conversation with whoever is in charge. Tell them about T.H. v. DeKalb County School District. 

That case is a class action seeking relief for students who have been detained in the county. The court held that the sheriff is responsible for Child Find with regard to detained students and had failed to provide a practical method for identifying students who needed special education services.  The court noted that the sheriff controlled access to the students and had blocked the school district from the students. This is an IDEA violation:

Because the Sheriff is solely responsible for managing DCSD’s access to students, any IDEA violation resulting from DCSD’s lack of access renders both DCSD and the Sheriff liable.

Evidence showed that even when access was provided, it did not call for full implementation of the IEP.  One plaintiff had an IEP that called for 360 minutes of instruction per week, but the jail only permitted 180 minutes.  The court found this to be a material failure to implement the IEP.

While the court held that the plaintiffs had established a violation of IDEA, their claims based on ADA/504 were denied.  The court held that actions taken by the sheriff in response to staff shortages and the pandemic were not “deliberately indifferent” to students with disabilities.

If you are having trouble accessing students with IEPs who are being detained, do not just shrug your shoulders and blame it on the sheriff.  Reach out.  Emphasize the importance of serving these students, and the consequences of not doing so.  Document your efforts.

This one was decided by the Northern District of Georgia and can be found on Special Ed Connection at 79 IDELR 196.

DAWG BONE:  THE RIGHT TO FAPE CONTINUES WHEN BEHIND BARS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: the firefighter’s wife wins one, loses one.