behavior (such as missing classes or school days), sudden changes in behavior, and depressed or
Special education attorneys can advocate for commercially sexually exploited children
who have not been identified for special education and related services by linking a school’s
Child Find obligations to a child’s problems in school.128 For example, if an attorney suspects a
child is being commercially sexually exploited (and as a result has been missing school), the
attorney can advocate that the school should evaluate the student because the student is missing
school and acting differently than the student has in previous school years. Shifting the narrative
from what the child is doing wrong in school to addressing the root of the child’s changed
behavior can be a helpful tool in determining whether or not the child has an unidentified
disability that is contributing to their problems in school, and what services can be put in place.
On a practical level, this advocacy may take the form of requesting the school to evaluate a
previously unidentified disabled child and specifically assess the reasons for the child’s
attendance issues, request the student be found eligible for special education and related services
based on data collected outside the school, and where the school refuses or has failed to identify
an eligible student, providing compensatory education services (like tutoring or therapy) to help
the child recoup any harm they have suffered from not having appropriate services in place.129
Under the IDEA, children with disabilities may be entitled to an Individualized Education
Program (“IEP”) as the result of several, statutorily defined disability classifications.130 These
classifications include: Specific Learning Disability (“SLD”); Intellectual Disability (“ID”);
Speech and Language Impairment (“SLP”); Other Health Impairment (“OHI”); and Emotional
Disturbance (“ED”).131 While commercially sexually exploited children may be eligible for
services under more than one of these classifications, oftentimes, ED is a disability classification
that is both harder for schools to identify, but can also be the appropriate disability classification
for children who develop mental health diagnoses as a result of their trafficking experiences.132
Under the IDEA, a child may be eligible for special education as a student with an ED if
the child has a condition (including a diagnosed mental health impairment) that “adversely affects
the child’s educational performance,” and where the child exhibits certain characteristics
(delineated in regulations) “over a long period of time.”133 Commercial sexual exploitation can
have a severe impact on a child’s mental health profile, and children who are or have been
commercially sexually exploited may develop depression, anxiety, Post-Traumatic Stress
Disorder (“PTSD”), and other mental health diagnoses. Hence, commercially sexually exploited
children often carry a mental health diagnosis that impacts their learning. Further, the
characteristics that qualify a child for an ED disability classification under the IDEA correspond
with the warning signs of CSEC.134 These signs include, but are not limited to: an “inability to
build or maintain satisfactory interpersonal relationships with peers and teachers” (compare with
127 HUMAN TRAFFICKING, supra note 23.
128 See infra Part IV(B)(1) for a discussion of correlation between CSEC factors and Emotional Disturbance disability classification
129 See infra notes 152-156 (describing due process complaint remedies under the IDEA for parents who disagree with the services
their child is receiving).
130 20 U.S.C.A. § 1414 (b)(4) (West 2014); Letter to Clark, 48 IDELR 77 (OSEP 2007). An IEP “means a written statement for each
child with a disability that is developed, reviewed, and revised in accordance” with the IDEA. 20 U.S.C.A. § 1414 (d)(1)(A)( i).
131 Categories of Disability Under IDEA, NAT’L DISSEMINATION CTR. FOR CHILD. WITH DISABILITIES 2,
nichcy.org/disability/categories (last visited Mar. 3, 2014).
132 This conclusion is based on the authors’ experience.
133 Categories of Disability Under IDEA, supra note 131; 34 C.F.R. § 300.8(c)(4) (2014).
134 See CHILDREN’S ADVOCACY CTR. OF SUFFOLK CNTY., supra note 24 (listing potential warning signs of CSEC). The argument put
forth in this Article, however, is not that the school should be on notice that a child has an emotional disturbance, but that if a school
district is properly screening for potential disabilities, emotional disturbance characteristics would be noted.