May 10, 2019

Criminalizing disability: Special-needs kids who don’t get help in school are winding up in jail

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Don J. Usner/Searchlight New Mexico.

It was right after the fifth-period bell last October that Sebastian Montano lay face down in the grass outside Alamogordo High School, screaming for his mother, as two police officers pinned him to the ground and thrust a Taser in his back.

Moments earlier, a staff member had called police after learning that the 16-year-old, a special needs student who’d recently dropped out, was now trespassing on school grounds.

A shy teenager with light brown hair and big green eyes, Sebastian was well known to staff and students at Alamogordo High. He had a long and messy school history, including 16 documented run-ins with school police officers — all in relation to behaviors associated with his disabilities: autism spectrum disorder, bipolar disorder, anxiety disorder, PTSD, epilepsy, and ADHD.

But he was also a boy who showed great promise. He tested in the superior range in math and was considered something of a genius when it came to electronics. He understood the internal circuitry of complex gadgets with casual ease; his classmates would often hand him their broken smartphones to fix. When he was in seventh grade, he disassembled his mother’s laptop and melded it with the innards of an Xbox gaming console, creating his own portable gaming system.

With the right support, he might have been on his way to a career as an electrician or even an engineer. Instead, he was now another special needs student swept up in the school-to-prison pipeline.

Law and order and education

Alamogordo Public Schools, a district of 6,400 students spread over 15 schools, far exceeds the state average for student referrals to law enforcement, according to the most recent federal data. In the 2015-‘16 school year, such referrals were nearly double the corresponding number in Las Cruces, a neighboring district that is four times the size. In the 2013-‘14 school year, Alamogordo schools referred many more students to police than did the state’s largest district, Albuquerque Public Schools. Though special needs students made up only 12 percent of Alamogordo High School’s population in 2015, they represented 25 percent of the school’s referrals to law enforcement.


Source: Most recently available data from U.S. Department of Education Office of Civil Rights; graphic by Ed Williams / Searchlight New Mexico.

Such disparities are common statewide. At least 29 of the 44 school districts that referred students to police during the 2015-‘16 school year disproportionately referred students with disabilities, according to a Searchlight New Mexico analysis of the most recent federal data.

“There’s a common attitude in New Mexico that it’s easier to write off difficult students and just let law enforcement deal with them,” said Jesse Clifton, an attorney with Disability Rights New Mexico, a statewide organization that advocated for Sebastian during special education meetings at Alamogordo High.

“The school has the legal responsibility of figuring out how to manage those students and not just pawn them off to the local police department.”

A product of societal neglect”

As soon as School Resource Officer Daniel Narvaez approached Sebastian on that October afternoon, the teenager grew visibly anxious. He began to run, but recalling the advice of his lawyer, he stopped himself, threw his hands in the air and pleaded for the officer to call his mother.

Officer Narvaez moved in for the arrest and Sebastian screamed, swinging his arms and striking Narvaez on the side of the head — a reaction that would earn him a felony charge of assaulting a police officer and resisting arrest.

Neither of the two police officers had his body camera running.

Though Sebastian doesn’t remember what happened next, police reports suggest he suffered a stress-induced seizure. He failed to understand why police were charging him with two serious crimes, adding to an already thick rap sheet that had been building since he was in sixth grade.

There are countless Sebastians across the U.S. — students with disability-related behavior problems who do not receive adequate special education services in school, are instead repeatedly referred to law enforcement, and ultimately end up in jail or prison.

A study by the American Bar Association reports that nationwide, 65 percent of inmates in juvenile lockup have a disability.

In New Mexico, a state with one of the highest rates of child trauma and child poverty, that number is much higher. An astounding 99.5 percent of youth offenders in state custody have at least one psychiatric diagnosis, according to a 2016 study by the New Mexico Sentencing Commission.

Virtually all of them have, like Sebastian, undergone multiple traumatic experiences before being locked up. Only a third received special education services in school — services that, administered properly, might have prevented their incarceration.

“Most of these kids have had a pattern of difficulty for years,” said Dr. Andrew Hsi, a University of New Mexico pediatrician and a lead author of the Sentencing Commission study. “The system and people around them failed to intervene when they were younger and more amenable to help. Where they are now is a product of societal neglect.”

In 2015, New Mexico spent a total of nearly $75 million on Juvenile Justice Services, with an average daily inmate population of just over 200 kids, according to a Legislative Finance Committee report.

Cases like these aren’t supposed to happen. At both the state and federal levels, laws and procedures have been put in place to identify kids like Sebastian, provide them with specialized learning programs and set them on a path to success.

Those procedures, however, are frequently flouted. Long before Sebastian Montano sat in handcuffs and leg shackles following his arrest at Alamogordo High, teachers, administrators and police missed countless opportunities to address his outbursts — sometimes denying special education services in clear violation of state and federal guidelines.

Officials with Alamogordo Public Schools declined to be interviewed for this story.

“The District takes pride in providing all of our students a Free Appropriate Public Education, despite limited funding and resources,” wrote Doyle Syling, chief of staff for Alamogordo Public Schools, in an email response to an interview request. “The District and the Board of Education take this mandate seriously and are committed to ensuring it is available to all students.”

Too little, too late

A key tenet of the Individuals with Disabilities Education Act, passed by Congress in 1990, is that people with disabilities have the right to a free and appropriate public education.

IDEA requires schools to identify children by age 3 and create an Individualized Education Program, or IEP, to ensure their learning will not be disrupted by their disability.

In Alamogordo, the school staff didn’t identify Sebastian as a candidate for special education until he was a seventh grader at Mountain View Middle School – and that referral only came after teachers learned he was talking to classmates about suicide. In fact, Sebastian had shown many signs of problems long before then.

“I knew he was different from the time he was born,” recalls his mother Nina Barela, who has been a tireless advocate for Sebastian throughout his years in the public school system. His frequent seizures, she said, started as an infant. He was nonverbal until age 4 and easily overstimulated.

When he was 11, his father died from a pain medication overdose following a sports injury. Sebastian took the loss hard. That same year, he left his school in the tiny southern New Mexico village of Carrizozo, going first to an elementary school in Capitan and then to Yucca Elementary in Alamogordo, a town of 31,000 that sprawls westward into the desert from the foothills of the Sacramento Mountains.

The constant changes proved stressful, and by the time he turned 12, he was briefly hospitalized in a psychiatric facility.

“Nobody had ever told me about IEP’s, or that there were rules the school had to follow,” said Barela. “They never even gave my kid a chance.” By the time Sebastian began middle school, he was plunged into sensory overload in the classroom, a problem common to students with autism. To deal with the overstimulation, he often banged his head on the desk — a habit so disconcerting to teachers that school authorities called social services on his mother four times.

He became the target of bullies, though kids who picked on him often came away on the short end of the stick. Sebastian relished being sent to in-school suspension, which he came to see as a haven from the stress of the classroom. Once, his mom says, he randomly punched a classmate in the parking lot in an effort to get sent back to the peace and quiet of in-school suspension.

When in 2015 school psychologist Ron Russell at last performed a psycho-educational evaluation, he found that the seventh grader had a reduced ability to manage his emotions and was unable to control his outbursts. Sebastian was developing a deep fear of school personnel, who routinely reported him to police — usually for fighting with bullies — earning him a criminal record for assault by age 13, according to police records.

But, a full year would pass before Mountain View Middle School issued Sebastian his first IEP, according to school records provided to Searchlight by his mother. And even that failed to recognize many of his diagnosed disabilities or the fact that his behavior problems were disability-related.

Missing a window

It was near the end of his freshman year at Alamogordo High that Sebastian tried to commit suicide.

By then, he had been admitted to psychiatric treatment centers four times. Each time, he made impressive gains; his grades improved and his behavior and mood problems vanished, according to discharge notes. With each return to Alamogordo High School, his behavior problems resurfaced, and by the end of that freshman year, he had been written up at least 34 times for disciplinary infractions.

Two and a half years had passed since the original evaluation by the school psychologist, and Sebastian still hadn’t received services to address his behavior problems. In 2017, Russell once again evaluated Sebastian, confirmed his previous diagnoses and urged the school to begin implementing behavioral supports.

“Children with behavioral issues may struggle to regulate their behavior in the classroom, defy teacher requests, or commit frequent rule violations,” Russell wrote. “Accommodations focused on his weaknesses in this area may improve academic performance.”

New Mexico’s Public Education Department provides clear guidelines around such situations. In cases like Sebastian’s, the school is required to issue a Behavioral Intervention Plan, or BIP, to address the root causes of disruptive behavior using positive interventions.

In Alamogordo, school personnel instead referred Sebastian to law enforcement time and again — even summoning the police when his behavior clearly called for intervention from a mental health professional. When he threatened to kill himself, the middle school counselor called police. When he cut himself intentionally, the assistant principal called police. And when he wandered onto the grounds of Alamogordo High School, guidance counselor Mark Sanchez — who had been a member of his special ed support team — called police.

His mother, meanwhile, had been lobbying relentlessly for a BIP. She obtained referrals from an independent psychologist affirming that “Sebastian’s academic and behavioral needs are a direct result of his handicapping conditions and need to be addressed at school.”

“They wouldn’t listen,” Barela said of her constant attempts to have a plan put in place. “They just told me, your son has a chip on his shoulder, he’s a bad kid. He’s not a bad kid. He just needs help.”

Finally, in 2017, the school psychologist made the unusual move of making an official referral for a Functional Behavior Assessment, the first step in setting up a BIP. And once again, according to Sebastian’s education records, the school neglected to begin the process.

“We see this kind of thing all the time — a lot of kids who need Behavioral Intervention Plans don’t have one,” said Jason Gordon, a litigation manager with Disability Rights New Mexico.

“If there was a BIP like there should have been, we wouldn’t be talking about criminal behavior,” he added.

So when, in May of 2017, Sebastian and a group of friends brought a Nerf gun to school, stuck metal staples in the end of the Styrofoam bullets and shot them at classmates, school administrators and campus police treated the episode as a serious criminal matter — charging Sebastian with weapons possession, aggravated assault and gang affiliation.

Later that night, he ate two bottles of Trileptal, an anti-seizure medication. Though he survived, Sebastian refused to return to school.

He spent much of the following year wandering around town, sometimes sleeping in the play area of a park down the street from his house, as his mother tried to figure out how to get him to finish high school. He became more and more detached until, in October of 2018, he walked back onto the grounds of Alamogordo High School.

Crisis without intervention

Sebastian’s arrest for trespassing on campus that day sent him into a paranoid episode, according to his mother. He ran away from home, and when he returned on the day of his 17th birthday, he became convinced the battery light in the smoke detector was a camera, installed to record his every move. He flew into a rage and picked up a kitchen knife, waving it in the air and ranting nonsensically.

His sister dialed 911 and explained that her brother was in the midst of a mental health emergency.

“Thank God you’re here,” Sebastian told the police as they stepped inside the house. “Just kill me.”

The officers persuaded him to put down the knife and took him to the emergency room. Later, against the protestations of his mother, he was charged with felony assault with a deadly weapon and criminal damage to her property.

Awaiting trial in the Doña Ana County juvenile detention center, Sebastian agreed to talk to a reporter in February. His bashful demeanor stood in sharp contrast to the barbed wire, clanging metal doors and buzzy fluorescent lighting of the jail’s visitation room.

He spoke in short sentences with a monotone inflection. Looking down between words, he ticked through the typical day in detention: “We wake up at 7. Then we chill for a while. Then we get to watch TV. Then at 9 our meds come. It’s alright.”

Sebastian’s mother was less accepting. She was livid about the charges, furious that after so many years of seeking help, it had all come down to this.

“This wasn’t assault and battery. This was a psychotic breakdown,” Barela said, her voice quivering.What are you supposed to do when you have a crisis like that? I have no family support or anyone else I could have called.”

“I feel like a failure. I feel like I betrayed him. But in the moment, it was so frightening I didn’t know what to do.”

There wasn’t much she could have done. Like so many towns across New Mexico, Alamogordo lacks a mental health crisis intervention team. Police Chief Brian Peete recently began requiring mental health training for his officers but even with that training, interactions with police often end in criminal charges.

Sebastian would spend the next three months in jail before taking a plea bargain ahead of trial. Just over a month ago, he returned home, outfitted with an ankle monitor.

As a condition of his release, he is required to enroll in a residential treatment program.

So far, his mother has not been able to find a single one that will take him – thanks to his criminal record.