Reporting a Crime Committed by a Student with an IDEA Disability

By Andrea Kunkel, ODSS Executive Director/CCOSA General Counsel

When Congress last reauthorized the Individuals with Disabilities Education Act (IDEA) in 2004, it included a new provision about agencies reporting crimes committed by children with IDEA disabilities. It provides, first, that nothing in IDEA Part B (concerning children and youth ages 3 through 22) prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities under state and federal law to crimes committed by a child with a disability. It also places certain responsibilities on agencies, including local education agencies (LEAs), that report such crimes. Although these responsibilities have been part of the IDEA for almost 20 years, they seem to be largely unknown.

Under the law, an LEA or other agency reporting a crime committed by a child with an IDEA disability must ensure that copies of the child’s special education and disciplinary records are transmitted for consideration by the appropriate authorities to whom the LEA reports the crime. The purpose of this requirement is to give law enforcement the opportunity to review and use information from student records to make decisions about the child’s culpability. The IDEA language suggests that the LEA is obligated to simply transmit the child’s records to that authority. However, the law also provides that the LEA or other reporting agency may transmit copies of the child’s records only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA), another federal law. Reading those provisions together, we suggest that LEAs create a form letter to send to authorities to whom they may report the commission of a crime, such as the local police department or county sheriff’s office.

LEAs may choose to use the following sample language as part of a dated letter on school district letterhead addressed to the law enforcement official and/or department to whom the crime was reported and referencing the child by name:

I recently contacted your office concerning the referenced student. As required by federal law, the purpose of this letter is to advise you that the District maintains certain type of “education records” for this student. The information in those records may be relevant to action under consideration by your office. The District may release information from the student’s education records to your office upon receipt of a lawfully issued court order, subpoena, signed parent consent form or via another applicable exception to the parental consent requirements of the Family Educational Rights and Privacy Act, a federal law also known as FERPA. If you have questions about this letter, please contact me.

We suggest LEAs send a cc of the letter to the child’s parent or guardian and the LEA superintendent or other designated person. The LEA should not identify the child as having a disability in the letter or send any of the student’s education records with the letter. It should upload the letter to EdPlan or otherwise maintain a copy as part of the child’s education record. The LEA may never hear from the law enforcement authority to which the crime was reported, but if a representative makes contact to obtain the child’s records, LEA staff can work with them to ensure FERPA compliance before any records are provided. ■