Endnotes

1. Pub. L. No. 96-247, 94 Stat. 349 (1980) (codified at 42 U.S.C. §§ 1997-1997j).

2. 42 U.S.C. §§ 1997-1997j.

3. See S. Rep. No. 416, 96th Cong., 1st Sess. 16-17 (1980), reprinted in 1980 U.S.C.C.A.N. 783, 798.

4. Mark Soler, et al., Representing the Child Client ¶¶ 1.55-.62 (Matthew Bender 1987).

5. 42 U.S.C. � 1997(1)(B)(iv).

6. Information supplied by the Special Litigation Section, Civil Rights Division, U.S. Department of Justice (November 1997).

7. See S. Rep. No. 416, supra note 3, at 29, reprinted in 1980 U.S.C.C.A.N. 783, 811.

8. 42 U.S.C. � 1997c.

9. Id. � 1997c(a)(1).

10. Id. � 1997c(a)(2).

11. Id. � 1997c(b)(1).

12. See Summary and Analysis: Civil Rights of Institutionalized Persons Act, 7 M.D.L.R. 5, 5-8 (1983) (discussing advocacy groups' response to DOJ's enforcement policy under CRIPA).

13. 42 U.S.C. � 1997(1)(A).

14. Id. � 1997(1)(B). The five types of facilities are:
    1. for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped;
    2. a jail, prison, or other correctional facility;
    3. a pretrial detention facility;
    4. for juveniles --
       1. held awaiting trial;
       2. residing in such facility or institution for purposes of receiving care or treatment; or
       3. residing for any State purpose in such facility or institution [other than for educational purposes]. . .; or
    5. providing skilled nursing, intermediate or long-term care, or custodial or residential care.

15. Id. � 1997b (a)(1) (this findings letter is also known as the "49-day letter").

16. S. Rep. No. 416, supra note 3, at 27, reprinted in 1980 U.S.C.C.A.N. 783, 809.

17. S. Rep. No. 416, supra note 3, at 32, reprinted in 1980 U.S.C.C.A.N. 783, 814.

18. See H.R. Conf. Rep. No. 897, 96th Cong., 1st Sess. at 9 (1980), reprinted in 1980 U.S.C.C.A.N. 824, 832-833.

19. 21. S. Rep. No. 416, supra note 3, at 33, reprinted in 1980 U.S.C.C.A.N. 783, 815.

20. Investigation and negotiation regarding a juvenile facility in Alabama have been ongoing since 1992.

21. Information provided by the Special Litigation Section, Civil Rights Division, U.S. Department of Justice (November 1997).

22. 42 U.S.C. � 1997a(a).

23. Id. � 1997b.

24. Id. � 1997a(a).

25. S. Rep. No. 416, supra note 3, at 31, reprinted in 1980 U.S.C.C.A.N. 783, 813.

26. United States v. Oregon, 839 F.2d 635 (9th Cir. 1988); see also John K. Cornwell, CRIPA: The Failure of Federal Intervention for Mentally Retarded People, 97 Yale L.J. 845, 854 (1988).

27. Investigations that resulted in no litigation included investigations of facilities in Philadelphia, PA; Sandy Creek, PA; Prunytown, WV; Manchester, NH; Ione, Los Angeles, and San Francisco, CA; Jacksonville, FL; Buffalo, NY; Jackson, MS; Hato Rey and Victoria, PR; and Helena and Miles City, MT.

28. States with ongoing CRIPA investigations in juvenile facilities include Alabama, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Ohio, and Virginia.

29. United States v. Commonwealth of Kentucky (W. D. Ky.) (consent decree covering all 13 juvenile treatment facilities ordered on Nov. 13, 1995).

30. United States v. Essex County (D.N.J.) (consent decree covering Essex County Youth House ordered on Dec. 22, 1987); United States v. Commonwealth of Puerto Rico (D.P.R.) (consent decree covering eight juvenile detention and correctional facilities ordered on Oct. 6, 1994, settlement agreement covering an additional 12 detention and correctional facilities filed on Oct. 7, 1997).

31. See Special Education in the Criminal Justice System 3-6 (C. Michael Nelson et al. eds., 1987) (reporting that over 42 percent of incarcerated youth exhibit one of three prevalent categories of mental disabilities); see also Susan P. Leviton and Nancy B. Shugar, Maryland's Exchangeable Children: A Critique of Maryland's System of Providing Services to Mentally Handicapped Children, 42 Md. L. Rev. 823, 843 n.125 (1983) (reporting same statistics).

32. The Violent Crime Control and Law Enforcement Act, 42 U.S.C. � 14141 1994 (this section of the act refers to the Pattern or Practice of Police Misconduct Provision, which authorizes the Attorney General to seek declaratory and equitable relief to remedy conduct by juvenile justice officials that deprives individuals of their constitutional and Federal statutory rights).

33. Webster's New Collegiate Dictionary 823 (9th ed. 1989).

34. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Challenge Grants Program Guideline, 60 Fed. Reg. 24, 886 (1995).

35. See Laureen D'Ambra, Survey of Ombudsman Offices for Children in the United States (June 5, 1996) (report for presentation at the ABA 8th National Conference on Children and the Law).

36. Lauren D'Ambra, Office of the Child Advocate, Annual Report for the Office of the Child Advocate 14 (1995).

37. Ombudsman Services in Minnesota, Making Government Responsive to Citizens: A Comprehensive Overview with Recommendations for Efficient Ombudsman Services (Dec. 1995) (a public report prepared by the Ombudsman Roundtable).

38. 20 U.S.C. §§ 1401-1485. Prior to 1990 the Act, as amended, was referred to as the Education of the Handicapped Act (EHA).

39. See R.B. Rutherford, C.M. Nelson, and B.I. Wolford, Special Education in the Most Restrictive Environment: Correctional/Special Education, 19 J. Special Educ. 59 (1985); Peter E. Leone, A Review of Special Education Programming at Catalina Mountain Juvenile Institution (Nov. 1988) (a report submitted to U.S.D.C., D. Ariz.); Peter E. Leone, Evaluation of Educational and Vocational Services at Cedar Knoll and Oak Hill Youth Centers (Dec. 1990) (a report submitted to the Office of the Monitor); and Peter E. Leone, Education Services for Youth with Disabilities in a State-operated Juvenile Correctional System: Case Study and Analysis, 28 J. Special Educ. 43 (1994).

40. 20 U.S.C. � 1401(a)(18).

41. Id. §§ 1411(a)(1)(A), 1412(2)(C).

42. Id. � 1412(5)(C).

43. Id. � 1401(a)(1).

44. 34 C.F.R. � 300.342(b)(1).

45. 20 U.S.C. � 1401(a)(20).

46. 34 C.F.R. pt. 300, App. C, ¶¶ 36-39.

47. 20 U.S.C. � 1401(a)(18).

48. 34 C.F.R. � 300.504(a).

49. 20 U.S.C. � 1415.

50. The age of eligibility varies slightly from State to State.

51. The Handicapped Children's Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (codified as amended at 20 U.S.C. � 1415(e)(4)); see J.E. West, The Handicapped Children's Protection Act: A Case Study of Policy Formation (1988) (Ph.D. dissertation, University of Maryland (College Park) providing more information about the creation of the act).

52. See, e.g., H.R. 3268, 104th Cong. (1996) (proposing to permit schools to expel disabled students and end all educational services for misconduct unrelated to their disability).

53. See Perryman, DiGangi, and Rutherford, Recidivism of Handicapped and Non-Handicapped Juvenile Offenders: An Exploratory Analysis (Nov. 1989) (paper presented at the Learning Handicapped Offender Conference, Pittsburgh, PA); Nelson and Rutherford, Impact of the Correctional Special Education Training (C/SET) Project on Correctional Special Education (Sept. 1989) (paper presented at the CEC/CCBD National Topical Conference on Behavioral Disorders, Charlotte, North Carolina); Rutherford, Nelson, and Wolford, supra note 39.

54. See Casey and Keilitz, Estimating the Prevalence of Learning Disabled and Mentally Retarded Juvenile Offenders: A Meta-Analysis, in Understanding Troubled and Troubling Youth 82 (P. Leone ed., 1990).

55. See R.K. Otto et al., Prevalence of Mental Disorders Among Youth in the Juvenile Justice System, in Responding to the Mental Health Needs of Youth in the Juvenile Justice System (J.J. Cocozza ed., 1992).

56. U.S. Department of Education 15th Annual Report (1993) (reporting that the percentage of school-aged children identified as disabled during the 1991-92 school year was 10.1 percent).

57. See Rothstein, Special Education Law (1990) (for a discussion of special education legislation and litigation).

58. See Board of Educ. v. Rowley, 458 U.S. 176 (1982).

59. See Irving Indep. School Dist. v. Tatro, 468 U.S. 883 (1984).

60. See Smith v. Robinson, 468 U.S. 992 (1984).

61. See School Bd. of Nassau County v. Arline, 107 S. Ct. 1123 (1987).

62. See Honig v. Doe, 108 S. Ct. 592 (1988).

63. All States and the District of Columbia currently receive Federal funding under IDEA. See also Virginia Dep't of Educ. v. Riley, 86 F.3d 1337 (4th Cir. 1996) (the Virginia Department of Education successfully litigated to have the authority to withhold Virginia's FY 94 and 95 allocation under IDEA for permitting local school districts to deprive students with disabilities all education services when they are expelled or suspended for behavior unrelated to their disability).

64. See 14 Youth Law News (March-April, 1993) (for a discussion of the Johnson v. Upchurch consent decree and juvenile justice reform in Arizona).

65. Allen F. Breed, Peter E. Leone, and Russell K. VanVleet, Sixth Semi-Annual Report on the Implementation of the Johnson v. Upchurch Consent Decree by the Arizona Department of Corrections (June 12, 1996).

66. See M.J. Dale and C. Sanniti, Litigation as an Instrument for Change in Juvenile Detention: A Case Study, 39 Crime & Delinquency 49 (1993).

67. To obtain copies of these standards, write to the National Criminal Justice Reference Service, P.O. Box 6000, Rockville, Maryland 20849-6000; or phone 800-851-3420; or e-mail: [email protected] to request Document No. 113094, the Standards for Adult and Juvenile Correctional Education Programs by the Correctional Education Association.

68. See Joseph B. Tulman, The Best Defense is a Good Offense: Incorporating Special Education Law into Delinquency Representation in the Juvenile Law Clinic, 42 J. Urb. & Contemp. L. 223 (1992).

69. Pub. L. No. 94-103, 89 Stat. 486 (codified as amended at 42 U.S.C. §§ 6000-6083) (1996) (the Developmental Disabilities Act was an extension of the Developmental Disabilities Service and Facilities Construction Act of 1970, Pub. L. No. 91-517, 84 Stat. 1316).

70. 42 U.S.C. � 6042(a)(1) (1996).

71. Id. §§ 10801-10807.

72. 29 U.S.C. � 794e (1996).

73. 42 U.S.C. � 6042(a)(2)(A) (1996).

74. Id. � 6042(a)(2)(B).

75. Id. � 6042(K).

76. See National Association of Protection & Advocacy Systems, Inc., Annual Report of the P&A System 1995-1996 18 (1996).

77. 29 U.S.C. � 732 (1996).

78. See Casey and Keilitz, supra note 54 (estimating that 35.6 percent of juvenile offenders have learning disabilities and 12.6 percent have mental retardation).

79. See NAPAS report, supra note 69.

80. NAPAS report, supra note 69, at 10.

81. 42 U.S.C. � 6009 (1996).

82. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981).

83. 42 U.S.C. §§ 6021-6030 (1996).

84. Id. � 6001.
    [t]he term developmental disability means a severe, chronic disability of an individual 5 years of age or older that --
    1. is attributable to a mental or physical impairment or combination of mental and physical impairments;
    2. is manifested before the individual attains age 22;
    3. is likely to continue indefinitely;
    4. results in substantial functional limitations in three or more of the following areas of major life activity --
       1. self-care;
       2. receptive and expressive language;
       3. learning;
       4. mobility;
       5. self-direction;
       6. capacity for independent living; and
       7. economic self-sufficiency; and
    5. reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, supports, or other assistance that is of lifelong or extended duration and is individually planned and coordinated, except that such term, when applied to infants and young children means individuals from birth to age 5, inclusive, who have substantial developmental delay or specific congenital or acquired conditions with a high probability of resulting in developmental disabilities if services are not provided.

85. 42 U.S.C. � 6042(a)(2)(G) (1996).

86. Id. � 6042.

87. Id. � 6042 (d).

88. Id. §§ 10801-10807.

89. Id. � 10802(4).
    Under the statute: (4) The term "individual with mental illness" means an individual --
    1. who has a significant mental illness or emotional impairment, as determined by a mental health professional under the laws and regulations of the State; and
    2. 1. who is an inpatient or resident in a facility rendering care or treatment, even if the whereabouts of such patient are unknown;
       2. who is in the process of being admitted to a facility rendering care or treament, including persons being transported to such a facility; or
       3. who is involuntarily confined in a municipal detention facility for reasons other than serving a sentence resulting from conviction for a criminal offense.

90. Id. � 10802(2) (defining "eligible system" as PADD).

91. Id. � 6001.

92. Id. � 10802(4).

93. Id. � 10802(4)(B).

94. Id. � 10802(3).

95. 29 U.S.C. � 701 et seq (1996).

96. Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, � 510(a), 106 Stat. 4430 (codified at 29 U.S.C. � 794e (1996)).

97. Telephone Conferences with P&A's in Twelve States (1994) (the jurisdictions that contributed are Alabama, California, the District of Columbia, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New York, South Carolina, Virginia, and Wisconsin).

98. Alexander S. v. Boyd (S filed Dec. 28, 1990).

99. James O. v. Marsden (D.N.H. filed 1991).

100. See also Bi-Metallic Co. v. State Bd. of Equalization, 239 U.S. 441 (1915) (case facts presenting an example where public participation in the political process sufficiently protects individual rights); Londoner v. Denver, 210 U.S. 373 (1908) (case facts presenting an example where a hearing is necessary to protect individual rights).

101. 5 U.S.C. � 551(4) (1996); compare Uniform Law Commissioner's Model State Administrative Procedure Act � 1-102(10), 15 U.L.A. 7, 12 (1981) (does not include either "statement of future effect" or "statement of . . . particular applicability" as part of its definition).

102. 5 U.S.C. � 551(5) (1996).

103. Id. � 553 (provides the informal procedures that Federal agencies must follow when promulgating rules.)

104. Id. � 553(b).

105. Id. � 553(b)(1)-(3).

106. Id. � 553(c).

107. Id.

108. Id. � 553(d).

109. Uniform Law Commissioner's Model State Administrative Procedure Act � 1-102(10), 15 U.L.A. at 12 (1981).

110. Uniform Law Commissioner's Model State Administrative Procedure Act � 3-107, 15 U.L.A. at 42 (1981).

111. BASE Wyandotte Corp. v. Costle, 598 F.2d 637 (D Cir 1979).

112. Uniform Law Commissioner's Model State Administrative Procedure Act §§ 3-101 to 117, 15 U.L.A. 33-57 (1981).

113. 5 U.S.C. � 551(7) (1996).

114. Id. � 551(6).

115. Matthews v. Eldridge, 424 U.S. 319 (1976).

116. Vitef v. Jones, 445 U.S. 780 (1980).

117. Uniform Law Commissioner's Model State Administrative Procedure Act §§ 4-101, 4-201, 15 U.L.A. at 67, 74 (1981).

118. 5 U.S.C. � 554(a) (1986).

119. See Id. §§ 554, 556-57 (containing the formal protections of the APA).

120. Id. � 555(b).

121. Id. � 555(c), (d).

122. Id. � 555(e).

123. Uniform Law Commissioner's Model State Administrative Procedure Act §§ 4-101 to 221, 15 U.L.A. at 67-98 (1981).

124. Id. (providing the formal Model State APA procedures).

125. Smith v. Wade, 461 U.S. 30 (1973); Withers v. Levine 615 F.2d 158 (4th Cir. 1980); Woodhouse v. Virginia, 487 F.2d (4th Cir. 1973); Redman v. County of San Diego, 942 F.2d 1435 (9th Cir. 1991).

126. Youngberg v. Romeo, 457 U.S. 307 (1982); Pena v. New York State Div. for Youth, 419 F. Supp. 203 (S.D.N.Y. 1976).

127. D.B. v. Tewksbury, 545 F. Supp. 896 (D. Or. 1982); Tommy P. v. Board of County Comm'rs, 645 P.2d 697 (1982); Green v. Johnson, 512 F. Supp. 965 (D. Mass. 1981).

128. Estelle v. Gamble, 429 U.S. 97 (1976); D.B. v. Tewksbury, 545 F. Supp. 896 (D. Or. 1982); Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977); Ahrens v. Thomas, 434 F. Supp. 873 (W.D. Mo. 1977); Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980).

129. D.B. v. Tewksbury, 545 F. Supp. 896 (D. Or. 1982); Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977); Baker v. Hamilton, 345 F. Supp. 345 (W.D. Ky 1972); Thomas v. Mears, 474 F. Supp. 908 (E.D. Ark. 1979).

130. The working group hoped that the State Department of Education would also participate in designing the reform, but the State Department of Education declined the invitation.

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