Juvenile Justice

10 posts

Catalyzing the Separation of Black Families: A Critique of Foster Care Placements Without Prior Judicial Review

By Kathleen Simon

Although decades of efforts have realized significant progress toward the goal of eliminating racial discrimination in the child welfare system, black children continue to enter foster care at rates that exceed their level of need. This Note explores how the standard practice of removing a child without prior judicial authorization has quietly contributed to this civil rights crisis by enabling racial bias to go unchecked in the placement decision-making process.

In an attempt to understand how state legislatures can ensure that risk, rather than race, informs foster care placements, this Note introduces an original analysis comparing the racial disparity rates in foster care entries among states. Based on the study’s finding that greater racial disparities exist in jurisdictions with flexible emergency removal laws, this Note recommends that states excuse pre-deprivation hearings only when taking the time to seek an ex parte court order would jeopardize a child’s safety.

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Why Ross v. Blake Opens a Door to Federal Courts for Incarcerated Adolescents

Issues Volume 51, Issue 2

By Nika Cohen

The Prison Litigation Reform Act (PLRA), particularly through its exhaustion provision, imposes significant obstacles on whether an incarcerated person may raise claims about conditions of confinement in court. The PLRA, as interpreted, demands proper compliance with a correctional facility’s grievance procedures, no matter how complex those procedures are. Though many struggle to comply, certain groups of the incarcerated population have been unduly prevented from litigating abuses. One such group is incarcerated adolescents, who — despite recent recognition that they should be differentiated from adults in the criminal justice system — remain subject to the same difficult exhaustion standard as incarcerated adults.

This Note argues that the Supreme Court’s most recent interpretation of the PLRA’s exhaustion provision demands a different analysis of attempts by nonordinary incarcerated groups to exhaust. In Ross v. Blake, issued in 2016, the Court clarified that grievance procedures must be “capable of use” or “accessible” for a person to be required to exhaust them; otherwise, there is no available remedy and the claim should not be dismissed for failure to exhaust. This Note uses adolescents incarcerated in adult facilities as an example of a nonordinary group to explain why they lack an available remedy under Ross. In light of recent research establishing that adolescents have significant cognitive and developmental differences from adults and are at a higher risk of victimization, courts should account for their increased difficulty in understanding and complying with adult facilities’ grievances procedures. Without an “accessible” means of obtaining relief, adolescents incarcerated in adult facilities should not be barred from the courts for their failure to exhaust.

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Intersex in 2018: Evaluating the Limitations of Informed Consent in Medical Malpractice Claims as a Vehicle for Gender Justice

Issues Volume 52, Issue 2

By Caroline Lowry

Each year, hundreds of individuals are born intersex, meaning they have genitalia that do not meet the criteria for being exclusively male or female. For decades, doctors have performed corrective genital surgeries on intersex infants in an attempt to make it easier for them to grow up as “normal” boys and girls. In recent years, however, there is a growing consensus that cosmetic genital correctional surgeries are both unnecessary and often harmful to the long-term wellbeing of intersex individuals. Given increasing recognition of negative outcomes over the past decade, critics and activists have called for a moratorium on corrective genital surgeries performed on infants. In 2017, an intersex youth named M. Crawford obtained the first legal settlement ever in the United States challenging infant correctional surgeries under the doctrine of informed consent.

This Note explores the implications of this the landmark legal settlement on efforts to combat nonconsensual genital correction surgery performed on intersex children. In particular, this Note explores the strengths and weaknesses of pursuing litigation based on the informed consent claims raised in M.C.’s lawsuit. This Note also offers alternative methods to combat the practice of performing intersex correctional surgeries.

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Least Restrained Environment: Amending the IDEA to Require Positive Behavioral Interventions and Supports in IEPs

Issues Volume 52, Issue 2

By Helin Azizoglu

Students with disabilities are disproportionately restrained and secluded in schools. Though sometimes these practices are employed as necessary safety measures to de-escalate a behavioral crisis and protect students and staff from injury, they are prone to abusive or unsafe implementation, especially when performed by untrained or inadequately trained staff. In recent years, research has emerged illuminating the risks associated with these practices, which can lead to injury or death when performed improperly.

There is currently no federal legislative or regulatory framework in place addressing the practice of restraint and seclusion in schools, and state practices vary widely. As such, this Note proposes amending the Individuals with Disabilities Education Act, the statute governing the rights of students with disabilities, to affirmatively require the inclusion of positive behavioral interventions and supports in individualized education plans. Additionally, this Note proposes recommendations to bolster protections for students with disabilities at the state level.

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Whiter and Wealthier: “Local Control” Hinders Desegregation by Permitting School District Secessions

Issues Volume 52, Issue 1

By Meaghan E. Brennan

When a school district is placed under a desegregation order, it is to be monitored by the district court that placed the order until the district is declared unitary. Many school districts have been under desegregation orders since shortly after Brown v. Board, but have failed to desegregate. Even when a school district is making an honest attempt, fulfilling a desegregation order is difficult. These attempts can be further complicated when a racially-identifiable set of schools secedes from the district. Such school district disaggregations make traditional desegregation remedies more difficult by further isolating children of different races.

In the past few decades, dozens of school districts have seceded to create wealthy districts filled with white children adjacent to poorer districts with children of color. This Note argues that school district secessions harm desegregation efforts and, in turn, the educational achievement of students in those districts. Two school districts — one in Jefferson County, Alabama and another in Hamilton County, Tennessee — serve as examples of how secession movements arise and how the conversations progress. Secession proponents often advocate for increased “local control” — seemingly innocuous rhetoric that serves as a guise for racism and other prejudice.

This Note argues that school district disaggregation is made far too easy by judicial preoccupation with local control and by the moralpolitical failure of state legislatures. But it is possible to discourage segregative school district disaggregation by reworking the concept of local control so that it prioritizes all children, and by adopting state legislation that promotes consolidated, efficient school districts.

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The Sentencing Judge’s Role in Safeguarding the Parental Rights of Incarcerated Individuals

Issues Volume 53, Issue 1

By Anna Iskikian

Incarcerated parents face a disproportionate risk of having their parental rights terminated. According to a recent analysis of three million child-welfare cases nationwide, parents whose children have been placed in foster care due to their incarceration, but who have not been accused of child abuse, endangerment, or drug use, are more likely to lose their parental rights than parents who have physically or sexually assaulted their children. A dramatic rise in the prison population and the passage of the Adoption and Safe Families Act (ASFA) have driven the increase in the loss of parental rights among incarcerated parents. Furthermore, sentencing guidelines and mandatory minimums constrain a judge’s ability to adequately consider a defendant’s parenthood at sentencing.

This Note examines the sentencing judge’s role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD’s analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims.

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Invisible Victims: Combatting the Consequences of the College Admissions Scandal for Learning-Disabled Students

Issues Volume 54, Issue 3

By Susannah G. Price

In a recent college admissions bribery scheme, a network of wealthy parents paid entrance exam proctors, admissions insiders, and medical providers to rig the system that enables students with disabilities to receive testing accommodations. By purchasing false disability diagnoses, these parents procured testing accommodations and facilitated cheating on standardized tests — all in an effort to gain admission to top-tier universities. As a result, disability rights advocates fear a backlash against students with legitimate needs for disability accommodations in the college admissions process.

The purposes of this Note are to explore the practical consequences of the scandal for students with learning disabilities and to present a legal framework for preserving disability rights. This Note proposes: (1) adopting a purposive statutory interpretation of the Americans with Disabilities Act (ADA) as amended in 2008 to ensure that the rights of learning-disabled students are not violated; and (2) implementing this interpretation through legislative and regulatory amendments as well as judicial construction. The Note begins with a summary of the college admissions scandal and its exploitation of disability accommodations. Part II examines the legislative framework and case law that govern testing accommodations, including the ADA and its 2008 amendments (ADAAA). Part III outlines the trend of treating prior receipt of accommodations as a quasi-prerequisite for future accommodations, and how this trend discriminates against disabled students with recent diagnoses. Part III also details how the emphasis on prior receipt of accommodations is contrary to the purpose of the ADAAA and proposes adopting a purposive statutory and regulatory interpretation to ensure that first-time applicants for accommodations are not unduly penalized. Part IV identifies concrete methods to implement this interpretation and adequately safeguard the rights of learning-disabled students, including legislative amendment of 42 U.S.C. § 12102, regulatory amendment of 28 C.F.R. § 36.309, and corresponding judicial construction.

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Ill-Advised, Ill-Prescribed: A Remedy for the Alarming Usage of Psychotropic Drugs Among Migrant Children Held in U.S. Detention Facilities

Issues Volume 54, Issue 3

By Ilana Gomez

In recent years, many U.S. detention facilities have faced intense scrutiny for failing to comply with the 1997 Flores Settlement Agreement — a binding agreement that outlines national standards for the detention and release of migrant minors. Among other Flores Settlement violations, a 2018 class-action lawsuit revealed that a detention facility in Texas was unlawfully administering psychotropic medications to migrant minors under its supervision. The class members in Flores v. Sessions alleged receiving psychotropic drugs without parental or legally authorized consent, in addition to experiencing abusive medical practices. In response, the U.S. District Court in Flores v. Sessions ordered that the detention facility follow Texas child welfare laws and regulations when administering psychotropic medications to detained minors.

After the Flores v. Sessions order, detention facilities across the country have looked to their respective state child welfare laws and policies for instruction on how to authorize psychotropic medications to detained migrant minors. At present, state laws and policies governing consent and assent to psychotropic treatment vary across jurisdictions and are not tailored to the needs of migrant minors detained separately from their families. Of concern is the lack of guidance on who should consent for a migrant minor when their parent or legal guardian is not available; and the lack of procedure on how and when to obtain consent and assent from migrant youth. To address these outstanding issues, this Note proposes a national consent and assent framework for minors undergoing psychotropic treatments at U.S. detention facilities. By incorporating Loretta Kopelman’s “Best Interests Standard,” this framework will help facilitate the administration of psychotropic drugs in a manner that respects the health, safety, and rights of migrant youth.

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Beyond the Point of Exhaustion: Reforming the Exhaustion Requirement to Protect Access to IDEA Rights in Juvenile Facilities

Issues Volume 56, Issue 1

By Abbe Petuchowski

Congress enacted the Individuals with Disabilities Education Act (IDEA), in conjunction with other federal and state laws, to recognize a substantive right to “a free appropriate public education” for youth with disabilities and to establish a process to make this right accessible. Although the IDEA guarantees youth in juvenile facilities the same legal rights to special education services as students attending traditional public schools, correctional and education agencies across the country struggle to provide students in these facilities with special education services that meet these legal mandates. When violations occur, the IDEA imposes a threshold requirement that families exhaust administrative remedies before bringing a claim in state or federal court. Courts have interpreted this requirement, and especially its exceptions for systemic allegations of IDEA violations, in different and unpredictable ways.

This Note analyzes the IDEA’s application of the exhaustion requirement in the context of class action claims against juvenile facilities in federal courts. Part I outlines the substantive rights and procedural protections under the IDEA. Part II examines how structural features of juvenile facilities impede access to IDEA rights. Part III analyzes how the exhaustion requirement and its exceptions interact with the juvenile justice context to further deny access to IDEA rights. To address these concerns, Part IV proposes a range of reforms to the exhaustion requirement for allegations of systemic IDEA violations in juvenile facilities.

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Keeping Ferris Out of Foster Care: Reforming the JJDPA to Prevent Home Removals Based on Truancy

Issues Volume 57, Issue 1

By Rose Wehrman

Truancy is directly correlated with negative educational and life outcomes for students. The state exacerbates these negative effects when it removes students from their homes for truancy. Far from addressing the underlying causes of truancy, home removals—whether into secure or non-secure placements—cause devastating harm.

The Juvenile Justice Delinquency and Prevention Act (JJDPA) allows, with some restriction, for children to be incarcerated for truancy. Additionally, the JJDPA has never regulated the civil removal of juvenile status offenders to non-secure yet prison-like placements. JJDPA reform has so far focused on the harms of incarceration—a worthy cause, but one that must not overshadow the overlapping harms of non-secure removals.

This Note argues that truancy should not be handled by removing children from their homes and proposes revisions to the JJDPA that would bring the Act closer to its purpose: preventing delinquency and providing necessary services. To achieve the intended purpose of the JJDPA, Congress must implement further reform. This Note offers an analysis of how non-secure home removals intersect with the JJDPA and extends existing discourse through its analysis of post-2018 valid court order (VCO) exceptions. Ultimately, this Note demonstrates how non-secure civil removals and VCO incarcerations frustrate the intended purpose of the JJDPA.

Part I discusses the scope of the truancy problem and the JJDPA’s background and context. Part II offers insight into the unique harms of home removals, and Part III demonstrates how current loopholes frustrate the purpose of the JJDPA. Part IV suggests revisions to strengthen the JJDPA’s protections and more closely align the bill with its purpose.

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