By Randi Barrat

Common themes amongst foster youth, delinquency, school bias and push out, and disproportionate minority contact highlight the need for advocates and juvenile justice practitioners to focus on equal access to quality education for youth in foster care. One cannot ignore the implications that over 70% of all state penitentiary inmates have spent time in foster care according to the May 12, 2006 Select Committee of the California State Legislature. Identified as one of the most significant “protective factors” for youth in the system, education and connection to the education community serves a distinct function to mitigate abysmal employment rates, graduation rates, homelessness, and incarceration of current and former foster youth.[1] While zero tolerance policies in schools have increased disproportionate minority contact through the school to prison pipeline, schools remain the one stable and transformative factor in transcending racial and socio-economic barriers that have historically resulted in disproportionality and overrepresentation of minority youth in the system.

Consider the case of “Ed Domino”, as one thing leads to another in a crashing momentum that is impossible for a child to halt on his own.

Ed is a 9th grade foster youth, diagnosed with Attention Deficit Hyperactivity Disorder and Post-Traumatic Stress Disorder. He is enrolled in 2 periods of special education classes, study skills and Language Arts. He is suspended from school for defiance in History class during a writing lesson . He is also arrested and charged with misdemeanor disturbing the peace when the school resource officer intervenes. Ed is placed on informal probation as a dependent but is suspended one month later for criminal threats toward a student and battery when a campus supervisor escorts him from a classroom for disruption stemming from not having his textbook and supplies. The Court places Ed on electronic monitoring at a detention hearing on new charges. Ed is facing expulsion and his social worker has been given 7 day notice of termination at the group home. While attending continuation school half days, after his social worker waived Ed’s right to an expulsion hearing, Ed faces a  4 Count Violation of Probation petition for school absences, electronic monitoring out of range, and abscond, a defiance of group home directives. Ed is remanded and remains in custody pending adjudication, where his dependency is ultimately terminated, he is made a delinquent ward of the court and waits in custody for a delinquency group home. Ed has total of 16 days suspension for the school year, no behavior supports written into his IEP and no related mental health services. His last IEP was signed by group home staff…

Here is what statistics tell us about Ed: Foster youth are placed in special education at a much higher rate 30-52% percent than their peers at 10-12%, foster youth are twice as likely to be suspended and four times as likely to be expelled as non-foster youth. A foster youth changes placement an average of twice per year.[2] Over 50% of children in foster care have treatable mental health disorders. Students with disabilities who were from Black, Hispanic, and American Indian backgrounds were 67% more likely to be removed from school than White peers by a hearing officer on the grounds that they were dangerous. African American children make up 15% of the U.S. population, but 41% of the foster care population, while Native American children are 1% of the U.S. population but 2% of the foster care population.[3] What we know about Ed is that he has been pushed out of school and away from the independence a quality education can provide for him in the future. Moreover, Ed was pushed out of school based on risk factors that an entire statutory scheme of safeguards through special education law and foster care exist to insulate him from.

While researchers have not identified the exact cause of delinquency, numerous risk factors are commonly identified.[4] Studies indicate child abuse and neglect, ineffective parenting and discipline, family disruption, and dysfunction, exposure to violence, disabilities, school failure, inadequate housing and residence in high crime communities, place children at risk for delinquent behavior and incarceration.[5] It doesn’t take a study or stretch of the imagination to conclude that these are also factors in common for foster youth whether they cross over from dependency or are removed to out-of-home placement through delinquency. While foster youth are typically removed from family due to abuse and neglect, it is often overlooked that children in delinquency are removed from families under similar statutorily mandated child welfare findings and orders to be placed in foster care group homes as result of adjudication for a crime. Accordingly, delinquent youth placed in group homes are also foster youth.

In over 50 years post Brown v. Board of Education, juvenile courts finally recognize their unique role in facilitating equal access to education based on a child’s individual needs. Through Standards of Judicial Administration best practices and the promulgation of rules of court mandating that courts ensure each child has access to education that meets their individual needs, California has equipped advocates and juvenile court practitioners with the legal tools to impact disproportionate minority contact with juvenile justice.[6] The current movement in juvenile justice from punitive dispositions like detention to community based interventions represents a paradigm shift in the treatment of minors, focused on individual needs within major themes such as a child’s family life, educational and emotional needs, and community environment.

The movement toward a paradigm shift in the way children “in the system” are treated has begun to gain traction with the defense community, advocates, and courts. This urgency for change was recently echoed by the chief prosecutor for the United States, Eric Holder, exclaiming:

Why is it that, although African-American youth make up 16 percent of the overall youth population, they make up more than half of the juvenile population arrested for committing a violent crime?   Why is it that abused and neglected children are 11 times more likely than their non-abused and non-neglected peers to be arrested for criminal behavior?   And why is that so many of those who enter our juvenile justice system either can’t afford – or do not know to ask for – access to legal guidance…How we treat our children answers the question of who we are as a nation… Put simply, it’s time to broaden our approach to juvenile justice – and to ensure that sound research and respected analysis are a part of our decision-making process.   We know that we must transition from a prosecution-and-punishment model to a prevention-and-intervention paradigm.   We also must adopt a comprehensive plan of action – one that engages law-enforcement partners, medical professionals, social services providers, lawyers, parents, teachers, coaches, mentors, and community leaders.[7]

Dominating the development of evidence-based intervention programs as alternatives to incarceration and out-of-home placement focus on naturally occurring “protective factors” building resiliency to overcome the drain of risk factors.  Protective factors are those which decrease the likelihood that a youth will engage in criminal conduct despite the existence in his or her life of the one or more established risk factors.[8] They buffer risk factors, cushioning against negative effects to interrupt the process that channels risk factors and prevent initial occurrence.[9] Along with self-esteem, family-like relationships, one of the most powerful protective factors emerging from resiliency studies is a positive connection within the education community and academic progress.

In 2000, a study conducted by the National Council on Disability to assess 25 years of reports on federal monitoring and enforcement of the Individuals with Disabilities Education Act (IDEA, 20 U.S.C. §1400 et seq.) found that every state was consistently out of compliance with the IDEA. The study determined that “federal efforts to enforce the law over several Administrations have been inconsistent, ineffective, and lacking any real teeth”.[10] Currently, more than 6 million children receive special education under IDEA. [11] Yet, only one parent out of every one thousand children with an IEP, less than one percent, files an administrative complaint.[12]

With every state consistently out of compliance, one would be hard pressed to find that the de minimus use of the administrative process reflects satisfaction with public schools’ implementation of special education service. The above stated figure is gravely under representative of the violations of IDEA when perspective is gleaned from who actually comprises the less than one percent that pursues a due process hearing for violation of special educational rights and entitlements. Students with disabilities continue to have significantly lower household incomes than their non-disabled peers.[13] Whereas one fourth to more than one half of households of students with disabilities have annual incomes of $25,000 or less,[14] in actuality, the majority of families that file for due process are middle to upper middle income families.[15] Poor and minority children are unlikely to avail themselves of IDEA protections and administrative remedies.[16] Consequently, it is likely that an overwhelming majority of educational violations suffered by children from low income families go unredressed for families who do not have the resources to navigate the process. This perspective does not even contemplate the access for safeguarding these rights for a foster youth whose parents who have been accused of abuse or neglect and are reliant on court officers for advocacy.

For Ed, school will not change the story of abuse and neglect that brought him into the system. It will not fill the holes in normal healthy childhood development that were drilled by unhealthy environments or the instability of changing placements. But if Ed, who is required by law to attend school until his 18^th birthday, experiences a nurturing education community, in which his self concept becomes premised on positive educational progress and value to that community, he is empowered to curtail the momentum of the “domino effect” his status as a foster youth predisposes him to.  Juvenile court practitioners must embrace the paradigm shift and utilize these statutory  tools through zealous advocacy in court and in schools to advocate in the best interest of children.

Randi Barrat is an Assistant Public Defender in the Sacramento County Office of the Public Defender.   She can be reached at Barratr@saccounty.net and Randi.Barrat@gmail.com .