Providing FAPE to Students Registered as Sex Offenders

By Adam Newman, Partner

and Geneva Englebrecht, Associate

Cerritos Office

The California Penal Code requires mandatory registration as a sex offender for persons convicted of specific sex offenses. The law provides a different list of offenses for persons convicted as adults than those convicted as minors. As the law currently stands, a juvenile sex offender’s information is not published and an adult sex offender can petition the Sex Offender Tracking Program to be excluded from the website. It has been reported that approximately 25% of registered sex offenders do not appear on the site. Therefore, school districts should not assume that an adult or minor student whose name does not appear on California’s published registered sex offender website is not a registered sex offender.

Districts who are aware or have reason to believe that a student eligible for special education is also a registered sex offender need to obtain information regarding the specific terms of his/her release. Such information should be available from the Sheriff’s Department or the Department of Probation. For confidentiality purposes, districts should refrain from automatically sharing information pertaining to the student’s special education status with outside agencies. The terms of release will indicate if there are any restrictions placed upon the student such as mandated distances from schools, parks, or his/her victim(s). Districts should consider the victim’s location if that person is a student, district employee, or lives/works near the school site.

If, under the terms of the student’s release, there are no restrictions that would negatively impact the student’s ability to attend his/her current placement and/or the IEP team’s ability to consider the continuum of placement options, the IEP team will need to determine what placement and services will provide the student a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”).

If the offer of FAPE includes a school site that will violate the terms of a student’s release the district may unilaterally change the student’s placement to comply with a valid court order or an order from the Department of Probation, provided that the alternative placement setting also allows the student to receive all of the specialized instruction and related services to which the student is entitled as well as a FAPE in the LRE.

Given the sensitive nature of these issues and the need to carefully scrutinize the terms of court release, districts may wish to consider consultation with legal counsel in identifying the court ordered terms of release and in evaluating whether an alternative placement is necessary and appropriate for the special education student in question.