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A juvenile with autism charged for 243.6 for a fight with a substitute. Does a disability factor into decision made?

San Jose, CA |
Filed under: Education law

His individual education plan states that he has triggers and difficulty managing frustration when triggered.

Attorney Answers 2

Posted

Yes. He is entitled to a seperate hearing, prior to his school disciplinary hearing, to determine if the allegedly wrongful behavior was a manifestation of his disability. The juvenile prosecutor and judge should also take his disability into account in determining his situation there.

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Asker

Posted

Thanks for your help. He already had the manifestation determination meeting and it was determined that it is definitely a manifestation of his disability. Because the substitute was injured, he has a 45 day suspension during which he is attending a non-public school that is focused on behavior management. I am confused more regarding the juvenile prosecutor procedure. They are in the Orange County area, and the probation department told me that it is going through a screener right now, either to be sent to District Attorney or an informal process with the Probation Officers. Do you know how this process typically works?

Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

Have you checked to determine whether the substitute was qualified to deal with students with IEPs? If this goes to court, your attorney can get that information in the discovery process and develop it for your son's defense. In Juvenile Court, the probation office takes a much more active role through the entire process from start to finish, unlike adult court. They can put him on "informal probation" which does not result in a Petition (complaint in Juvie-speak) being filed. However, he'd be under reporting obligations with the probation department and the probation department's involvement in his life would be necessarily reported to the school. I would seriously consider getting him an attorney at this point.

Asker

Posted

Thank you so much for your feedback. I don't believe the substitute was even aware of his IEP needs, as he is fully mainstreamed at this point. The school said they cannot check to see if the substitute was aware of his IEP. He has positive reinforcement as a classroom accommodation, and speech/psych pull out services for autism. If that is the case, can the school be liability for the substitute's injuries? They said they provided the services, so they are not accountable. How/where would you recommend finding an attorney that specializes with education/criminal law in Orange County?

Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

Let me think about this one. But first, have you checked the AVVO website? Attorneys who do education law may also do criminal law or may have partners who do criminal work.

James Victor Kosnett

James Victor Kosnett

Posted

Yes. This case must be handled delicately, to get the best possible result. It is an interesting case which lends itself to negotiation and a creative solution.

Asker

Posted

I have looked at the AVVO website, but it's hard to know where to start since there's so many attorney listings! Would you recommend starting with education attorneys or criminal attorneys?

Helen Lou Marsh

Helen Lou Marsh

Posted

I would start with a criminal lawyer who works with juveniles. It might be helpful to also have an education lawyer work with you to make sure that all of the issues are addressed. The point regarding untrained personnel is potentially an important one. Also, there may be trained professionals at his non-public school who can help explain why your son is not culpable. Normally, students with autism are not violent, but they can be extremely reactive.

Asker

Posted

Thanks Helen, I definitely agree that they do not demonstrate pre-meditated violence, but are reacting to environmental triggers. He was also under a lot of stress due to finals that week and recovering from a cold, so he couldn't use the strategies he had learned to cope with frustration/problem solving.

Betsy J. Brazy

Betsy J. Brazy

Posted

Contact Tim Adams at Adams & Associates in Santa Ana, and please tell him that I sent you. His firm mostly handles special education, but is well-connected in Orange County. http://www.californiaspecialedlaw.com/index.html

Posted

Under the Individuals with Disabilities Edeucation Act, a school district must determine if the behavior of a child who has been identified as a special education student was a "manifestation of disability" before it can proceed with an expulsion or other long term exclusion from school. If he hasn't been identified as eligible for special education, he may still have some protection from disciplinary action if the school district had reason to believe that he was a child with a disability but failed to evaluate him. These questions are more complex than they appear from the general description of the issues. I would advise you to consult with an attorney experienced in special educaion law to determine your child's rights in the educational and criminal law forums.

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