Education Archives – Southern California Law Review

The Age of Creativity and Crime

April 2026April 2026Esther K. Hong*

Creativity and crime may seem worlds apart, yet they intersect and overlap in striking ways. While legal scholars have largely ignored the relationship between the two, this Article brings it to the forefront. It examines the legal implications of their connections, particularly for adolescents and emerging adults, who display heightened tendencies toward both.

In many instances, the line that separates creative acts from criminal ones is thin and arbitrary, drawn by the biases of decisionmakers such as police, prosecutors, and school administrators. Creative acts are mischaracterized as criminal ones. Creative expressions are used as evidence of one’s criminality or dangerousness. These mischaracterizations are generally harmful, but they cause particular harm for adolescents and emerging adults, who have developmental traits that increase their associations with crime and creativity, have a developmental need to engage in creativity, and are in a crucial developmental period of growing their creativity. That young people have their creativity criminalized imposes a distinct developmental harm.

These considerations underscore the need to apply an increasingly influential legal framework for young people called the developmental framework. Implementing this framework in a manner that protects and prioritizes young people’s creativity requires changes in the prosecution and punishment of crime, further dismantling of the school-to-prison pipeline, and increased opportunities for creativity. Making such changes will not only enhance young people’s well-being and reduce their risk of becoming entangled in the criminal system, but also pave the way for broader systemic reform for all.

Introduction

adolescents and emerging adults,¹ who display heightened tendencies toward both creativity and crime.²

To begin, creativity is defined by the “two traditional components” of originality and usefulness.³ Even though it is technically a neutral trait—one that “can be applied in many different ways, some of which are benevolent and some of which are unethical and immoral”⁴—it is “universally” presented in a positive light.⁵ The vast majority of scholarship and research about creativity lauds its beneficial effects on individuals, organizations, and society.⁶

It is no wonder then that creativity is so highly desired. The most popular TED Talk of all time—Do Schools Kill Creativity? by Sir Ken Robinson—has more than 79 million views.⁷ In 2023, the World Economic Forum identified “[c]reative thinking” as the top skill that is increasing in importance for the future⁸ and as, currently, the second most essential skill for workers.⁹ Over a decade before in 2010, IBM conducted a global survey of 1,500 CEOs across 33 industries in 60 countries and found that the highest number of respondents identified creativity as the most valuable leadership skill.¹⁰

Creativity spurs new ideas, promotes flexibility, and supports problem-solving and adaptation to new environments.¹¹ Also, while creativity is often associated with the arts, it extends far beyond them. Creativity can be implemented in everyday activities and environments through acts of “little-c” creativity.¹² After all, any thought, action, or work that is original and useful is, by definition, a creative one.¹³ The lucky few are deemed to possess “Big-C” creativity, or eminent creativity, with some receiving this distinction posthumously.¹⁴ Big-C creativity refers to “clear-cut, eminent creative contributions,” and includes works that have won prestigious prizes and have a lasting impact on a field.¹⁵ Unless otherwise specified, this Article uses the term creativity to refer to this positive conception, encompassing both ordinary, everyday expressions of creativity and the more rarefied category of eminent, or Big-C, creativity.

Meanwhile, such descriptions and findings are rarely associated with crime or criminality. Unlike the plethora of sources that praise the positive effects of creativity and offer advice on how to cultivate it,¹⁶ research on crime tends to focus on the opposite—how to reduce crime or how to decrease the likelihood that individuals will commit crimes or recidivate.¹⁷ Crime is often associated with harm to individuals and society at large. One definition of crime provides that it is “the intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under criminal law.”¹⁸

At first glance, creativity and crime may seem unrelated. By some measures, such as their perceived social value or associations, creativity and crime appear to be polar opposites. However, a deeper examination of the two reveals that they have much more in common than intuition or initial impressions may suggest.

First, at their core, both creativity and crime involve some form of deviance or departure “from the norm.”¹⁹ Deviance that is praised is more likely to be characterized as a creative act, while deviance that is negative is more likely to be characterized as a crime. As one framework explains, creativity involves “constructive” deviance, while crime involves “destructive deviance.”²⁰ However, the line separating positive and constructive deviance from negative and destructive deviance often blurred and shifted over time.²¹ History is replete with examples—such as the theory that the earth is not the center of the universe—that were initially branded as destructive, harmful, and even criminal but were later recast as constructive, creative, and innovative.²² Émile Durkheim, the “father figure of sociology,”²³ also observed the intermingling of the two. He wrote that for moral consciousness “to evolve, individual originality must be allowed to manifest itself. But so that the originality of the idealist who dreams of transcending [their] era may display itself, that of the criminal, which falls short of the age, must also be possible. One does not go without the other.”²⁴ In other words, those who fail to align with the prevailing standards of their time may be celebrated as visionaries or punished as criminals. In this sense, creativity and crime are not rigid opposites but fluid, interdependent forces that together help propel societal change.

The two are also linked by the shared traits of people who have a high tendency to engage in creative or criminal acts, such as those with an increased appetite for risk-taking.²⁵ This overlap is especially pronounced during adolescence and emerging adulthood, a developmental period generally understood to span the ages of ten to twenty-five.²⁶ These individuals are referred to as “young people” throughout this Article.

Specifically, for crime, age is not only a “consistent predictor of crime,”²⁷ but also its “strongest predictor.”²⁸ The age-crime curve, considered a “brute fact” of criminology,²⁹ generally shows that crime begins “in adolescence, increases sharply to a peak in late adolescence or early adulthood, and then plummets toward zero for the rest of the life course.”³⁰ Similarly, young people are highly inclined toward creativity—particularly certain forms called divergent thinking³¹ and conceptual innovation³²—and this developmental period is critical for cultivating creative capacity.³³ Taken together, these age-linked patterns in crime and creativity point to a deeper connection between the two. As explained below, recent findings in developmental and neuroscience research shed light on this connection. When integrated into an emerging legal framework that prioritizes young people’s developmental well-being, these insights call for meaningful reforms in law and policy affecting young people.

First, recent developmental and neuroscience research makes clear that the overlap between creativity and crime among young people is not merely coincidental, but fundamentally developmental. Traits associated with adolescence and emerging adulthood, including increased risk-taking and nonconformity, can motivate both creative and criminal behavior.³⁴ Young people’s maturing prefrontal cortex contributes to these developmental traits that are linked to both behaviors.³⁵ Moreover, this period of flexibility and heightened neuroplasticity is a crucial time for fostering young people’s creativity, which itself is essential to healthy development.³⁶

Second, the developmental foundations of creativity and crime take on added significance when viewed through the lens of the developmental framework, an increasingly influential legal framework that applies to young people.³⁷ This framework provides that laws, regulations, and policies that pertain to young people should be primarily guided by developmental and neuroscience research. Such research advances young people’s well-being while also promoting societal interests such as community well-being.³⁸

While the developmental framework’s most visible impact has been in reshaping legal approaches to young people’s relationship to criminality,³⁹ far less attention has been paid to how the framework should also account for their creativity. This Article argues that creativity should likewise be a core consideration in applying the developmental framework. Implementing a developmental framework that prioritizes young people’s creativity should drive significant changes in areas in which creativity and crime overlap and intersect, including criminal and juvenile delinquency prosecutions, punishment, and education. First, greater efforts are needed to identify and eliminate biases, especially racial and class biases, that shape whether acts are perceived as creative or criminal. Even in cases in which there is a clear divide between creativity and crime, such as violent malum in se crimes,⁴⁰ biases can lead decisionmakers to misconstrue a young person’s creativity as proof of their dangerousness and likelihood of committing a crime. One striking example of this misclassification is the use of rap lyrics in criminal trials as evidence of their criminality or likelihood of having committed a criminal act. Although this practice has persisted for decades, it has recently garnered national attention through several high-profile events. These include the criminal prosecutions of rap artists Young Thug and Gunna.⁴¹ The Protect Black Art movement⁴² and documentaries on this topic, including As We Speak that premiered at the 2024 Sundance Film Festival,⁴³ have spurred legislative efforts to limit the use of rap lyrics as evidence in criminal trials. This practice, along with attempts to either directly criminalize or associate criminality with other classic creative expressions like fashion and street art,⁴⁴ speak to a larger problem of misconstruing creativity for crime or criminality, particularly against young people of color or lower classes. Recognizing, addressing, and removing such racial and class biases is essential.

Additionally, a developmental framework that prioritizes creativity also calls for significant changes in education. While education is critical for creativity, schools are currently not providing sufficient opportunities for it, as evidenced by the “creativity crisis” amongst our young people.⁴⁵ Even more worrisome is the increased reliance on criminal processes and tools to control, monitor, discipline, and punish students, leading many schools to serve as pipelines to prison or model prison-like environments.⁴⁶ Dismantling the school-to-prison pipeline, preventing the mischaracterization of creativity as crimes or disciplinary offenses, and increasing opportunities for creativity will create a better educational environment. It will motivate young people to continue their education, which also reduces the risk that they will become entangled in the criminal system.⁴⁷ Creativity enables young people to engage in positive risk-taking,⁴⁸ thus reducing their urge to engage in negative risk-taking,⁴⁹ such as harmful behavior that is clearly criminal.⁵⁰

This focus on the overlap of creativity and crime in young people is intentional but is not meant to be exclusionary. From the outset, it is very important to recognize this period of adolescence and emerging adulthood as a distinct one. Young people suffer distinct developmental harm when their creativity is criminalized or even discouraged to avoid associations with criminality. As developmental psychologist Laurence Steinberg observed, while change is possible in all people, the period between the ages of ten and twenty-five may very well be the “last significant window of opportunity” or final “real opportunity we have to put individuals on a healthy pathway and to expect our interventions to have substantial and enduring effects.”⁵¹ In other words, these changes can produce profound, long-lasting impacts that extend into the rest of young people’s lives.

However, this focus on young people and the developmental framework does not mean it is exclusionary. Rather, as with other meaningful changes in criminal law that have gained mainstream acceptance or evidence of their effectiveness through their initial implementation for youth,⁵² one of the goals of this discussion is to pave the way for widespread changes. As a practical matter, this very population of adolescents and emerging adults make up the majority of those who commit crimes.⁵³ Accordingly, policies and practices directed at this population can generate broader systemic change if they demonstrate their effectiveness and become widely adopted.

These arguments will be addressed in the following four Parts: Part I introduces the general ties between creativity and crime. It describes the conceptual connections that scholars have observed for centuries. It also highlights the commonalities in people with heightened associations with creativity and crime, focusing on young people. Part II then examines the developmental basis that helps explain young people’s strong connections to the two. This basis invites the application of the increasingly influential developmental framework, a legal framework that calls for developmental research to create, shape, and implement laws, policies, and regulations that affect young people. It contends that the developmental framework should prioritize young people’s creativity as it is both a manifestation of their development and integral to their development. The final two Parts apply this modified developmental framework in areas in which creativity and crime overlap and coexist. Part III focuses on the prosecution and punishment of crime and offenses, and Part IV addresses the educational environment. These normative proposals will better protect and foster young people’s creativity while minimizing their associations with crime and criminality. They will also pave the way for broader systemic reform.

I. The Ties Between Creativity and Crime

Creativity and crime overlap and intersect in meaningful ways. While each concept retains unique features, they also share a significant zone of overlap. This shared space consists of a common core of deviance, an essential role in driving societal progress, and a heightened manifestation in certain people, particularly young people.

A. General Similarities

Creativity and crime are conceptually linked. First, they share a common core of deviance.⁵⁴ “All creativity involves products that deviate from the norm, processes that also involve deviation—both in thought and action . . . .”⁵⁵ Similarly, crime also involves deviance from established societal standards. Crime and deviance are often theorized together and defined in relation to one another.⁵⁶ For example, one definition of crime provides that it is “deviance which violates a law.”⁵⁷ It is then the type and form of deviance—constructive versus destructive;⁵⁸ beneficial versus harmful—that distinguish the two.

If we were to imagine these concepts along a “deviance” spectrum with creativity at one end and crime or criminality at the other, there would be certain acts of deviance for which it is self-evident whether the act is constructive or destructive, creative or criminal. For instance, acts that are classified as malum in se—“inherently immoral, such as murder, arson, or rape”⁵⁹—are universally viewed as harmful, destructive, and criminal. The criminal and destructive nature of these acts persists even when they are accomplished in a “creative” manner, meaning in an original and useful way. Conversely, acts such as music, literature, art, or film generally fall on the creative end of the spectrum.

However, for other acts of deviance that fall in the middle of this spectrum, the distinction becomes less clear and determining whether an act should be labeled primarily as criminal or creative can be ambiguous and left primarily to the discretion of decisionmakers. Moreover, for certain acts, society’s characterization of the type of deviance (criminal or creative) can change drastically over time, reflecting society’s differing judgments.⁶⁰ What was once considered criminal behavior may move closer to or fall squarely within the creative end of the spectrum, reflecting changing historical, cultural, and social views. This is especially evident when considering how both creativity and crime play an important role in societal progress and advancement.

That creativity is necessary for societal innovation and development is uncontroversial. Innovation itself means the “actual implementation and execution of creative ideas.”⁶¹ As creativity scholar Arthur J. Cropley observed, societies around the world and throughout history highly regarded creativity as crucial for societal advancement.⁶² For instance, Chinese Emperor Han Wudi, whose empire lasted until 87 BCE, rewarded “innovative thinkers” with “high rank in the civil service.”⁶³ Similarly, “founders of modern science” like Francis Bacon and René Descartes from the sixteenth and seventeenth century recognized the necessity of “scientific creativity” for societal progress.⁶⁴

A more provocative theory, however, is that crime also promotes societal progress. Yet this theory too dates back centuries. Durkheim observed in the nineteenth century that “crime itself may play a useful part in [the] evolution” of moral consciousness in a society.⁶⁵ “Not only does it imply that the way to necessary changes remains open, but in certain cases it also directly prepares for these changes.”⁶⁶ Durkheim illustrated this point through Socrates, who, living under the applicable Athenian law, was “just[ly]” punished as a criminal for his “independence of thought.”⁶⁷ However, over time, it became clear that Socrates’s “crime” was one of necessary creativity and innovation, proving “useful not only for humanity but for his country” as “[i]t served to prepare a way for a new morality and a new faith” for the Athenians.⁶⁸ Similarly, Galileo Galilei was labeled a criminal in the sixteenth century for publishing and disseminating the theory that the earth was not the center of the universe.⁶⁹ For these acts, he was placed under house arrest for approximately ten years until his death.⁷⁰ Over time, however, the “criminal” characterization of these acts shifted and were later recognized as necessary creative and innovative contributions.

Events from the United States also support the theory that crime prompts societal progress and may later be recognized as innovative acts. The civil rights movement, which propelled the United States toward a more just and equal society, was sparked by acts that were criminalized at the time. In March 1955, a fifteen-year-old teenager named Claudette Colvin refused to give up her bus seat to White passengers. As a result, she was arrested, charged with “assault and battery, disorderly conduct and defying the segregation law,” and confined in an adult jail.⁷¹ While there had been similar incidents of Black individuals refusing to give up their seats before this incident—although it does not appear that Colvin was aware of them—“[w]hat was without precedent, though, is Colvin wanted to get a lawyer and she wanted to fight.”⁷² Yet while she sought to challenge the underlying laws,⁷³ the leaders of the Black community chose to wait for another person who would be less controversial, given Colvin’s “mouthy, emotional and feisty” attitude and her eventual out-of-wedlock pregnancy.⁷⁴ This occurred nine months later when Rosa Parks—who, as secretary of the NAACP, was well aware of Colvin’s act—refused to give up her seat.⁷⁵ That refusal officially initiated the Montgomery bus boycott, a “formative turning point of the twentieth century.”⁷⁶ Colvin, meanwhile, eventually joined a federal lawsuit as one of the four plaintiffs that ended the segregation of buses.⁷⁷

Similarly, on February 1, 1960, four college freshmen from Greensboro, North Carolina—“Ezell Blair, Jr. (now Jibreel Khazan), David Richmond, Franklin McCain and Joseph McNeil”—sat at a Woolworth counter designated for White patrons and attempted to order lunch.⁷⁸ They were denied service, heckled, and harassed, but refused to leave, even when the police arrived.⁷⁹ The store manager eventually closed the store early to make everyone leave, including the “Greensboro Four.”⁸⁰ This highly publicized act inspired sit-ins across the South, with more than fifty students eventually arrested.⁸¹ The student-led activism that swept across the country was pivotal to the civil rights movement.⁸² These acts defied the laws and societal norms of segregation in the 1950s and 1960s.

While these acts were described widely at the time as crimes and disobedience, they are now better understood as creative and innovative acts—acts of originality that created substantial progress in society. These then-deviant acts challenged and helped dismantle the existing racial hierarchies in the United States. Consistent with Durkheim’s observations, they illustrate how creativity and crime coexist and how the characterization of certain acts may themselves morph from one to the other over time. The boundary that separates the two is fragile, movable, and at times, arbitrarily drawn.

Lastly, the ties between creativity and crime also appear in fundamental theories and frameworks about creativity such as the “four primary categories,” or 4Ps, of creativity—person, product, process, and press (environment).⁸³ Creativity scholars David H. Cropley and Arthur J. Cropley slightly revised the 4Ps to illustrate how there is much overlap in people engaging in benevolent forms of creativity, referred to as “creatives,” and malevolent forms of creativity, referred to as “resourceful criminals.” Both groups of people share similar processes, personal properties, personal motivations, and personal feelings.⁸⁴ For example, regarding their “personal properties,” both display “openness”; “flexibility”; “lack of inhibition”; and “non-conformity.”⁸⁵ While the Cropleys acknowledged that meaningful differences exist between creativity and crime,⁸⁶ the two are not so distinct that they repel each other like oil and water. To the contrary, even if their similarities are often overshadowed by the largely positive field of creativity research, the study of their overlap is considered a well-established subfield of creativity.⁸⁷ For example, “malevolent creativity” refers to deliberately creative acts that are intended to benefit the wrongdoers but harm or destroy others, such as terrorism, war, and abuse.⁸⁸ “Creative crimes” are those in which individuals use novel means to “achieve statutorily prohibited goals.”⁸⁹ Also, creativity can facilitate or enhance criminal behavior, such as fraud or deceit.⁹⁰

Various scholars throughout the centuries have recognized the overlap between creativity and crime. They share a common core of deviance, play a necessary role in societal progress, and can shift from one to the other over time. History is replete with acts that were previously criminalized but later recharacterized as essential creative and innovative acts that advanced society. Creativity and crime coexist and overlap in meaningful ways.

B. The Overlap in Young People

Creativity and crime are also connected by the types of people who have a higher tendency to engage in creative acts and criminal acts. The similarities have led researchers to explore potential root causes or shared traits that prompt both types of behavior. For example, Hans J. Eysenck’s arousal theory posits that there is a “common biological origin” for creativity and criminality, claiming that individuals with low arousability have a need to engage in behavior that is “impulsive, risk-taking and sensation-seeking . . . in order to raise their arousal to a comfortable level.”⁹¹ Scholars have also independently observed that young people—adolescents and emerging adults—demonstrate heightened tendencies toward creativity and crime.

First, young people are strongly associated with crime and criminality. They are more likely to commit crimes than any other age group. For centuries, criminologists have recognized a correlation between adolescents and emerging adults, and criminal behavior.⁹² Age—more so than any other factor such as gender, race, or ethnicity—has been identified as the “strongest”⁹³ and most “consistent predictor”⁹⁴ of crime. Crime generally begins in one’s adolescence, “increases sharply to a peak in late adolescence or early adulthood,” and then falls “toward zero” for one’s remaining life.⁹⁵ The height of criminal activity takes place between the ages of sixteen and twenty-four.⁹⁶ This phenomenon is captured by the age-crime curve, which has been described as a “brute fact” of criminology.⁹⁷

These connections between crime and young people have been observed for nearly 200 years across different cultures. In the 1830s, Belgian astrologer, sociologist, and mathematician Adolphe Quetelet was the first to formally document this relationship between youthfulness and crime.⁹⁸ Modern crime statistics in the United States continue to support the persistence of the age-crime curve.⁹⁹ While there are secondary debates about this age-crime correlation, such as its causes¹⁰⁰ and slight variances in the data,¹⁰¹ the connection between youth and criminality is strong and widely accepted.

Young people are also strongly associated with creativity. Adolescents and emerging adults are noticeably adept at engaging in creative acts, particularly those involving divergent thinking and conceptual innovation. Moreover, this period of adolescence and emerging adulthood is crucial for developing creativity.

The age-distribution curve observed in criminal behavior is also present in certain creative fields. Researcher Satoshi Kanazawa found that the age distribution of renowned creative jazz musicians, painters, and authors—whom he referred to as “geniuses”—was very similar to the age-crime curve.¹⁰² Both curves have a similar form—they rapidly rise during adolescence, peak in early adulthood, and then quickly decline by midlife.¹⁰³ The “age–genius” curve, however, peaked later than the age-crime curve, likely due to the fact that the genius curve required “special talent” or responses to “evolutionarily novel stimuli and situations.”¹⁰⁴ This correlation between two sets of data—“age and creativity/crime” and “marriage and creativity/crime”—suggests that creativity and criminality may be driven by the same underlying urge to “gain status and power in order to increase success” in producing offspring.¹⁰⁵

While Kanazawa’s study focused on young men, creativity researchers have found no evidence of gender differences in creativity tests.¹⁰⁶ To the extent that there are observable differences in the real world, they are “due to environmental and interactional factors, such as gender discrimination in education and employment, and require an explanation at the sociocultural rather than the individual level.”¹⁰⁷

Recent research also found that the peak timeframe for conceptual innovation occurs during one’s youth. Economists Bruce A. Weinberg and David W. Galenson found that among Nobel Prize laureates in economics, “the probability of a single best year” for conceptual innovation “peak[ed] at age 24.8.”¹⁰⁸ Conceptual innovators are those who “work deductively, applying abstract principles.”¹⁰⁹ They “ ‘think outside the box,’ challenging conventional wisdom and . . . come up with new ideas suddenly.”¹¹⁰ Meanwhile, “experimental innovators,” or those who “work inductively, accumulating knowledge from experience,” tended to be those in their mid-fifties.¹¹¹

Another study—the first to use an algorithmic approach to assess participants’ ability to “produce configurations of high algorithmic randomness”—found that those who had the highest ability to do so peaked at age twenty-five.¹¹² Researchers here utilized a “continuous age range” and tested 3,400 individuals from ages 4 to 91.¹¹³ This skill in creating and recognizing randomness is linked to higher creativity since creativity itself depends on “develop[ing] new approaches and test[ing] different outcomes.”¹¹⁴

Moreover, while some creativity researchers maintain that creativity is a skill that can be developed throughout one’s lifespan, young people continue to show distinct ties to creativity. In addition to their strength in conceptual innovation and their ability to make random connections, they are also more prone to divergent thinking, defined as the “ability to generate a variety of associations to a word or solutions to a problem.”¹¹⁵ Divergent thinking is also viewed as a more reliable “measure[] of creative behavior.”¹¹⁶ Studies show a notable decline in divergent thinking starting in one’s thirties.¹¹⁷ Others identify this time period, particularly “[m]id-to late adolescence (15–20 years) and early adulthood (20–30 years),” as an “important time” for developing divergent thinking skills.¹¹⁸ In general, this “period of increased potential for flexible thinking”¹¹⁹ makes it an ideal period to foster creativity. The “interests, preferences, and leisure activities” that young people engage in during their childhood or adolescence are strong predictors of “later creative productivity.”¹²⁰

Furthermore, young people are more likely than other age groups to view themselves as creative. A recent survey of all generations found that those in the “Gen Z” generation (aged thirteen to twenty-three years) were the most likely to “consider themselves creative.”¹²¹ More than half of those in that generation, or 56% of respondents, saw themselves as creative.¹²² In another study, researchers observed a growth in creative self-efficacy and creative personal identity for people during late adolescence and early adulthood, and a decline in older adults.¹²³ This self-perception regarding one’s ability to be creative is important because “creative self-efficacy [has] well-established links to creativity.”¹²⁴

Also, young people’s creativity is apparent in the real world. Stories permeate our culture of Big-C creatives who, during their adolescence or emerging adulthood, changed trajectories in the arts, technology, or daily life. For example, while deejaying his first block party in the Bronx, sixteen-year-old DJ Kool Herc (Clive Campbell) introduced a style of music that many now recognize as the birth of hip-hop.¹²⁵ Beyoncé, Rihanna, and Taylor Swift each signed their first recording contracts at age fifteen.¹²⁶ Major tech companies like Facebook, Tumblr, and Bumble were all founded by nineteen-year-olds; Snapchat and Twitter were created by those in their early twenties.¹²⁷ At twenty-one years of age, Steve Jobs and Steve Wozniak co-founded Apple.¹²⁸ Larry Page and Sergey Brin were twenty-five when they created Google.¹²⁹ Even Galileo’s early scientific discoveries, such as the law of the pendulum, originated from his observations of a swinging lamp at a cathedral when he was just nineteen years old.¹³⁰

In summary, researchers have identified young people’s strong associations with creativity through an age-creativity curve, as well as an adeptness at conceptual innovation and divergent thinking. They have also identified this period of adolescence and emerging adulthood as a critical one for developing one’s creativity. Real-life examples of young people’s Big-C creative acts, as well as their elevated self-assessment of their creativity, provide further evidence of these strong associations. These ties are consistent with the long-established associations between young people and crime.

As the next Part explains, these heightened connections are not merely coincidental. Rather, they are largely developmental. Recognizing the underlying developmental basis for young people’s tendencies toward creativity and crime is significant because it invites the application of the developmental framework, an increasingly influential legal framework that prioritizes the development of young people in laws, policies, and regulations that affect them.

II. The Relevance of the Developmental Framework

The heightened associations between youthfulness and crime, and youthfulness and creativity, do not appear to be mere coincidences or random occurrences. Instead, recent research on young people’s developmental traits and brain development shows that this phenomenon is largely developmental. That developmental and neuroscience research explains the shared basis for creativity and crime in young people is itself noteworthy. However, this understanding takes on even greater significance in the present age as the growing influence of the developmental framework encourages

the incorporation of such findings into laws, regulations, and policies that impact young people.

This Part begins by explaining the developmental basis for young people’s strong associations with creativity and crime. It then explains how creativity is not only an expression of their development but also necessary for their healthy development. It then concludes by explaining the developmental framework, detailing both its origins and evolution, and arguing that creativity should be prioritized in this framework as it is vital for young people’s developmental well-being.

A. Developmental Basis for Creativity and Crime

The idea that creativity and crime may have a shared origin is not entirely new.¹³¹ However, recent research sheds light on why young people in particular have stronger inclinations toward creativity and crime. Adolescents and emerging adults share a common developmental basis for their heightened connections to criminal and creative behavior. This consists of young people’s general developmental traits, including their brain development.

First, the stages of adolescence and emerging adulthood are marked by traits that are linked to both criminal and creative behavior, including increased risk-taking as well as nonconforming behavior, especially toward authority figures.¹³² Adolescents generally have “heightened sensation seeking and still-maturing impulse control, as well as a greater willingness to take risks.”¹³³ This is not limited to just American adolescents but applies to adolescents worldwide. Steinberg—whose research played a pivotal role in the Supreme Court’s landmark cases that ushered in the developmental framework for young people¹³⁴—conducted a cross-national study of adolescents, including in the United States, “China, Colombia, Cyprus, India, Italy, Jordan, Kenya, the Philippines, Sweden, and Thailand.”¹³⁵ Steinberg found that all adolescents engaged in risky behavior and were developing their impulse control.¹³⁶ However, the specific forms of risk-taking varied as “different countries [gave] young people differing levels of opportunity to try risky behaviors.”¹³⁷ For instance, in Jordan, where access to alcohol is highly restricted, adolescent-drinking rates remained low, but other risky behavior that was more accessible, like smoking, rose sharply during adolescence.¹³⁸ These findings suggest that while risky behavior may manifest in various ways, “the underlying inclinations that lead adolescents to take risks appear to be universal.”¹³⁹

Emerging adults are also more likely to engage in risky, nonconforming behavior. Until around age twenty-five, emerging adults are “still developing the capacity to rein in their impulses, emotions, and susceptibility to peers, which explains why so many risky behaviors—like crime, binge drinking, reckless driving, and unsafe sex—peak during this stage, and why so much of this risky behavior occurs in groups,”¹⁴⁰ as they remain inclined to peer pressure.¹⁴¹ The similarities between adolescence and emerging adulthood are so strong that Steinberg labeled the entire age range from ages ten to twenty-five as adolescence,¹⁴² with the period from nineteen to twenty-five referred to as “late adolescence and the transition to adulthood” or “young adulthood.”¹⁴³ Many other scholars refer to the stage of eighteen to twenty-five years old as emerging adulthood.¹⁴⁴

These developmental traits of heightened risk-taking and nonconforming behavior against authority contribute to both crime and creativity. When it comes to crime, researchers have observed that both adolescents and emerging adults are more likely to commit criminal acts due to their developmental traits, such as risk-taking and nonconformity.¹⁴⁵ Similarly, creativity also “involves taking chances and risks.”¹⁴⁶ In essence, “[r]isk taking is a distinguishing factor of creative individuals—they are not afraid of the unknown—in fact it is the unknown that arouses their curiosity.”¹⁴⁷ Risk-taking and creativity “share a common domain of factors

that affect them,”¹⁴⁸ including the traits of “open-minded[ness],” “curious[ity],” “courage,” “out-of-box thinking,” “attract[ion] to complexity,” and “non-conforming behavior.”¹⁴⁹

Second, young people’s brain development also helps to explain their inclinations toward creativity and crime. Neuroscience research shows that young people’s ongoing brain growth plays a critical role in shaping their developmental traits described above.¹⁵⁰ The prefrontal cortex, responsible for various executive functions like self-regulation and self-control,¹⁵¹ continues to develop until around age twenty-five.¹⁵²

Scholars and courts have explicitly recognized the underdeveloped prefrontal cortex as a reason why adolescents and emerging adults are more prone to criminal behavior than other age groups,¹⁵³ thus making them less culpable for crimes and having a greater capacity for change.¹⁵⁴

Similarly, foundational research in creativity and neuroscience also reveals that creativity is associated with the suppression of the brain’s dorsolateral prefrontal cortex region,¹⁵⁵ which is responsible for “planning, inhibition, and self-censorship.”¹⁵⁶ While studies also show that brain activity for creativity involves multiple regions of the brain, this specific area in the prefrontal cortex continues to be associated with creative activity and thought.¹⁵⁷ Suppression of this region appears to lead to greater creative activity.¹⁵⁸ It is therefore unsurprising that adolescence and emerging adulthood—when the prefrontal cortex is still not fully developed—is such a critical period for creativity.

In sum, creativity and criminality in young people stem from their developmental traits, including their ongoing brain development. However, of the two, creativity is also identified as essential for healthy development.

B. Young People’s Developmental Need for Creativity

While creativity and criminality stem from similar developmental traits and brain development, creativity is essential for healthy development in adolescents and emerging adults. The need to prioritize creativity is even more urgent in light of what scholars have called a “creativity crisis” among youth in the United States.¹⁵⁹ Kyung Hee Kim found that young people’s creative thinking skills have “significantly decreased” since the 1990s.¹⁶⁰ She analyzed over 270,000 results from the Torrance Test of Creative Thinking—the “most commonly used creativity test”¹⁶¹—that kindergarteners to twelfth graders took from 1966 to 2008.¹⁶² Her research revealed that there was a “steady and persistent” decline in creative thinking scores in the most recent two decades covered by her study (1990 to 2008).¹⁶³ Her 2021 study similarly continued to find declines in indicators for creativity in students.¹⁶⁴

This stage of adolescence and emerging adulthood is a critical time for creativity, as creativity is an essential factor in development and identity formation. For young people, the “rapid neurodevelopmental changes, including the development of more advanced levels of objective, rational, hypothetical, abstract, and metacognitive thinking,” make this period “a critical period for creative identity development.”¹⁶⁵ Identity formation is fundamental.¹⁶⁶ As biologist and naturalist Edward O. Wilson wrote, creativity is an “innate quest for originality” that is “the unique and defining trait of our species; and its ultimate goal, self-understanding.”¹⁶⁷ During this period, young people are “susceptible to social, emotional, and relational experiences” that “can help support or potentially suppress creative identity development.”¹⁶⁸ Young people’s neuroplasticity also encourages their creativity.¹⁶⁹

Moreover, creativity supports problem-solving, adaptability, and resilience, all essential traits for young people’s development.¹⁷⁰ Creativity enables young people to “approach problems insightfully” and to maintain a positive outlook on life even amidst adversity.¹⁷¹ It encourages one to be flexible in confronting changes and opportunities.¹⁷² It enhances resilience, which is defined as “the process of, capacity for, or outcome of successful adaptation despite challenging or threatening circumstances.”¹⁷³ Resilience gives young people the “ability to bounce back from risks or failures and to adapt to dynamics and success.”¹⁷⁴ One reason that creativity and resilience are linked is that creative acts “provide a ‘safe haven,’ ” especially in times of hardship and stress.¹⁷⁵ For example, one study showed a strong correlation between unhoused youths who attended a drop-in art center and their increased resilience.¹⁷⁶

Another study underscored that the interdependent relationship between resilience and creativity is also apparent in group settings. An experiment involving undergraduate students found that a group’s resilience is “significantly correlated” with the group’s creativity.¹⁷⁷ Resilience positively increases creativity because resilience positively influences two mediating variables: a group’s belief in their ability to produce creative outcomes (i.e., creative efficacy) and trust amongst group members.¹⁷⁸ This finding is also significant because young people are highly influenced by peer pressure,¹⁷⁹ and creativity can serve as a constructive form of peer influence.

Creativity also enhances enjoyment and overall well-being for young people. Creative activities often induce “flow,” or an “exhilarating, pleasurable moment of complete absorption.”¹⁸⁰ Engaging in creative pursuits boosts self-esteem.¹⁸¹ These effects are important for the well-being of young people.

In summary, creativity is not just an outward expression of young people’s development—it also shapes it. By facilitating identity formation, problem-solving, resilience, self-esteem, and enjoyment, creativity plays a critical role in their overall well-being. This developmental basis for young people’s heightened connections to creativity and crime underscores the need for the developmental framework to recognize and prioritize creativity as a key developmental goal.

C. The Developmental Framework

The developmental framework provides that developmental and neuroscience research related to young people should guide the creation, interpretation, and application of laws, regulations, and policies that affect them. While the state has long accounted for differences in the age and maturity of young people, this modern iteration is distinct because rather than relying on “simplistic views of childhood,”¹⁸² state actors are now increasingly relying on a much more reliable “body of psychological and biological research on child and adolescent development” and emerging adulthood development, as well as evidence on the “effectiveness of these policies.”¹⁸³ This framework has grown in scope and significance since its creation in the early 2000s.

This modern developmental framework emerged in the early 2000s when the Supreme Court issued a series of four landmark decisions under the Eighth Amendment that incorporated developmental research to interpret the constitutional rights of youth under eighteen in sentencing.¹⁸⁴ Each case produced a noteworthy change, such as a prohibition on the death penalty and limitations on life imprisonment without parole sentences for youths who committed crimes before the age of eighteen.¹⁸⁵ However, collectively, these cases are viewed as revolutionary,¹⁸⁶ creating a seismic shift in the legal landscape for youth under eighteen, and more recently, for emerging adults aged eighteen to twenty-five.

The developmental framework’s most significant impact has been on juvenile and criminal laws and policies for those under eighteen.¹⁸⁷ However, the framework has since expanded in two major ways. First, developmental and neuroscience research is shaping areas of the law beyond juvenile and criminal law for youth under eighteen. Second, this research is increasingly impacting emerging adults, or those aged eighteen to twenty-five. These two expansions will be described in turn.

The first expansion of the developmental framework has been the growing incorporation of developmental and neuroscience research beyond just the juvenile and criminal systems. Emily Buss articulated a broad theory of “developmental jurisprudence,” which calls for the law to be a “developmental agent” that “shapes how children grow up.”¹⁸⁸ Buss stated that the “law should aim to minimize the developmental harm it imposes and maximize the developmental benefit it provides.”¹⁸⁹

Consistent and “compatible” with Buss’s theory, Clare Huntington and Elizabeth Scott created the “Child Wellbeing framework”¹⁹⁰ to guide all regulations and policies affecting youth under eighteen to meet the primary goal of “promot[ing] child wellbeing.”¹⁹¹ The Child Wellbeing framework consists of three key principles, the first of which is the primacy of the developmental framework, or the “incorporation of developmental knowledge,”¹⁹² which includes “psychological and biological research on child and adolescent development, as well as growing evidence about the effectiveness of policy interventions.”¹⁹³ This Child Wellbeing framework applies broadly to laws and policies that affect youth under eighteen, “including systems of state intervention, parental rights, and children’s rights, as well as, to a much lesser degree, policies of state support for families.”¹⁹⁴ Healthcare and education policies have also been shaped by such research.¹⁹⁵ Further evidence of its influence is seen in the inaugural Restatement of Children and the Law, which is primarily guided by the developmentally centered Child Wellbeing framework.¹⁹⁶ This again underscores the broad and far-reaching impact that the developmental framework has—and will continue to have—on laws, regulations, and policies affecting youth.

The second expansion of the developmental framework has been its application to emerging adults.¹⁹⁷ Increasingly, researchers and advocates are emphasizing the developmental similarities between adolescents and emerging adults, including their shared “risk-taking, impulsivity, tendency to be overly motivated by reward-seeking behavior, and high susceptibility to peer influence.”¹⁹⁸ Like adolescents, emerging adults’ prefrontal cortexes are still developing.¹⁹⁹

These findings have already led some lawmakers to propose or enact laws and policies that account for these developmental differences.²⁰⁰ Advocates recognize that the developmental framework is pivotal for the “burgeoning field of Emerging Adult Justice.”²⁰¹ If the legal landscape for emerging adults were to follow the progression for adolescents—since they share similar developmental traits—then the developmental framework is poised to have an even greater influence on the laws, policies, and regulations that impact emerging adults in the criminal system and beyond.

Thus, at this pivotal inflection point, as the developmental framework expands its influence, creativity should become a central focus and priority given its importance to young people’s development. The following Parts explore how prioritizing young people’s creativity should reshape policies and practices in areas in which creativity and crime overlap and intersect—namely, in the prosecution and punishment of crime, as well as in education. These normative proposals also further illustrate the close ties between creativity and crime.

III. The Prosecution and Punishment of Crime

Implementing a developmental framework that prioritizes young people’s creativity demands meaningful changes in the prosecution and punishment of crime for young people. These proposals not only center and protect young people’s creativity to foster their healthy development, but they also provide further evidence of the deep connections between creativity and crime.

Prosecuting Crime

If, as Durkheim posits, creativity and crime coexist,²⁰² then the line dividing creative and criminal acts may not always be clear-cut. Durkheim himself recognized this ambiguity when he intertwined the creative person with the criminal. He wrote, “[S]o that the originality of the idealist who dreams of transcending his era may display itself, that of the criminal, which falls short of the age, must also be possible. One does not go without the other.”²⁰³ Durkheim’s discussion of Socrates further underscores the blurriness between the two and how one can be misconstrued for the other. Although Socrates represented an innovative way of thinking and a new philosophy that Durkheim clearly valued since he said that it prepared the Athenians for the future,²⁰⁴ he also observed that in the society and time Socrates lived in, “his condemnation” as a criminal “was entirely just” under the prevailing laws.²⁰⁵

This blurring between creativity and crime is not merely confined to the past. Creative acts continue to be misconstrued as crimes or as evidence of one’s criminality, particularly for young people of color. While criminalizing creativity is harmful in general, it is especially damaging for young people because it harms their development in multiple ways. It unjustly labels them as criminal or dangerous; increases their exposure to arrest, prosecution, and punishment for crimes or offenses; and suppresses their creativity.

To be clear, not all crimes and offenses committed by young people should be reframed as acts of creativity. But recognizing the substantial overlap between the two and working to reduce their mischaracterization is crucial. As the deviance spectrum introduced in Part I illustrates, this problem is most acute in the middle of the spectrum, in which the distinction between creative and criminal behavior is less clear. The concern, however, also extends to clearly criminal conduct at the end of the spectrum, in which a young person’s creative acts may be treated as evidence of general criminality or even as proof that the person committed an alleged, clearly criminal offense. When young people engage in nonconforming behavior or challenge societal norms and expectations, discretion and biases—particularly those based on race and class—impact whether their actions are interpreted as creative or criminal, or as indicative of heightened criminality. Confronting and eliminating these biases, as well as implementing innovative solutions that directly limit the criminalization of creativity, are all essential.

The Significance of Discretion and Bias

Discretion and bias can tip the scales between creativity and crime. Even with established frameworks in place to help distinguish between criminal and creative acts, discretion and bias can drive the criminalization of creative expressions and the mislabeling of creativity as evidence of criminality, especially for young people of color.

Most people can agree that certain actions—no matter how creatively executed—should be considered crimes. For example, Paul Butler’s reliance on traditional categorizations and grading of actions (albeit in a different context of jury nullification²⁰⁶), such as malum in se versus malum prohibitum,²⁰⁷ or violent versus nonviolent offenses, provides an initial way for separating creative acts from criminal ones, even though these categories are far from perfect.²⁰⁸ As Butler recognizes, the most serious offenses, or “violent malum in se crimes like murder, rape, and assault,” warrant no allowance from their criminalization.²⁰⁹ In this context, this means that violent malum in se actions should be viewed as crimes, regardless of whether the acts were committed in an original or creative way. Such acts reside at the end of the deviance spectrum reserved for clearly criminal conduct. Meanwhile, nonviolent malum in se actions, such as perjury,²¹⁰ as well as nonviolent or victimless malum prohibitum actions,²¹¹ warrant closer examination. The latter category demands the most scrutiny, as questions about their criminalization are most vexing and difficult to resolve.

Yet these categorizations are only a starting point. This is because the determination of what is creative or criminal, as well as the seriousness of the crime, frequently rests on the discretion of those within the juvenile and criminal systems, such as police officers, prosecutors, and juries charged with fact-finding. Law enforcement exercises “tremendous discretion” over which “laws to enforce and against whom.”²¹² Prosecutors, too, wield “vast discretion” to decide “whether and when to charge a person with a crime.”²¹³ Discretion is at its peak in the context of disorderly conduct crimes²¹⁴ “[w]hen broadly worded statutes intersect with minor misconduct.”²¹⁵ Biases, particularly “racial and economic biases,” infuse the enforcement of such laws,²¹⁶ and there is much more wiggle room for such conduct to be characterized as either criminal or creative.

Bias and discretion do not merely shape how acts are categorized in the middle of the deviance spectrum, they also skew and distort perceptions of creative behavior. For young people, especially young people of color and those from lower socioeconomic classes, creative expression risks being interpreted as evidence of their criminality and dangerousness, making it appear more likely that they are guilty of clearly criminal conduct. Recognizing the effects of bias and discretion is an important first step toward eliminating them. The next Section explains how bias and discretion influence how one determines individuals’ associations with criminality or creativity, and the following Section examines how bias and discretion affect whether a given act is interpreted as creative or criminal.

Associations with Criminality or Creativity

In the late 1990s, the meteoric rise of McKinley “Mac” Phipps Jr.’s rap career abruptly ended after a jury found him responsible for the fatal shooting of a fan during his concert in Louisiana.²¹⁷ At just 22,²¹⁸ Phipps was charged with first-degree murder, and eventually convicted of manslaughter by a 10-2 jury vote.²¹⁹ His conviction, widely viewed as a wrongful conviction,²²⁰ was controversial for the heavy use of Phipps’s own rap lyrics during his criminal trial. Prosecutors cherry-picked lyrics from his songs, took them out of context, and strung together lyrics from different songs to portray him “as the brutal character in his songs.”²²¹ The jury foreman later shared that Phipps’s music and rap lyrics helped secure the guilty verdict.²²² He stated that “rap got his mind all messed up” and Phipps was “living a life that he thought he was a gangsta,”²²³ thus making it more likely that Phipps was the kind of person who would “shoot somebody in a public place on the dance floor.”²²⁴ Phipps served 21 years of his 30-year sentence before the governor of Louisiana granted him clemency in 2021.²²⁵

Phipps’s case is sadly not an anomaly. Scholars studying traditional expressions of creativity—music, fashion, and art—have found that biases and stereotypes distort the creativity of young people of color and lower socioeconomic classes as proof of their criminality and dangerousness.

As a prime example, rap music has been prominently used to establish a narrative of criminality against young men of color. They have been introduced in criminal cases to establish motive, intent, or proof of confessions.²²⁶ As Andrea Dennis and Erik Nelson observed from their study of cases from 2009 to 2019 in which rap lyrics were introduced as evidence, the defendant was “almost always a young man of color.”²²⁷ More specifically, nearly 95% of the defendants in the approximately 500 cases who had rap lyrics used in their criminal cases were Black or Latino young men.²²⁸ Dennis and Nelson described this association between rap music and crime as a modern iteration of a historical practice, in which “[B]lack art and expression” were often viewed “as a threat” and “criminally regulated.”²²⁹ This includes “slave drumming and songs[,] . . . Jim Crow–era ballads,” and creative acts expressed “in cabarets and jook joints, and during the civil rights and [B]lack nationalist eras.”²³⁰ The criminal system was used to “control [B]lack speech and creative endeavors.”²³¹ They also found that “[n]o other fictionalized form, musical or otherwise,” faced similar treatment in court.²³² This includes country music, which “has many of the same themes” as rap music.²³³

That juries and prosecutors may associate rap music or music from minority artists with criminality has also been found in research experiments. Carrie Fried conducted a series of experiments to test whether the label of rap music or the race of the artist produced different reactions.²³⁴ She took lyrics from a folk song about a young man who “hunts down and kills a police officer”²³⁵ and found that a majority of the respondents found the folk song to be more offensive than rapper Ice T’s “Cop Killer.”²³⁶ She then presented these folk lyrics to three groups and identified the lyrics as either folk, rap, or country.²³⁷ Those who were told that the lyrics were from a rap song reacted more negatively, including finding the lyrics to be more offensive, more of a threat to society, and more in need of regulation.²³⁸ In a subsequent experiment, she presented the same folk lyrics and, without identifying the genre of music, presented one group with a picture of a Black singer and another group with a picture of a White singer.²³⁹ Those who were told that the artist was Black had a stronger negative reaction, such as finding it more offensive, more of a threat to society, and more in need of regulation.²⁴⁰ Fried observed that “[t]he exact same lyrical passage, which is acceptable as a country song or when associated with a White artist, becomes a dangerous, offensive song in need of government regulation when it is a rap song or associated with a Black artist.”²⁴¹

Biases have also led to fashion being associated with criminality, especially against young people from marginalized backgrounds. When young people dressed in ways that departed from what was expected, their fashion choices were interpreted as evidence of their criminality. Zoot suits are an example from the past, while in modern times, streetwear such as hoodies and sagging pants has been directly criminalized or presented as proof of criminality and dangerousness.

The iconic zoot suits of the 1930s and 1940s departed from the traditional suit with their “high-waisted pants with baggy, pegged legs and a long coat with wide lapels”²⁴² that exaggerated one’s shoulders, torsos, and limbs.²⁴³ They originated in Harlem in the 1930s and were initially worn by African American young men.²⁴⁴ While people of various cultures and class eventually adopted the style,²⁴⁵ zoot suits were most commonly associated with the “youth subcultures” of Mexican Americans and African Americans.²⁴⁶ Young people had various motivations for wearing zoot suits, ranging from pure style to activism.²⁴⁷ However, as historian and professor Kathy Peiss documented, the zoot suit eventually became associated with criminals and gang members during the war, with some people seeing the suit as symbolizing dangerousness.²⁴⁸ The narrative took on such force that in June 1943, a group of roughly 50 Navy servicemen and other civilians looked for, attacked, and stripped those wearing zoot suits, particularly Mexican American youth.²⁴⁹ The Zoot Suits Riots in Los Angeles lasted for 5 days and, in a bewildering result, led to the arrest of approximately 600 Mexican American young men, far outnumbering the arrests of the servicemen or people who initiated the riots.²⁵⁰ While efforts to pass an ordinance that banned the zoot suit did not succeed in the Los Angeles city council as widely believed, public officials in general discouraged their wear.²⁵¹ The zoot suit became “the exception to the government’s policy of shoring up fashion and style” during the war.²⁵² Peiss holds the state responsible for the criminal and unpatriotic narratives associated with the suit. She explained, “[I]t was the police and governmental authorities that created the political meaning of the zoot suit, as they sought a threatening symbol to describe and encapsulate an array of behaviors and demeanors that to them made little sense.”²⁵³

The modern iteration of this phenomenon involves streetwear. For many Black and Brown youth, their nonconforming, creative wear is interpreted as a criminal marker. Sagging pants have been associated with crime for decades²⁵⁴ and, in some jurisdictions, is actually a crime to wear.²⁵⁵ Hoodies, too, have signaled criminality. As criminologist Richard Moran observed, “Over the last 25 years, the hoodie has been associated with street crime.”²⁵⁶ It was the “uniform of MCs, stickup kids, graffiti artists, and b-boys” and a “staple of hip-hop culture.”²⁵⁷ The adoption of hoodies amongst “skateboard kids” and “punk-rockers” further made it a “symbol of disruption.”²⁵⁸ This association between hoodies and criminality received national attention with the killing of Trayvon Martin. George Zimmerman called 911 on Martin, describing him as a “suspicious guy” who was wearing a “dark hoodie, a gray hoodie.”²⁵⁹ A conservative commentator opined that the hoodie could not be rehabilitated and conveyed “a sinister signal.”²⁶⁰ The commentator advised that parents stop their children from wearing it, except in situations in which it was presumably more expected, such as when it rained or “at a track-and-field event.”²⁶¹ Meanwhile, when start-up founders and techies departed from the typical professional dress code and began wearing hoodies and casual streetwear, their nonconforming fashion choice conveyed a different message—one of creativity and innovation.²⁶² As Margaret O’Mara observed, from early in our country’s history, an innovator’s disheveled dress and appearance signaled their brilliance.²⁶³ It implied that they did not have enough time to care about their clothing.²⁶⁴ While both groups wore similar clothing in a counter-cultural manner, one was associated with criminality, while the other with creativity.

Street art provides yet another example of how opposing messages of criminality or creativity can be shaped by the biases that society has toward those who create the art. As Jessica Silbey wrote, “Street art is a form of artistic expression that has existed throughout human civilizations . . . .”²⁶⁵ Graffiti, which has been associated with young people from marginalized backgrounds, has long been weaponized to create a strong narrative of their criminality. From the 1970s to 1990s, New York City officials used racist stereotypes against Black and Latino young men to implement a criminal response against graffiti that was marked by its “brutality and intolerance.”²⁶⁶ In the 1970s, Mayor Ed Koch took advantage of the growing public sentiment against stereotypical “poor [B]lack and Latino communities” to carry out his war on graffiti, mostly on subway trains.²⁶⁷ Mayor Rudy Giuliani continued the graffiti war in spaces beyond the subway, relying again on narratives about the connections between crime and marginalized youth from poor neighborhoods.²⁶⁸

In contrast, the act of “yarn bombing”—or affixing knitted messages or drawings in public spaces—which also technically violates many criminal statutes that prohibit public vandalism,²⁶⁹ has been presented as a purely creative act. It has been covered in the media with headlines such as Dallas Yarn Bombers Brings Joy to Community²⁷⁰ or ‘Knotty Harts’ Yarn Bombs Spread Anonymous Color, Positivity Throughout Gulf Coast.²⁷¹ One news story described yarn bombing as “[a] crafty kind of graffiti,”²⁷² and while it noted that “[c]ritics of graffiti in general might call it vandalism,” it presented the act as an entirely positive expression of art and creativity.²⁷³ The possibility of arrest or criminal consequences for yarn bombing was made entirely in jest.²⁷⁴ Scholars have observed that yarn bombing is most often carried out by “[W]hite, middle-class women.”²⁷⁵ The “public imagery” is that “yarn bombers” are described “as either mysterious but harmless urban knitters, or friendly-faced nannas.”²⁷⁶

While yarn bombing and graffiti may violate the same vandalism laws, there is an immediate association of yarn bombing with creativity, art, and joy, while, in general, graffiti carries an aura of criminality. And even though differences exist between yarn bombing and graffiti, such as the difficulty in removing the latter or the messages that they display, they do not fully account for the immediate and almost knee-jerk association of one form of vandalism with crime and the other with creativity. To further underscore that graffiti is not inherently criminal, its growing commodification has altered its reception and messaging. The works of certain graffiti artists, such as Banksy and Jean-Michel Basquiat,²⁷⁷ sell for millions. Landlords, developers, brands, and government employees worldwide are increasingly using the counter-cultural message behind graffiti to market and sell their products and properties.²⁷⁸

Biases rooted in race and class against young people affect how their creative endeavors—even traditional ones in music, fashion, and art—are interpreted. For young people of color from lower socioeconomic classes, their creative expressions, such as rap, streetwear, and graffiti, have signaled their dangerousness and criminality. Meanwhile, other forms of music with violent lyrics, street art that invaded public spaces without permission, or similar counter-cultural casual wear relayed creativity. As discussed in the next Section, biases also impact whether nonconforming or unexpected actions are labeled as creative or criminal.

Labeling Acts As Creative or Criminal

Ahmed Mohamed and Kiera Wilmot met for the first time at the White House’s Astronomy Night.²⁷⁹ Though from different states and backgrounds, they shared an unlikely bond: both had been arrested and criminally charged for science experiments.²⁸⁰ Mohamed, a fourteen-year-old Muslim student from Texas, built a homemade clock to impress his high school engineering teacher.²⁸¹ But when the clock beeped in a different classroom, that teacher mistook it for a bomb and the school called the police.²⁸² Mohamed was arrested, charged with making a hoax bomb, and suspended from school.²⁸³ Wilmot, a sixteen-year-old Black honors student from Florida, had a similar experience. After her science project unexpectedly exploded in class, she was arrested, charged with two felonies, and expelled from school.²⁸⁴

For both teens, their stories went viral and led to their criminal charges eventually being dropped. Their arrests, criminal charges, and school disciplinary actions were widely condemned as acts of Islamophobia and anti-Muslim bigotry in Mohamed’s case,²⁸⁵ and as racism in Wilmot’s case.²⁸⁶ By recognizing and addressing the racial and religious biases that had led school officials and police officers to view both acts as crimes, the teenagers’ actions were later described in traditional and social media as acts of creativity and innovation that had been inappropriately criminalized.²⁸⁷

While Mohamed’s and Wilmot’s stories received national attention, similar stories have fallen under the radar, especially when the exercise of discretion resulted in a favorable reaction that was not newsworthy. After Mohamed’s and Wilmot’s stories went viral, many shared how they or their children engaged in similar acts that could have been criminalized but were instead rewarded for their creativity or merely received light reprimands.²⁸⁸ In Wilmot’s case, numerous “scientists and science fans” on Twitter shared how they also had blown things up, but were “congratulated on their curiosity” or received a “slap[] on the wrist.”²⁸⁹

This double standard has been observed by Kristin Henning who spent decades defending indigent children. She recounted the story of a thirteen-year-old Black student who, inspired by a movie, made a fake Molotov cocktail at home.²⁹⁰ While it was not functional—as the household materials would never have caught on fire—when the teen mistakenly took it to school after leaving it in his backpack, he was arrested, charged with multiple offenses, detained, suspended from school and extracurriculars, and required to meet with a probation officer, attend anger management classes, and undergo urine testing for drugs.²⁹¹ While his case was eventually dismissed, he endured months of school and court officials treating him as a criminal.²⁹²

Initially, Henning attributed the teen’s harsh treatment to the increased sensitivity to violence in schools.²⁹³ But her perspective changed after she learned of a nearly identical case involving a White student from another district. There, the student’s mother shared that her son’s consequence was a positive one: enrollment in the chemistry class to further explore his interest in the sciences.²⁹⁴ Henning ultimately described her client’s experience as a classic manifestation of the criminalization of Black youth.²⁹⁵ School administrators, police officers, the prosecutor, and the judge all viewed the Black teen’s act as dangerous, harmful, and criminal, when they could have viewed it as Henning described it—as an act in which the youth “was just being creative.”²⁹⁶ This experience is consistent with her

research that “typical adolescent behaviors” are increasingly characterized as crimes, especially for youth of color.²⁹⁷

It is necessary to recognize that bias also plays a powerful role in influencing which young people are encouraged to take risks and break rules in the pursuit of creativity and innovation. The contrast is evident in tech, in which risk-takers and rule breakers are revered and in high demand. Paul Graham, co-founder of the Y Combinator start-up accelerator, famously wrote in 2005 that investors “should be funding hackers instead of suits.”²⁹⁸ This revolutionary mindset that the “best founders were hackers” transformed the venture-capital industry.²⁹⁹ Called “Silicon Valley’s Start-Up Machine,”³⁰⁰ Y Combinator’s first cohort included the founders of Reddit and Sam Altman (now CEO of OpenAI), and has been credited with “chang[ing] the world” for the start-ups it supported, including Airbnb, Dropbox, Instacart, Stripe, and Substack.³⁰¹

In tech, acts that are unethical, or even outright illegal, have been overlooked because they were framed as innovative and creative. For instance, Sean Parker and Shawn Fanning were teenagers when they created a peer-to-peer music-sharing program Napster that upended the music industry.³⁰² Even as investors questioned whether the technology was “legal or not,” they still gave Napster multiple investment offers.³⁰³ Meanwhile, Elizabeth Holmes was long hailed as a genius for a technology that proved nonexistent. At the age of nineteen, she dropped out of Stanford University and founded Theranos to detect health conditions from a few drops of blood.³⁰⁴ Her “creative disruption” brought in large investments and wide acclaim, and she eventually defrauded investors and regulators and harmed

patients.³⁰⁵ While she was eventually convicted of multiple crimes, it took an in-depth investigation by a journalist to shatter the illusion.³⁰⁶

Mark Zuckerberg and Facebook’s rise to power have also been shrouded with allegations of unlawful behavior. While working for his classmates at Harvard on a similar concept, Zuckerberg allegedly stalled their project and launched Facebook instead.³⁰⁷ The classmates later created their own site, ConnectU, but evidence showed that Zuckerberg hacked into ConnectU’s website and altered user information to make the “site less useful,”³⁰⁸ including changing the privacy settings to make them less visible and deactivating twenty accounts.³⁰⁹ Credible allegations also support that he took users’ private login data from Facebook to hack into their private email accounts and read emails.³¹⁰ Even before Zuckerberg’s foray into Facebook, he faced Harvard’s Administrative Board to address charges for “breaching security, violating copyrights and violating individual privacy” for “his unauthorized use of on-line facebook photographs” for a website that ranked students’ attractiveness.³¹¹ Zuckerberg declined to disclose the board’s eventual actions, but shared that he was not required to withdraw or leave school.³¹² Zuckerberg did not face criminal prosecution for any of these actions.

Similarly, the young executives and inner circle of FTX (a cryptocurrency exchange),³¹³ who all graduated from elite universities, benefited from an aura of creativity that enabled them to defraud investors and customers of billions of dollars for years before they were finally prosecuted.³¹⁴ The image of the founder as an “eccentric genius” and “wonder child” distracted from the misuse of funds and financial crimes.³¹⁵ Biases again played a significant role in construing these actions that broke norms and rules as creative and innovative. As O’Mara observed, the “whiz kids” are “almost exclusively, male, [W]hite and young.”³¹⁶ They benefit from their class and prestige from elite universities like Harvard, Stanford, and MIT. Society is “still fixated on the idea of the eccentric genius accomplishing extraordinary things.”³¹⁷

Notably, tech experts have not responded to these high-profile incidents by calling for stricter criminal laws or increased criminal prosecutions. Instead, some even caution against new regulations, arguing they are not “only costly and potentially harmful for innovation, but also limited in its effectiveness.”³¹⁸ Proposed solutions instead focus on changing business practices, such as insisting on a work culture of experimentation, failure, and honesty;³¹⁹ requiring more information to confirm claims and research that are being presented;³²⁰ and either relying on technology or creating new ones to allow for transparency and confirmation of data.³²¹ Similarly, leaders in the cryptocurrency industry, despite several prominent criminal prosecutions,³²² are also not advocating for more criminal laws or prosecutions. Instead, they actively seek clarification on what is legal, arguing that it is essential for continued innovation in the crypto space.³²³ These requests may, themselves, signal the inadequacies in our current laws and a need for new legal frameworks to accommodate this new technology.³²⁴

In the gray space in which creativity and criminality coexist, and actions and behaviors are by definition deviant and unexpected, biases can determine whether the coin lands on the side of creativity or crime. Recognizing that bias profoundly affects the labeling of creativity or crime, and working to eliminate these biases, is an important and necessary step to prevent the criminalization of creativity.

New Laws and Policies

In addition to addressing biases, creating specific laws and policies that prevent the criminalization of creativity, and that reduce reliance on criminal prosecutions overall, could foster and protect the creativity and healthy development of young people, ultimately benefiting the criminal and juvenile systems, as well as society as a whole.

First, new laws can directly limit how creative expressions are used in criminal prosecutions. For instance, California’s Decriminalizing Artistic Expression Act from 2022 limits when “creative expressions,” including “music, dance, performance art, visual art, poetry, literature, [and] film,” may be introduced as evidence in criminal trials.³²⁵ In assessing the probative value of the evidence against the “substantial danger of undue prejudice,” there are explicit protections for creativity and prohibitions against their misuse.³²⁶ In August 2023, Louisiana became the second state to pass similar legislation to prohibit or limit the use of creative works, such as rap lyrics, in criminal prosecutions.³²⁷ Congress is also considering such restrictions through the Restoring Artistic Protection Act,³²⁸ and there are similar measures in other states, such as New York and Missouri.³²⁹ These limitations are necessary especially since the First Amendment has offered insufficient protection to stem the use of rap lyrics in criminal trials.³³⁰

In addition, new policies should be implemented to increase opportunities for young people to engage in positive risk-taking through creative outlets. Risk-taking is a natural part of youth development, and channeling it into constructive outlets minimizes the likelihood of engaging in negative risks.³³¹ Rather than resorting immediately to criminal prosecutions to address unexpected or nonconforming behavior in young people, creative alternatives should be explored. For instance, some cities have countered the harms associated with graffiti by establishing designated public spaces or “permission walls,”³³² offering a constructive outlet for creative expression. Expanding such initiatives can provide more avenues for young people to engage in healthy risk-taking through creative activities.

This approach could also extend to fields like technology and start-ups, in which creativity and innovation are at the forefront. This is especially critical for Black founders who “face far more difficulty raising money than their [W]hite competitors.”³³³ Programs and initiatives that provide training, networking opportunities, and access to capital are some ways to ensure that young people from all backgrounds are engaging in positive risk-taking, thereby reducing negative risk-taking endeavors.

Overall, promoting inclusive creative opportunities and preventing the criminalization of creativity will require original, bold, and unconventional thinking. Importantly, young people should actively participate in shaping and implementing these policies and initiatives. Their innate creativity and insight into what motivates them and their peers can help develop effective and impactful laws and policies.

B. Punishing Crime

Next, applying a developmental framework that prioritizes and protects young people’s creativity should also reshape punishment. While the developmental framework has already led to significant progress in limiting how young people are punished,³³⁴ further measures are necessary to safeguard and cultivate their creativity, even after a criminal conviction or juvenile delinquency adjudication. These changes also pave the way for broader systemic reforms for all people.

Our current system of punishment, especially incarceration and confinement, crushes and stifles creativity. In general, there is “widespread acceptance of boredom as punishment,”³³⁵ and the American prison system is particularly adept at implementing a “long-term boredom.”³³⁶ This boredom may be overshadowed by other harsh realities of prison life, such as violence or abuse, that impose long-term trauma.³³⁷ It may also be obscured by prominent creative works produced during incarceration,³³⁸ or feel-good accounts of arts programming or creative breakthroughs in prison.³³⁹ However, these stories of creativity and innovation are the exception, not the norm.³⁴⁰ Rather, “the central realities of incarceration for inmates” include its “crushing routine and relentless boredom.”³⁴¹

Nearly every aspect of American prisons—from their architecture to their lack of programming—imposes a controlled and dull existence for those imprisoned. “By their very design and aesthetics, the physical buildings and layout of American prisons cultivate feelings of institutionalization, immobilization, and lack of control . . . .”³⁴² Additionally, “[a]s prison life has become more restricted and punitive, it has simultaneously become more monotonous.”³⁴³ Although some jurisdictions have expanded postsecondary-educational opportunities, there has been an overall decline in “opportunities for paid work, as well as rehabilitative, vocational, and postsecondary programming.”³⁴⁴ Opportunities for creativity and innovation are severely lacking,³⁴⁵ and the prison experience is one of “too much drudgery.”³⁴⁶

The harshest and most severe forms of punishment are worse. Maximum-security prisons are “usually monotonous and boring.”³⁴⁷ To the extent that the dullness is interrupted, it is due to “outbursts of violence.”³⁴⁸ The “threat of violence is real enough in maximum security prisons to produce a constant undercurrent of tension, fear, and wariness among inmates and staff.”³⁴⁹ Solitary confinement, one of the harshest punishments, also incorporates extreme boredom. As Saida Grundy observed, solitary confinement is “specifically designed to numb all of one’s senses and maximize suffering.”³⁵⁰ In essence, “boredom is an essential quality of one of the most severe forms of punishment.”³⁵¹ It is unsurprising then that solitary confinement causes such severe developmental harm.³⁵² The acknowledgment of this harm has substantially decreased its use against children³⁵³ and should be expanded to others as well, especially emerging adults.

Creative outlets in confinement are essential, particularly for young people who require creative outlets for healthy development. Creativity can be transformative, even lifesaving, for those who are incarcerated. For instance, Reginald Dwayne Betts, a lawyer, scholar, poet, and MacArthur Fellow, was sentenced to a nine-year prison term at the age of sixteen for much of his adolescence and early adulthood.³⁵⁴ Betts recounted that during his time in prison and solitary confinement,³⁵⁵ “reading is where [he] found freedom, and writing is where [he] was able to express [his] individual thought, imagination and creativity.”³⁵⁶ After serving his sentence and then attending law school, Betts helped create the Million Book Project to send “a curated 500-book collection to 1,000 medium and maximum security prisons” and “at least one juvenile detention center” in every state.³⁵⁷ This mission continues through the nonprofit organization Freedom Reads, which Betts cofounded and serves as executive director.³⁵⁸

Studies support Betts’s experience. Art programs in prisons improve individuals’ well-being and reduce recidivism when people leave prison.³⁵⁹ Participants in art therapy “improved socialization skills, had improved attitudes, and were less depressed.”³⁶⁰ Additionally, these programs contributed to a safer prison environment by reducing “prison incidents,” “rules violations,” and violence.³⁶¹

These opportunities for creativity should not detract from efforts to prevent sending people to prison in the first place. Prisons damage the well-being of those who are incarcerated, and the experience of incarceration in the United States is criminogenic.³⁶² The damage to the developmental health of young people is even more serious. Even short periods of incarceration cause long-term damage to adolescents’ development.³⁶³ Rather, creative expressions and programs can assist with efforts to end mass incarceration and the incarceration of young people. For example, the sale of Roy Lichtenstein Masterpiece led to an endowment of $100 million for Ford Foundation’s Art for Justice Fund, which has the mission to provide art-based grants to reduce mass incarceration.³⁶⁴ The organization has funded programs, such as the one between Los Angeles County and its Arts Commissions to create the Arts and Youth Development Project.³⁶⁵ The project sponsors art programs for youth who are at risk of entering the juvenile system, as well as programs for youth who are already incarcerated or in a prediversion program.³⁶⁶

Additionally, protecting young people’s creativity should be prioritized in other forms of carceral control, such as probation, parole, and supervised release. There are approximately 3.7 million people under some form of community supervision.³⁶⁷ Probation is the most common juvenile delinquency disposition.³⁶⁸ According to the latest data, 188,200 juvenile delinquency cases had a disposition of probation in 2022.³⁶⁹ Community supervision imposes numerous and wide-reaching restrictions and controls over individuals’ lives.³⁷⁰ These restrictions also limit one’s creativity, as they can dictate who an individual associates with or what type of activity the individual engages in. For example, in one recent federal criminal case, a defendant was arrested for violating the terms of his supervised release for working with people with prior felony convictions to produce and perform rap music that allegedly “promot[ed] and glorifi[ed] future gun violence/murder.”³⁷¹ While the court modified the terms to be less restrictive than the prosecutors’ request, it still ordered the defendant to submit his rap lyrics to the government for pre-approval before promoting or producing his songs to ensure that they are not “inconsistent with the goals of rehabilitation.”³⁷² These types of conditions directly target and limit one’s creativity and may actually hinder rehabilitation.

Alternatively, as an example of a probation condition that recognizes the importance of youth creativity, one can turn to the program by Creative Justice. This organization, while advocating for the abolition of prisons,³⁷³ works within the juvenile system to provide “arts-based healing engaged spaces” for young people such that their “time and creative work can be used in mitigating any active court cases or other systemic burdens they may be facing.”³⁷⁴ In collaboration with mentor artists, these youth “explore the root causes of incarceration, weaving together art, creativity, and restorative justice” for personal and societal change.³⁷⁵ Programs like this demonstrate the need for innovative solutions to foster young people’s creativity even while under carceral control. The “window of opportunity” during this life stage can lead to long-lasting changes that contribute to the well-being of individuals and their communities.³⁷⁶ Efforts with a focus on creativity should lead to broader systemic reforms across the entire criminal system.

IV. Creativity and Crime in Schools

Another significant space in which creativity and crime collide for young people is the education system. Applying a developmental framework that prioritizes creativity should expand opportunities in schools for young people to develop and express their creativity. Yet schools are moving in the opposite direction. Alongside a pervasive educational culture marked by widespread boredom and a broader creativity crisis among our youth,³⁷⁷ schools are increasingly adopting criminal processes and entrenching the school-to-prison pipeline, particularly for marginalized youth from poor communities.

This Part first describes this problematic culture of criminalization that has taken hold in the educational system and then proposes ways that schools can instead cultivate a culture of creativity. Expanding students’ creativity not only increases engagement in their education and enhances young people’s well-being, but it also reduces the likelihood of negative risk-taking³⁷⁸ and becoming entangled in the juvenile or criminal systems. These normative proposals also continue to highlight the close connections between crime and creativity.

A. Culture of Criminalization

A pervasive culture of criminalization characterizes our current educational system, exemplified by the school-to-prison pipeline. This pipeline refers to “policies and practices that systemically push at-risk youth out of mainstream public schools and into the juvenile or criminal justice systems.”³⁷⁹ This includes “the trend of referring students directly to law enforcement for committing offenses at school or creating conditions that increase the probability of students eventually becoming incarcerated, such as suspending or expelling them.”³⁸⁰

The relationship between schools and the juvenile and criminal systems has “tightened significantly” over the recent decades.³⁸¹ There is more reliance on criminal tools and processes, such as the increased usage of surveillance, school resource officers (“SROs”) or police officers, and school disciplinary processes that heighten the risk of youth involvement in the criminal or juvenile systems.³⁸² Furthermore, the expanding creation and enforcement of “disturbing school statutes” are being used to criminalize or harshly discipline “common adolescent misbehavior, such as texting and refusing to hand over a cell phone, burping, using perfume, throwing a paper airplane, stealing a beef patty, [and] writing on desks.”³⁸³ These offenses and crimes such as “insubordination” or “willful defiance” are inherently difficult to define.³⁸⁴

Such statutes are also the common reason for punitive actions. For example, 40% of all school suspensions during the 2010 to 2011 school year in California were for “willful defiance,” which is defined in part as “any behavior that disrupts a classroom.”³⁸⁵ In New York City public schools, “insubordination” was the most cited reason for suspensions in the 2013 to 2014 school year.³⁸⁶ Again, it is these “tough-to-define”³⁸⁷ offenses that, consistent with other disorderly conduct offenses, give wide latitude to decisionmakers,³⁸⁸ like school administrators or SROs, to determine if young people’s actions are creative or criminal.

Moreover, zero-tolerance policies, which were ushered in by the national Gun-Free Schools Act of 1994,³⁸⁹ also create an “extreme category of exclusionary discipline.”³⁹⁰ Under this Act, as a condition for receiving federal funds, states were required to pass laws that mandated schools to expel students for at least one year if they brought guns to school.³⁹¹ The enforcement of this Act, however, was inconsistent, with students being expelled or sent to authorities for bringing “butter knives (for sandwiches), plastic toy guns, or Swiss Army knives, and for swearing or engaging in any behavior considered disruptive by school officials.”³⁹² This federal policy then spurred local and state zero-tolerance policies that mandated expulsion or discipline for other actions, such as “possession of drugs, alcohol, or tobacco; fighting; dress-code violations; truancy; and tardiness.”³⁹³

It is sadly ironic that, as Bettina L. Love opined, the very creativity that young Black students expressed through hip-hop was used against them to create stereotypes that helped justify and spur these punitive school reforms in the 1980s and 1990s that then continue to restrict their creativity and enable its continued criminalization.³⁹⁴ The Black children who helped make hip-hop a celebrated worldwide “cultural phenomenon” were contemporaneously “punished . . . for the very creativity they expressed in hip-hop.”³⁹⁵ They were called “super predators,” “crack babies,” and “thugs,” and their “youth culture” was upended “to reinforce these labels, not just outside of school but, more perniciously, inside school.”³⁹⁶ The very stereotypes that supported police brutality in their communities also justified such practices in their schools.³⁹⁷ They “were no longer children but pre-criminals. Schools were no longer schools but pipelines to prison.”³⁹⁸

Together, these laws, policies, and practices have made it easier and more common for students to be directly referred to the juvenile or criminal systems. For example, there is evidence “that a school’s SRO/police presence corresponds with an increased likelihood that the school will report student incidents to law enforcement agencies.”³⁹⁹ One study showed that schools with police officers or SROs have had “five times as many arrests for ‘disorderly conduct’ as schools without them.”⁴⁰⁰ Even if they are not directly referred, internal school disciplinary proceedings, such as suspensions or expulsions, increase the risk that youth will eventually become part of the juvenile or criminal system.⁴⁰¹ Merely attending a middle school with more suspensions—even if the students themselves are not suspended—increases the likelihood that they will be involved in adult crime, arrested, and incarcerated, and less likely that they will finish high school and attend college.⁴⁰² Moreover, some contend that these processes themselves “contribute to a quasi-prison-like environment” directly within schools.⁴⁰³

The school-to-prison pipeline also disproportionately impacts youth of color. There is “[a]bundant empirical evidence” that shows that youth of color are “disproportionately represented throughout every stage” of this pipeline.⁴⁰⁴ This includes more frequent and more severe disciplinary actions within schools and high rates of arrest and convictions in the juvenile and criminal systems.⁴⁰⁵ Schools with a larger proportion of marginalized students also have higher rates of surveillance, even after controlling for other factors such as “student poverty, . . . [performance] . . . on academic assessments, school crime, school disorder and disciplinary problems, and school administrators’ perceptions of the level of criminal activity in the surrounding neighborhoods.”⁴⁰⁶ Racial disparities are also present in suspending and expelling students, even after “controlling for factors such as student misbehavior, poverty, academic achievement, neighborhood context, and district and school characteristics.”⁴⁰⁷ Other empirical research has shown more nuance, with studies showing no racial disparity against Black students “for more serious and objectively defined offenses, especially when discipline is mandated for engaging in such offenses,” but racial disparities manifesting when the offense is less serious or when “discipline is discretionary.”⁴⁰⁸ This study is consistent with scholars’ observations about the heightened discretion inherent in disorderly conduct offenses that enhances the effects of biases.⁴⁰⁹

Significant changes are required as education remains one of the most effective ways for youth to avoid engaging in adult crime or becoming enmeshed in the juvenile or criminal systems. Attending a “higher-quality school” and completing high school lessen the risk of future criminal activity.⁴¹⁰ For Black youth, those who do not graduate high school have an approximately “70 percent cumulative risk of imprisonment.”⁴¹¹ Merely increasing the minimum dropout age, such as raising the age from sixteen to eighteen, has “a significant and negative effect on juvenile crime.”⁴¹² It particularly reduces property and violent crimes for those in high school.⁴¹³ Studies show that those in prison also generally have less education.⁴¹⁴ Meanwhile, youths who experience juvenile detention or incarceration are less likely to attend high school, and they experience higher risk of being imprisoned as an adult,⁴¹⁵ again highlighting another close connection between schools and crime.

Therefore, applying a developmental framework that prioritizes young people’s creativity involves not only dismantling the school-to-prison pipeline, but also encouraging their engagement in schools and supporting their eventual graduation. One effective approach is to create more opportunities for creative expression in their education.

B. Creating a Culture of Creativity

Schools not only influence young people’s paths toward or away from crime, but schools also play a crucial role in guiding their creativity. Education is, in fact, “essential to creativity.”⁴¹⁶ Since creativity “requires a high degree of domain knowledge,” schools are vital in facilitating this attainment.⁴¹⁷ Transforming schools into more creative spaces can motivate students to care about their education, remain in school, and also reduce the likelihood that they will enter the criminal or juvenile systems.

Many scholars, however, hold the current educational system largely responsible for contributing to the “creativity crisis” among youth in America.⁴¹⁸ In both secondary and higher education, creativity is generally not prioritized and, at times, is actively undermined. Kim, who has documented the decline in creative thinking among K-12 students, points to an overemphasis on standardized testing and test-taking skills in classrooms as a major contributing factor to this decline.⁴¹⁹ She is not alone in her critique.

Regarding high schools, Steinberg observed that except for the “very best American students—the ones in [Advanced Placement] classes who are bound for the nation’s most selective colleges and universities—high school is tedious and unchallenging.”⁴²⁰ Research shows that adolescents are most bored when they are in school, and that their “moods improve dramatically around 3:00 p.m. and toward the end of the week, as the weekend approaches.”⁴²¹ According to surveys, most high schoolers shared that “they are just going through the motions at school, calibrating their level of effort to ensure that they do well enough to stay out of academic trouble,” while one-third responded “that they have little interest in school and get through the day by fooling around with their friends.”⁴²² Compared with other countries, American schools are generally “more boring.”⁴²³ In one study, more than 80% of international students who studied in American high schools found them less challenging than schools in their home countries.⁴²⁴ This issue persists in higher education. Overall, colleges and universities provide “little support for creative students.”⁴²⁵ The admissions criteria for college also do not adequately assess students’ creativity and, therefore, miss opportunities to admit and enroll “daring [and] imaginative thinkers.”⁴²⁶

Increasing creativity in schools is a challenge when the very model and structure of the American educational system were not designed with this goal in mind. Instead, this system is based on an industrial model. The “[s]ystems of mass education were designed to mold students to certain requirements.”⁴²⁷ Like “typical factories, high schools and higher education in particular are organized around the division of labor.”⁴²⁸ The typical school day is “segmented into regular chunks of time” and teachers “specialize in particular subjects.”⁴²⁹ Similarly, “[i]ndustrial processes demand compliance with specific rules and standards.”⁴³⁰ This is echoed in the “standards movement” in education, which requires “compliance in curriculum, teaching, and assessment.”⁴³¹

Moreover, in most K-12 classrooms, students are placed in small classrooms, “often are required to work quietly and individually,” and work on “problems that have already been solved” or have “one correct or expected way of completing them.”⁴³² There is “continuous monitoring and assessment of students and teachers,” which reinforces conformity and monotony.⁴³³ Although teachers may claim to value creativity and creative students, they often “dislike characteristics associated with creativity” such as nonconformity.⁴³⁴ As a result, many creative students find the standardized methods of teaching not only unhelpful, but also “distracting.”⁴³⁵ These issues are even more pronounced in schools in poor, marginalized communities. Students contend with minimal resources, violence, and chronic disengagement. Such schools not only function as pipelines to prison but also increasingly mirror prison-like environments, characterized by disorder, apathy, and lack of meaningful opportunities for growth.⁴³⁶

An increasing number of students and their families are opting to leave traditional schooling.⁴³⁷ Families from diverse backgrounds and regions of the country are turning to homeschooling, now recognized as the “fastest-growing form of education.”⁴³⁸ While motivations for homeschooling vary—ranging from educational and religious reasons, to minimizing racism⁴³⁹—there is evidence that homeschooling fosters creativity in youth, both in the United States and abroad.⁴⁴⁰ Other nontraditional schools take different approaches, such as incorporating a “democratic process” in which students decide what they want to learn, changing the educational environment into “one of adventure and discovery rather than stricture.”⁴⁴¹ Meanwhile, the “Slow Education” model emphasizes giving students the “space and the time to discover their passions and their strengths.”⁴⁴² The model was developed by Joe Harrison while working for Creative Partnerships, a government program in the United Kingdom designed to increase creativity in schools.⁴⁴³

However, access to nontraditional and alternative educational models is limited. Schools that adopt a democratic process are mostly private schools.⁴⁴⁴ Similarly, the Slow Education model requires that the “school and community devote[] time to learn who each individual student [is] and what they [are] about, and to create programs geared to specific interests, and capacities.”⁴⁴⁵ Unfortunately, many schools lack the resources and time to implement these approaches, and many families cannot afford private schools or homeschooling.

Incremental changes, however, can be introduced in both secondary and higher education. Increasing creativity in schools does not mean eliminating standards or encouraging “antisocial behavior.”⁴⁴⁶ Instead, the singular focus on conformity—or “judg[ing] students by a single standard of ability”—should be reduced.⁴⁴⁷ To do so, schools should celebrate the diversity of “individual talents” among their students.⁴⁴⁸

Also, while there is a movement toward teachers using scripted materials, they can also reduce “improvised, creative, collaborative learning.”⁴⁴⁹ As creativity expert and professor Keith Sawyer recommended, while teachers should be experts in their subject matters and can use scripted materials, they must also create space for improvisation—both among students and between the teacher and students.⁴⁵⁰

As “[t]he real driver of creativity is an appetite for discovery and a passion for the work itself,” teachers and schools should explore creative ways to motivate students to learn.⁴⁵¹ A meta-analysis of adolescent creativity found that key educational factors that best support creativity include “balancing freedom and necessary guidance; flexible, open-ended activities with clear learning expectations; openness to and encouragement of student ideas; an atmosphere of trust and respect; and varied learning resources.”⁴⁵² Implementing the “seven habits of mind”—“posing questions, play, immersion, innovation, risk taking, being imaginative, and self-determination”—also increases creativity.⁴⁵³

High schools and colleges can also foster creativity by “role model[ing] creativity.”⁴⁵⁴ The “most compelling way” to inspire creativity is to model it.⁴⁵⁵ Additionally, “teaching students to cross-fertilize their thinking across various disciplines” and to connect these ideas to personal interests are important.⁴⁵⁶ Projects and assignments that provide students time to be creative, work with others to be in “creative collaboration,” assess and reward creativity, are also effective.⁴⁵⁷

Prioritizing creativity in young people’s educational environments can inspire positive risk-taking, reduce negative risk-taking, and enhance their overall well-being. It encourages them to remain in school and graduate, thereby decreasing their risk of entering the juvenile and criminal systems. In addition to dismantling the school-to-prison pipeline and eliminating biases that mischaracterize students’ creativity as criminality, schools should make intentional efforts to prioritize and cultivate creativity among their students.

Conclusion

The significant overlap between creativity and crime presents both a challenge and an opportunity. As the two are deeply intertwined, they can easily be mischaracterized, with creative actions labeled as criminal ones or construed as evidence of one’s criminality. This issue is particularly salient for young people, whose developmental traits heighten both types of behaviors and who are at a critical stage for cultivating their creative identity.

As the developmental framework increasingly shapes laws and policies affecting adolescents and emerging adults, prioritizing creativity is imperative. This Article examined how centering creativity should change how young people are prosecuted and punished for crimes or offenses, as well as how they are educated. Addressing biases and adopting laws, policies, and practices that deter the criminalization of creativity and recognize creativity as an integral factor of young people’s development will not only advance the main goal of the developmental framework—the well-being of adolescents and emerging adults—but also lay the groundwork for broader systemic changes that benefit society as a whole.

99 S. Cal. L. Rev. 499

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Esther K. Hong*

* Associate Professor of Law, Arizona State University, Sandra Day O’Connor College of Law. For their generous insights and comments, the author thanks Chaz Arnett, Rachel Barkow, Alyse Bertenthal, Emily Buss, Sheldon Evans, Trevor Gardner, Josh Gupta-Kagan, Vivian Hamilton, Elizabeth Scott, Ronald Wright, and the participants of the ABA-AALS Criminal Justice Roundtables; the AALS Family and Juvenile Law Section Works-in-Progress Session, The Future of Family Law; Culp Colloquium at Duke University School of Law; CrimFest; the University of Ottawa Public Law Centre Criminal Law Workshop; the University of Arizona/Arizona State University Junior Faculty Workshop; and the Wake Forest University School of Law Juniors Workshop. The author also thanks Donny Stewart and Haley Potter for their excellent research assistance, and the editors of the Southern California Law Review for their excellent editorial work.

Transforming Special Education Litigation: The Milestone of Perez v. Sturgis Public Schools

April 2025April 2025Isabelle Yuan*

In March 2023, the Supreme Court issued a landmark decision in Perez v. Sturgis Public Schools, which held that individuals seeking compensatory damages under federal anti-discrimination laws, like the Americans with Disabilities Act, no longer need to satisfy the administrative exhaustion requirement in the Individuals with Disabilities Act (“IDEA”). Under IDEA, all students with disabilities are entitled to a free appropriate public education, which means that students with disabilities are entitled to individualized education services that meet their needs. In Perez, the plaintiff, Miguel Luna Perez, was a deaf student who alleged that the Sturgis Public Schools discriminated against him by not providing proper accommodations, such as a qualified sign language interpreter in his classes. The district court and the Sixth Circuit dismissed the plaintiff’s claims because of an IDEA provision that requires the plaintiff exhaust all administrative procedures before seeking relief in court. The Supreme Court reversed the Sixth Circuit decision, reasoning that the exhaustion requirement did not apply to Perez as he sought compensatory damages, which are unavailable under IDEA. This ruling means that families can now directly hold schools financially accountable for IDEA violations. This Note discusses Perez’s profound impact on the special education landscape. The greater accessibility for families to litigate will ideally lead to greater accountability and IDEA compliance as schools strategize to avoid litigation and paying costly compensatory damages. Although this decision is a victory for students with disabilities, a major downside of Perez is that paying compensatory damages increases schools’ financial strain and may hinder their abilities to address systemic issues in their special education framework. To ensure that school districts can properly address structural issues and adequately support students with disabilities post-Perez, this Note argues for clearer IDEA guidelines and robust monitoring systems. There are many uncertainties that follow in the wake of Perez, but the decision has the potential to encourage much-needed progress in special education services nationwide.

INTRODUCTION

In March 2023, the United States Supreme Court delivered a landmark decision for students with disabilities. The Court unanimously ruled in Perez v. Sturgis Public Schools that a student with a disability is not required to exhaust the administrative due process procedures under the Individuals with Disabilities Education Act (“IDEA”) before seeking monetary damages under the Americans with Disabilities Act of 1990 (“ADA”) or other federal antidiscrimination laws.¹ Under IDEA, students with disabilities are required to receive a “free and appropriate public education,” but money damages are not available as relief.²

IDEA mandates that students with disabilities receive a free appropriate public education (“FAPE”), which includes providing special education and related services from preschool through secondary school that meet state educational agency standards and conform with the student’s individualized education program (“IEP”).³ An IEP is a written statement developed by a local educational agency, like a school district. It is a collaboration between a child’s parents and school personnel to identify a student’s needs and to develop a plan to achieve educational goals.⁴ Parents are intended to play “a significant role” in the IEP process.⁵ IEPs also prescribe the types of supplementary services the student will receive, along with an explanation of whether the child is able to participate in regular classes with nondisabled children.⁶

Three main federal laws exist to protect children with disabilities: IDEA,⁷ the ADA,⁸ and section 504 of the Rehabilitation Act of 1973 (“section 504”).⁹ Both IDEA and section 504 confer a right to FAPE, though the two have distinct conceptions of the meaning.¹⁰ Though the ADA does not contain a FAPE obligation, its regulations are mandated to be consistent with all section 504 regulations, so it does not undermine section 504’s FAPE obligation.¹¹ The ADA was enacted twenty-five years after IDEA to “provide a clear and comprehensive national mandate” to address pervasive discrimination against individuals with disabilities in areas such as “employment, housing, public accommodations, [and] education . . . .”¹² The ADA mandates that employers and public entities make reasonable modifications to their policies or facilities to accommodate individuals with disabilities. Section 504 is an antidiscrimination statute that also protects individuals with disabilities from being denied benefits or excluded from participation in any program receiving federal funding, including public schools.¹³

IDEA, the ADA, and section 504 all define “disability” differently, although there are overlaps among them. In this Note, “students with disabilities” refers to students who qualify under IDEA. IDEA defines a student with a disability as a child, aged between three to twenty-one, “with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities” who thereby “needs special education and related services.”¹⁴ The ADA’s definition for “disability” is more stringent, as an individual must have “a physical or mental impairment that substantially limits one or more major life activities” and a record of the impairment.¹⁵ Section 504 incorporates part of the ADA definition, but requires that an individual with a disability have a physical or mental impairment that “results in a substantial impediment to employment” and can benefit from vocational rehabilitation services.¹⁶ The ADA and section 504 operate similarly to prohibit discrimination on the basis of disability in programs that receive federal funding.¹⁷ So, although IDEA and ADA both provide relief for individuals with disabilities, they function differently; the ADA addresses broader discrimination in major areas of public life like employment and public accommodations, while IDEA is focused only on special education services in public education.¹⁸ Importantly, the different “disability” definitions mean that a person who receives special education services under IDEA does not necessarily have a disability recognized under the ADA and section 504.¹⁹

In Perez v. Sturgis Public Schools, Miguel Luna Perez, a deaf student in Michigan, faced significant challenges in his education. Perez attended schools in the Sturgis Public School District (“SPSD”) and was entitled to a sign language interpreter during class.²⁰ Although the school provided him with a classroom aide, Perez’s assigned aide was unqualified to teach sign language.²¹ As Perez neared high school graduation, the school informed his parents that he did not fulfill his diploma requirements and would not graduate, which prompted Perez to file a complaint with the Michigan Department of Education.²² Perez alleged that SPSD denied him an adequate education in violation of IDEA, the ADA, section 504, and two other disability laws.²³ SPSD and Perez agreed to a settlement that included post-secondary compensatory education and sign language instruction for Perez.²⁴ Perez subsequently sued SPSD in federal district court.²⁵ The Western District of Michigan dismissed Perez’s ADA claim, citing his failure to exhaust administrative proceedings because he had settled his IDEA claim—a decision the Sixth Circuit affirmed.²⁶

The central question before the Supreme Court in this case was whether IDEA and the ADA required a student to exhaust administrative proceedings against the school district, even when such proceedings would not provide the relief sought.²⁷ The Court’s unanimous opinion held that an ADA lawsuit seeking compensatory damages could proceed without exhausting the administrative processes of IDEA because the remedy sought under the ADA was not one provided by IDEA.²⁸ Perez is important because it changes the landscape of special education law, opening the door for families to seek compensatory damages without undergoing an extensive exhaustion process. Rather than being forced to participate in due process hearings, families can readily hold school districts financially accountable for IDEA noncompliance.

This ruling will have significant implications for the rights of children with disabilities and how school districts handle future litigation. One implication is that the process for seeking compensatory damages from school districts became more streamlined, since families may bypass IDEA’s exhaustion requirement. Previously, the burden of exhausting IDEA’s administrative procedures was a deterrent for families seeking remedies under federal statutes like the ADA and section 504. Another implication is that the rights of students with disabilities are enhanced, as families have more leverage when negotiating settlements with school districts. Families may feel more empowered by the possibility of receiving monetary damages that will offset their litigation costs and propel school districts to address their inadequate special education programs. The availability of compensatory damages will likely lead to an increase in the number of cases brought against school districts.

However, there may be unforeseen negative consequences of increased family advocacy: prolonged legal battles and compensatory damage payouts may strain school districts’ resources and divert attention away from students. School districts that are already struggling financially might experience a further breakdown in their special education services as reduced funding and resources prevent them from addressing the educational needs of students. It may be that some families will receive rightful compensation while other students with disabilities struggle against systemic issues in the administration of special education programs exacerbated by the effects of the Perez decision.

This Note proposes that the Supreme Court’s decision in Perez will have far-reaching consequences for the families of students with disabilities and school districts’ approaches to litigation, as well as policy implications for educational agencies in the implementation of special education services under IDEA. Part I of this Note offers an overview of IDEA’s history, the statute’s requirements and procedural framework, and an explanation of IDEA’s exhaustion requirement that is central to the discussion in Perez. Also, Part I offers a brief explanation of the ADA and section 504 in relation to IDEA and the standards for receiving compensatory damages through these laws. Part II discusses a few important Supreme Court cases that litigated standards and definitions under IDEA. To fully understand the importance of the Perez decision, it is important to contextualize Perez alongside other IDEA cases heard by the Supreme Court. Part III explores the background and discussion of Perez and its implications for future special education litigation. Finally, Part IV explores potential consequences of the Perez decision and offers policy recommendations on how educational agencies can better meet IDEA requirements and address the needs of students with disabilities.

I. FOUNDATIONS OF SPECIAL EDUCATION LAW

This Part provides background information about the creation of IDEA and a detailed explanation of the statute’s intentions, procedural framework, and enforcement through state educational agencies. This Part also briefly explains IDEA’s exhaustion requirement, which is central to Perez. The final Section of this Part describes the process and standards for a party bringing a discrimination claim for money damages under the ADA and section 504, since compensatory damages are unavailable under IDEA.

A. History of IDEA

Beginning with the Civil Rights Movement, advocates for students with disabilities argued that the exclusion of students with disabilities from schools was a denial of equal educational opportunities analogous to racial segregation in schools.²⁹ Advocacy organizations and parents sued states, alleging that inappropriate educational services violated the Constitution.³⁰ Congress responded by enacting the Elementary and Secondary Education Act of 1965, in which the federal government provided funding to educate students below the poverty line and improve the education of students with disabilities in public schools.³¹ In 1970, the Education of the Handicapped Act (“EHA”) was passed and provided grant funding for higher education institutions to develop special education teacher training programs.³² Two 1972 cases, Pennsylvania Ass’n for Retarded Children (PARC) v. Pennsylvania and Mills v. District of Columbia, are considered to be the most notable cases in special education and foundational to the ideas in IDEA.³³ In PARC, the district court approved an amended consent agreement that obligated the state of Pennsylvania to place every child with a disability “in a free, public program of education and training appropriate to the child’s capacity.”³⁴ In Mills, the district court held that the District of Columbia public school system must utilize their financial resources so “that no child is entirely excluded from a publicly supported education consistent with [their] needs and ability to benefit therefrom,” especially for students with disabilities.³⁵ Though PARC and Mills are most frequently referenced, there were more than thirty federal cases during this period in which courts upheld the same principles outlined in PARC and Mills.³⁶

In the early 1970s, only 3.9 million of the 8 million children with documented disabilities in the United States had access to an adequate education.³⁷ In 1975, President Gerald Ford signed into law an amendment to the EHA, the Education for All Handicapped Children Act (“EAHCA”).³⁸ The EAHCA’s purpose was to ensure that students with disabilities received a FAPE, to protect the rights of students and parents, and to assist states and school districts in providing services.³⁹ The EAHCA’s enactment was significant because it marked the first time that a FAPE was memorialized in the law.⁴⁰

In 1990, amendments were passed to the EAHCA, and the law was renamed as the Individuals with Disabilities Education Act, as it is known today.⁴¹ IDEA’s purpose is to ensure that every child with a disability received a FAPE.⁴² Importantly, IDEA provides funding to states and school districts that comply with its mandates.⁴³ The combination of IDEA’s function and purpose make it both an educational grant program and a civil rights statute, rendering it a unique piece of legislation. In 1997, amendments restructured IDEA into four parts: (1) general provisions; (2) assistance for all children with disabilities; (3) infants and toddlers with disabilities; and (4) national activities to improve the education of students with disabilities.⁴⁴

B. Inside IDEA

1. IDEA Requirements and Procedural Framework

IDEA contains an administrative framework that was intended to ensure that parents of students with disabilities have enforceable opportunities to participate in all aspects of their children’s education.⁴⁵ The Supreme Court has made it clear that IDEA guarantees a substantively adequate program to all eligible students with disabilities, which is satisfied when a child’s IEP sets out an educational program that reasonably allows the child to receive educational benefits and advance from grade to grade.⁴⁶ IDEA is centered around the provision of a FAPE, which must be made in conformity with the IEP.⁴⁷ IDEA does this by guaranteeing a FAPE in the least restrictive environment (“LRE”) for all students with disabilities and through the creation and implementation of IEPs.⁴⁸ A FAPE in conformity with an IEP must be specially designed to meet the unique needs of a child with a disability and include any related services that would benefit the child.⁴⁹ All states covered by IDEA must provide a child with a disability with special education and related services as prescribed by his IEP.⁵⁰ IDEA defines “special education” as specially designed instruction to meet the unique needs of a child with a disability, and “related services” as the support services required to assist a child to benefit from that instruction.⁵¹ These services can include speech-language pathology, interpreters, occupational therapy, and counseling services.⁵²

A FAPE must “have been provided at public expense, under public supervision and direction, and without charge” at an appropriate level of education that meets state standards.⁵³ The LRE means that, to the “maximum extent appropriate,” children with disabilities are to be educated with children who are not disabled in a regular classroom setting, and that removal of children with disabilities from the regular classroom environment occurs only in cases of severe disability or when supplementary services “cannot be achieved satisfactorily.”⁵⁴

IDEA requires school districts to develop an IEP for each child with a disability.⁵⁵ Parental concerns regarding their child’s education must be considered by the team.⁵⁶ States are required to oversee this process and ensure that parents of a child with a disability are involved in the IEP discussion and any decisions about the educational placement of their child.⁵⁷ A student’s IEP must state the special education and related services that will be provided so that the child may advance toward achieving the annual goals set in their IEP.⁵⁸ An IEP must also state the child’s current levels of academic achievement and functional performance, while explaining how the child’s progress toward achieving their annual goals will be measured.⁵⁹ Based on these goals, an IEP will prescribe the special education and related services that will be provided.⁶⁰

IDEA has a comprehensive enforcement scheme that requires states to establish and maintain procedural safeguards to ensure that students with disabilities are receiving their basic right to education—a FAPE.⁶¹ State and local compliance with IDEA is monitored by federal review.⁶² Procedural safeguards are in place to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”⁶³ For example, states are mandated to provide an opportunity for parents to examine all relevant school records.⁶⁴ Whenever parents have complaints about the adequacy of their child’s education, like in the development of their IEP, the involved state must provide an opportunity for the party to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”⁶⁵

Once a party presents a complaint, a review process begins, in which the parents of the child with a disability discuss their complaint with the local educational agency in a preliminary meeting and the parties work to reach a resolution.⁶⁶ If the agency fails to resolve the complaint to the parent’s satisfaction within thirty days, the party may request an impartial due process hearing, which can be conducted by either the local educational agency or the state educational agency.⁶⁷ A due process hearing is overseen by an impartial hearing officer who considers sworn testimony and evidence to make a decision.⁶⁸ The hearing officer’s decision must be made on substantive grounds based on a determination of whether the child received a FAPE.⁶⁹ For a hearing officer to be “impartial,” they must not be an employee of the state educational agency or the child’s school district.⁷⁰ The officer may find a violation of a FAPE only if the procedural inadequacies “impeded the child’s right to a free appropriate public education,” “significantly impeded the parents’ opportunity to participate in the decisionmaking process,” or deprived the child of educational benefits.⁷¹ Notably, decisions made in due process hearings are binding on both parties, though parties may appeal a decision of the local educational agency to the state educational agency.⁷² Once the state educational agency reaches a decision, the aggrieved party may bring an action in state or federal district court.⁷³ The court will then review the administrative record, with supplementary evidence submitted at the request of a party, before granting “such relief as the court determines is appropriate” to the prevailing party.⁷⁴

IDEA does not grant compensatory damages, but it does provide for discretionary attorneys’ fees.⁷⁵ Most IDEA remedies have been equitable remedies, such as tuition reimbursement or injunctive relief.⁷⁶ Courts have also been given broad discretion in providing equitable relief that it finds appropriate and consistent with the purposes of IDEA, ADA, and section 504.⁷⁷ A court or hearing officer may require an educational agency to reimburse the parents of a child with a disability for the cost of private school enrollment if the school district cannot adequately provide a FAPE.⁷⁸

Once a state accepts IDEA’s financial assistance, an eligible child under the statute has a substantive right to a FAPE.⁷⁹ IDEA has six categories of mandates that states must meet to receive funding: (1) educational agencies must provide services to all qualified students with disabilities, regardless of the severity of their disabilities; (2) educational agencies must evaluate each student with a disability that requests a FAPE; (3) all students with disabilities aged between three and twenty-one who need special education and related services must receive a FAPE; (4) students with disabilities must be educated in the general classroom or the LRE as much as possible; (5) several procedural safeguards must be followed to guarantee a FAPE; and (6) parents must be involved at every stage of the process.⁸⁰

2. State Responsibilities Under IDEA

In the United States, Congress does not have constitutional authority over education, so it exerts pressure on states using its spending powers,⁸¹ particularly by offering federal funding to state and local agencies that meet IDEA conditions.⁸² This funding allows the federal government to oversee state educational authorities, such as state departments of education. State educational authorities then oversee local educational authorities, which are responsible for the implementation of IDEA mandates in schools.⁸³ But IDEA serves only as a floor for student rights, and many states have established their own statutes to further expand upon federal mandates in the special education context. These state laws play a critical role in shaping the law for students with disabilities, so the landscape of disability-rights law can vary significantly from one jurisdiction to another. For example, what a student must do to exhaust IDEA administrative requirements before bringing a lawsuit depends on each state’s rules. IDEA allows states to choose between a one- or two-tiered system for administrative review. In a one-tiered system, a state educational agency decides a student’s case.⁸⁴ In a two-tiered system, a local educational agency decides the case before a party can appeal for an impartial hearing conducted by the state educational agency; all of which must happen before a civil action may be brought in a state or federal district court.⁸⁵

Under IDEA, state and local departments of education receive federal financial assistance if they provide a FAPE for children with disabilities.⁸⁶ A state may provide educational benefits that exceed those required by IDEA, with the state standards being equally enforceable through IDEA.⁸⁷ A state must certify to the Secretary of Education that it has policies and procedures that will meet IDEA’s conditions, especially IDEA’s principal obligation to provide a FAPE to all eligible students with disabilities.⁸⁸ A local educational agency or school district is eligible to receive a share of the state’s federal funding if it has policies and programs that are consistent with the state’s policies.⁸⁹ Thus, a school district’s obligations under IDEA are dependent on the state’s formal procedures and obligations, which must align with IDEA.

3. Section 1415(l): IDEA Exhaustion Requirement

In § 1415(l) of IDEA (“section 1415(l)”), the statute requires that parties first exhaust administrative remedies before filing a complaint in state or federal court regarding the denial of a FAPE.⁹⁰ As the Supreme Court explained in Weinberger v. Salfi,

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.⁹¹

The exhaustion doctrine is also premised on the idea “that [educational] agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer.”⁹² Although courts have discretion in their decision to rule on exceptions to the exhaustion requirement, the “[a]pplication of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.”⁹³

In analyzing whether an exception to the rule should be granted, courts previously considered whether the purposes of exhaustion would be served by requiring plaintiffs to exhaust administrative remedies.⁹⁴ Congress’s aim was to allow educational agencies and parents to work together in developing a child’s IEP.⁹⁵ Requiring the exhaustion of administrative processes allows for an exploration of the educational issues at hand, a complete consideration of the factual record, and the opportunity for educational agencies to correct the problems in their special education programs.⁹⁶

There have been exceptions to the exhaustion requirement in certain situations, though the accepted exceptions differ across circuits.⁹⁷ Before the Perez decision, courts recognized that there were instances in which the exhaustion requirement did not further the goals of IDEA and excused exhaustion, but only “in cases of futility and inadequacy.”⁹⁸

C. The ADA and Section 504 of the Rehabilitation Act

The ADA and section 504 of the Rehabilitation Act of 1973 are federal statutes focused on preventing discrimination against individuals with disabilities.⁹⁹ Section 504 applies to all organizations that receive federal funding, which includes public schools.¹⁰⁰ Prior to section 504, neither federal, state, nor local law protected people with disabilities from discrimination in schools.¹⁰¹ The ADA extends to secular private schools that do not receive federal funding.¹⁰² The ADA was enacted twenty-five years after IDEA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”¹⁰³ The ADA covers a broader range of areas than IDEA since it focuses on all types of discrimination individuals face in areas such as employment, housing, and health services, in addition to education.¹⁰⁴ Title II of the ADA forbids any public entity, including schools, from discriminating based on disability,¹⁰⁵ and section 504 applies the same prohibition to any federally funded program.¹⁰⁶ The Supreme Court has interpreted section 504 as “demanding certain ‘reasonable’ modifications to existing practices in order to ‘accommodate’ persons with disabilities.”¹⁰⁷

Unlike IDEA, both the ADA and section 504 authorize individuals to seek redress for violations of their rights by bringing suits for money damages.¹⁰⁸ The available remedies under section 203 of the ADA are the same remedies available under section 504 of the Rehabilitation Act, which are also the same remedies available under Title VI of the Civil Rights Act of 1964.¹⁰⁹ Based on that statutory language, the Supreme Court has found that “the remedies for violations of § 202 of the ADA and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.”¹¹⁰

Although the ADA is intended to protect individuals with disabilities, many people have been refused coverage.¹¹¹ Many courts have ruled that plaintiffs were not covered under the ADA’s definition of “disability,” as they did not fulfill any of the ADA’s three requirements of having “a physical or mental impairment that substantially limits one or more major life activities,” having “a record of such an impairment,” or “being regarded as having such an impairment.”¹¹² The narrow interpretation of the definition has shrunk the number of people in this protected class.¹¹³

The standard for obtaining compensatory damages under the ADA or section 504 is substantial. Different circuits have adopted similar requirements to establish a discrimination case under either the ADA or section 504.¹¹⁴ To establish a disability discrimination claim under the ADA or section 504, a plaintiff must demonstrate that a student is a “qualified individual with a disability”; “was excluded from participation in,” or otherwise discriminated against by “a public entity’s services, programs or activities”; and that exclusion or discrimination was the result of the student’s disability.¹¹⁵ Claims for compensatory damages under the ADA require a finding of intentional discrimination or an intentional denial of benefits, such as deliberate indifference from a school district.¹¹⁶ For example, in the Ninth Circuit, to prevail on a section 504 claim, a plaintiff must establish that (1) they have a disability; (2) they were otherwise qualified to receive a benefit; (3) they were denied the benefit solely because of their disability; and (4) the program receives federal financial assistance.¹¹⁷ To receive compensatory damages, a plaintiff must additionally prove intentional discrimination, such as showing deliberate indifference.¹¹⁸

II. JUDICIAL MILESTONES IN SPECIAL EDUCATION

This Part gives a brief overview of a few important IDEA cases in which the Supreme Court has decided individual disputes between children and their schools. It also aims to contextualize the Supreme Court’s decision in Perez by highlighting the Court’s role in clarifying IDEA provisions and its consistent deference to parents advocating for their children’s educational rights. Finally, this Part explains Fry v. Napoleon Community Schools, which is the last IDEA case the Supreme Court heard before Perez and addresses related questions about IDEA’s exhaustion requirement.

In Board of Education v. Rowley, the Supreme Court interpreted the term “appropriate” in IDEA’s statutory construct pertaining to FAPE.¹¹⁹ The Court rejected lower court decisions that required educational achievement to a child’s “full potential,” instead concluding that one of the main functions of IDEA was to create “access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with disabilities.¹²⁰ The Court interpreted “appropriate” to establish a “basic floor of opportunity” that required school districts to provide disabled children with an “educational benefit.”¹²¹ This case has been extremely important in clarifying the level of service school districts are required to provide to students.

Amy Rowley, a deaf student, attended public school and received services under the then EAHCA.¹²² When Rowley’s parents requested that the school provide her with a sign language interpreter, school officials refused, maintaining that the services she had already received were sufficient for her needs.¹²³ Rowley received speech and language therapy and had an audio amplification system, which the school argued was sufficient due to Rowley’s passing grades.¹²⁴ Rowley’s parents filed an administrative complaint based on the school’s refusal to provide her with a sign language interpreter, which resulted in a favorable decision for the school district. The federal district court then ruled in the parents’ favor, which was affirmed by the Second Circuit.¹²⁵ The school district appealed to the Supreme Court, which discussed two central questions: “What is meant by the [EAHCA’s] requirement of a ‘free appropriate public education’? And what is the role of state and federal courts in exercising the review granted by [EAHCA]?”¹²⁶

The Court’s majority opinion looked at the Congressional intent of the EAHCA, which focused on remedying the exclusion of children with disabilities from normal school environments. Justice Rehnquist wrote that “the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”¹²⁷ The Court explained that a school’s obligation was satisfied by providing the basic floor of services rather than the maximum needed for a child to succeed, since that would go farther than what the Court believed Congress intended.¹²⁸ Notably, the Court also declared that a court had the authority to grant whatever relief it deemed appropriate under the EAHCA where a school failed to satisfy procedural obligations, but emphasized that this authority was limited to procedural compliance rather than imposing substantive educational standards.¹²⁹ The Court’s decision in Rowley had practical implications for district courts, as many were guided by the two questions the Rowley Court posited: “First, has the State complied with the procedures set forth in the [EAHCA]? And second, is the individualized educational program developed through the [EAHCA’s] procedures reasonably calculated to enable the child to receive educational benefits?”¹³⁰ Courts have used these two questions to determine whether school districts have done enough for students, and maintain that they may not substitute any preferred policies over the school’s discretion.¹³¹ The Rowley Court also recognized that states have the primary responsibility for developing and executing educational programs and determining educational policies since “courts lack the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy.’ ”¹³²

In Endrew F. v. Douglas County School District RE-1, the Supreme Court clarified its position on IDEA’s FAPE provision, finding that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹³³ A child with disabilities should still have the opportunity to be educated in a regular classroom that will “ ‘enable the child to achieve passing marks and advance from grade to grade.’ ”¹³⁴ In Endrew, the parents of a fifth-grade student with autism sought reimbursement of tuition costs for placement in a private school.¹³⁵ His parents were dissatisfied with his progress in public school because his IEP goals carried over year-to-year and he failed to make progress in his learning.¹³⁶ Endrew’s parents filed a complaint with the Colorado Department of Education seeking reimbursement, which required them to demonstrate that the school district had not provided Endrew with a FAPE.¹³⁷ The district court felt that modifications to Endrew’s IEP each year were “sufficient to show a pattern of, at the least, minimal progress.”¹³⁸ The district court explained that minimal progress was all that the Rowley standard required of a school district.¹³⁹ The Tenth Circuit affirmed the lower court’s decision, agreeing that special education services only need to allow a student with disabilities to make “some progress.”¹⁴⁰

The Supreme Court stated that, “To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹⁴¹ The Court felt that an IEP was designed to create a plan for “pursuing academic and functional advancement,” which connected with IDEA’s purpose to help prevent the exclusion of children with disabilities in classrooms.¹⁴² Thus, a student offered an education that merely allowed some progress “can hardly be said to have been offered an education at all.”¹⁴³ The Court refrained from creating a bright-line test for determining what “appropriate progress” meant, reasoning that it should be determined depending on each unique child.¹⁴⁴

Parents of students with disabilities “often do not feel they are empowered when the [IDEA] system fails them,” as litigation is not an accessible avenue for everyone.¹⁴⁵ In Endrew, Endrew’s parents first paid for private specialized schooling before filing a complaint seeking reimbursement from the state,¹⁴⁶ requiring them to pay for expert witnesses and an attorney.¹⁴⁷ IDEA litigation is a lengthy process with a difficult standard for many families to meet. Endrew had to prove that the school district did not allow him to make appropriate progress on his IEP. To meet that standard, he needed professional experts who could attest to the progress he was capable of making and what services he needed to make that amount of progress beyond what the school district provided. Without the means for litigation costs and private education, Endrew would not have been able to present evidence of his progress. His case illustrates how difficult IDEA due process procedures are for parents who lack the means, agency, or understanding to navigate the process.

In Fry v. Napoleon Community Schools, the Supreme Court clarified the procedure that applies when a plaintiff files a complaint under a statute other than IDEA, finding that IDEA’s exhaustion requirement is “not necessary when the gravamen of the plaintiff’s suit is something other than the denial of IDEA’s core guarantee” of a FAPE.¹⁴⁸ There was confusion in lower courts about how to determine whether a complaint qualified as a claim under IDEA or under the ADA, section 504, or other federal laws.¹⁴⁹ In Fry, the parents of a kindergartener with cerebral palsy sought permission to let their daughter bring her service dog to school.¹⁵⁰ The school district denied the request because she already received similar services and a service dog would be “superfluous.”¹⁵¹ The parents first filed a complaint with the U.S. Department of Education’s Office for Civil Rights, alleging ADA and section 504 violations, which resulted in a favorable decision for the parents.¹⁵² The parents then brought these actions against the school district, seeking monetary and declaratory relief due to the school’s denial of their daughter’s right to equal access.¹⁵³ The district court dismissed their action pursuant to section 1415(l) of IDEA because the parents failed to exhaust their administrative remedies under IDEA.¹⁵⁴ The Sixth Circuit affirmed the district court’s decision because, when the injuries alleged relate to the child’s education and there is a remedy available through IDEA, “waiving the exhaustion requirement would prevent state and local educational agencies from addressing problems they specialize in addressing . . . .”¹⁵⁵

The Supreme Court examined section 1415(l)’s exhaustion requirement, finding that it “hinges on whether a lawsuit seeks relief for the denial of a FAPE.”¹⁵⁶ If a lawsuit alleges a denial of a FAPE, then it cannot circumvent section 1415(l), even if the plaintiff sues under a different federal law.¹⁵⁷ However, the Court did specify that if a lawsuit is brought under a different federal law and “the remedy sought is not for the denial of a FAPE, then exhaustion of IDEA’s procedures is not required.”¹⁵⁸ This is because an administrative hearing under IDEA could not provide any relief, even if the claim originates from the mistreatment of a child with disabilities.¹⁵⁹

While Fry clarified certain aspects of the exhaustion requirement, the issue of monetary damages under IDEA remained unsettled, as circuit courts were divided on whether courts could excuse exhaustion.¹⁶⁰ Congress had crafted IDEA “exhaustion requirement to be flexible so that meritorious cases would get a judicial hearing, [but] many courts have applied the rule rigidly, barring cases even when the plaintiffs present persuasive reasons for excusing exhaustion.”¹⁶¹ Fry left an unresolved issue regarding IDEA’s exhaustion requirement, meaning that the plaintiffs continued to be barred when trying to seek compensatory damages under the ADA or section 504 when they failed to first exhaust their options. Had the Court answered the question then, school district responses likely would have handled IDEA complaints with more care and screened them for potential ADA and section 504 violations.

III. PEREZ V. STURGIS PUBLIC SCHOOLS: A TURNING POINT IN DISABILITY RIGHTS ADVOCACY

Part III delves into Perez, explaining how the petitioner, Miguel Luna Perez, faced educational neglect and misrepresentation from his school district before pursuing an ADA claim for emotional distress. Perez establishes a precedent for families to pursue claims under federal laws like the ADA and section 504 without exhausting IDEA procedures, offering new legal avenues for students with disabilities. This Part argues that this decision will have significant repercussions for special education litigation, as it enhances families’ leverage in legal disputes and places financial strain on school districts’ budgets and abilities to provide special education services.

A. Discussion of Perez v. Sturgis Public Schools

Petitioner Miguel Luna Perez was a deaf student who attended schools in Michigan’s Sturgis Public School District from ages nine to twenty.¹⁶² Perez was an individual who qualified as having a disability under IDEA and the ADA because he had a physical and mental impairment that substantially limited multiple major life activities, like hearing and speaking.¹⁶³ Perez claimed that SPSD was required to provide an aide to translate classroom instruction and that his aides were unqualified sign language interpreters.¹⁶⁴ SPSD made multiple misrepresentations to Perez and his parents, including his academic achievements by inflating his grades, that his aides knew sign language, and that he had access to the same educational services as his peers.¹⁶⁵ Perez claimed that, in March 2016, just months before his high school graduation, SPSD informed him and his parents that he would not receive a high school diploma and instead would receive a “certificate of completion.”¹⁶⁶

This prompted Perez and his family to file an administrative due process claim with the Michigan Department of Education.¹⁶⁷ Perez and SPSD reached a settlement that included payment for additional schooling at the Michigan School for the Deaf, sign language instruction for Perez and his family, and payment of the family’s attorneys’ fees.¹⁶⁸ The settlement gave Perez what he was entitled to under IDEA, but there was another legal problem—SPSD also violated Perez’s rights under the ADA.

Perez subsequently sued in the Western District Court of Michigan, seeking compensatory damages for emotional distress under the ADA.¹⁶⁹ SPSD moved to dismiss, claiming that under section 1415(l) of IDEA, Perez was barred from bringing his ADA claim until he exhausted IDEA’s administrative procedures.¹⁷⁰ The district court agreed with SPSD’s argument and dismissed the suit, which the Sixth Circuit affirmed due to circuit precedent that previously addressed the issue.¹⁷¹ The Sixth Circuit opinion stated that, because Perez settled his IDEA claim, he was “barred from bringing a similar case against the school in court—even under a different federal law.”¹⁷² The Sixth Circuit found that federal law requires families to first exhaust IDEA’s administrative procedures as if the action was brought under IDEA, even if they were suing under another statute.¹⁷³ Because Perez’s core complaint was that SPSD denied him a FAPE, his suit sought relief that was available under IDEA, meaning he had to complete IDEA’s exhaustion requirements even if he wanted to bring a separate ADA claim.¹⁷⁴

The case was then brought before the Supreme Court, and the central question concerned “the extent to which children with disabilities must exhaust the[] administrative procedures under IDEA before seeking relief under other federal antidiscrimination statutes, such as the [ADA].”¹⁷⁵ There had been circuit splits on the interpretation of section 1415(l), so the Court finally decided to address this issue.¹⁷⁶ Previously, the Court declined to address this issue in Fry, articulating that “we leave for another day a further question about the meaning of § 1415(l): Is exhaustion required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one that an IDEA hearing officer may award?”¹⁷⁷

Here, the Court examined two features in section 1415(l): first, that IDEA is not meant to restrict an individual’s ability to seek remedies under the ADA or “ ‘other Federal laws protecting the rights of children with disabilities,’ ”¹⁷⁸ and second, that a qualification in the statute prohibits certain lawsuits with the language, “except that before the filing of a civil action under such laws seeking relief that is also available under [section 1415(l)], the procedures under subsections (f) and (g) shall be exhausted . . . .”¹⁷⁹ The preceding subsections (f) and (g) discuss children’s rights to due process hearings and the ability to appeal decisions to state educational agencies.¹⁸⁰

Perez interpreted the statute to require exhaustion of the administrative processes discussed in subsections (f) and (g) only to the extent he pursued a suit for remedies IDEA provided.¹⁸¹ Perez argued that this reading would not “foreclose[] his . . . claim because his ADA complaint [sought] only compensatory damages, a remedy everyone before [the Court] agree[d] IDEA cannot supply.”¹⁸² In contrast, SPSD interpreted the statute “as requiring a plaintiff to exhaust subsections (f) and (g) before [they] may pursue a suit under another federal law if that suit seeks relief for the same underlying harm IDEA exists to address.”¹⁸³ This reading would have prevented Perez from bringing his ADA suit because it stemmed from a FAPE violation, which is a harm IDEA addressed.¹⁸⁴ And Perez had already settled his administrative complaint instead of exhausting the administrative processes in subsections (f) and (g), so he would have been foreclosed from his ADA suit.¹⁸⁵

The Court found Perez’s interpretation comported more consistently with IDEA, particularly with section 1415(l)’s use of “remedies,” which treated it synonymously with “relief.”¹⁸⁶ The first clause discusses remedies, the dictionary definition of which is an enforcement of rights like money damages or an injunction.¹⁸⁷ The statute reads that “[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities,” so it should be construed that IDEA does not restrict or limit the availability of remedies like money damages under federal statutes, including the ADA.¹⁸⁸ The Court noted that there is an exception to this rule, which prevents individuals from seeking redress under other federal laws unless they exhaust the administrative procedures.¹⁸⁹ But the exception “does not apply to all suits seeking relief that other federal laws provide.”¹⁹⁰ The statute requires the exhaustion of administrative processes to apply only to lawsuits that seek relief that is also available under IDEA.¹⁹¹ Thus, the Court concluded that the exception did not bar Perez from his ADA suit, because he sought compensatory damages—a form of relief that IDEA does not provide.¹⁹² This interpretation required the Court to treat “remedies” and “relief” synonymously, which the Court found IDEA did in various places.¹⁹³ For example, the second clause in section 1415(l) refers to “seeking relief,” which complements how a plaintiff’s complaint includes “a demand for the relief sought.”¹⁹⁴

SPSD then responded by raising Fry as precedent.¹⁹⁵ However, Fry “went out of its way to reserve rather than decide [the] question” brought up in Perez, so it did not advance the school district’s argument.¹⁹⁶ In Fry, the Court held that IDEA’s exhaustion requirement does not apply unless a plaintiff seeks relief for a denial of a FAPE, since that is the only relief available from IDEA.¹⁹⁷ The Court found that Perez presented an analogous situation but ultimately asked a different question about whether a plaintiff needs to exhaust the administrative remedies when they are seeking a remedy that IDEA does not provide.¹⁹⁸ Similar to the Court’s answer in Fry, a plaintiff does not need to exhaust administrative processes under IDEA in this situation.¹⁹⁹ SPSD argued that Congress had practical reasons for requiring exhaustion, no matter the plaintiff’s preferred remedy, because exhaustion enables agencies to exercise their “special expertise” and promotes efficiency.²⁰⁰ The Court found SPSD’s argument “unclear” and that it was a “mistake[] to assume . . . that any interpretation of a law” that better serves its presumed objectives “must be the law,” as laws are the result of “compromise[s],” and no law relentlessly pursues its purposes.²⁰¹ Moreover, the Court reasoned that Congress might have aimed to ease the demand for administrative exhaustion when a plaintiff seeks a remedy available under IDEA but allow an exemption from exhaustion when a plaintiff seeks a remedy that IDEA cannot provide.²⁰² The Court found Perez’s argument more persuasive, reversed the decision of the Sixth Circuit, and remanded the case so Perez could proceed with his ADA lawsuit in district court.²⁰³

B. Perez’s Impact on Special Education Litigation

The Perez decision will impact how school districts and other educational agencies approach and settle IDEA complaints in the future. Families now have more leverage against school districts because they are not barred from seeking compensatory damages for failure to exhaust administrative procedures. School districts will likely approach settlement discussions differently, knowing that families now have an opportunity to be awarded compensatory damages. Although families may have more leverage during negotiations, a potential consequence could be that the Perez decision may lead to greater financial strain on school districts, which would prevent other students with disabilities from receiving their basic educational rights. School districts should anticipate an increase in the number of cases litigated because students can now “bypass [the] often slow-moving administrative proceedings under IDEA when their chief claim is for damages under other federal laws . . . .”²⁰⁴

It is worth noting that, due to systemic issues within school districts and state departments of education, even when families are awarded compensatory remedies, educational agencies may not disburse payments promptly or at all. For example, in New York City, parents of children with disabilities have sought the enforcement of orders from impartial hearings entered pursuant to IDEA, which the state department of education has failed to execute due to limited resources.²⁰⁵ In LV v. New York City Department of Education, parents sued the New York City Department of Education (“NYC DOE”) for failure to implement orders, such as funding tuition programs.²⁰⁶ The parents alleged that the NYC DOE had a “systemic problem” due to its failure to maintain a dedicated system for the timely enforcement of the orders, which deprived the plaintiffs of their right to a FAPE.²⁰⁷ In 2008, a settlement agreement between the parents and the NYC DOE was approved.²⁰⁸ Under the settlement, the NYC DOE was required to implement all impartial hearing orders within the time frame stipulated in the order or thirty-five calendar days after the order date if no time limit was specified.²⁰⁹ However, the NYC DOE failed to comply with the settlement terms for more than a decade. A Special Master was appointed in 2021 to investigate the NYC DOE’s delays in the implementation of the orders. In March 2023, the Special Master issued a report after conducting interviews with the plaintiffs, families, school staff, and NYC DOE staff.²¹⁰

The report highlighted that impartial hearings and orders have reached an all-time high in New York City, with the increased volume of requests attributable to the COVID-19 pandemic.²¹¹ It was recommended that the NYC DOE address its staffing crises in the short term and then digitalize its orders for better organization.²¹² One reason the NYC DOE provided for its inability to implement orders was due to NYC DOE staffing shortages.²¹³ The Special Master report was extremely detailed and included many short- and long-term action steps for the NYC DOE, including forty-one required steps that the NYC DOE had to take within a year. There were suggestions for the hiring, training, and retention of staff in the Implementation Unit, which oversees implementing decisions from impartial hearings, while other changes included creating a structure for parents to contact the NYC DOE when their orders are not implemented, providing a support hotline, and building better technology systems to implement orders.²¹⁴

Although this is a victory for families of students with disabilities in New York City, it comes after a decade of inaction by the NYC DOE. This was due to systemic failures on multiple levels, which is not uncommon in school districts and state educational agencies around the country. This is just one example of how structural issues in a system and a consistently underfunded agency will lead to ineffective educational opportunities. LV v. New York City Department of Education is an example of the persistent challenges in ensuring the effective implementation of special education remedies, even when the law provides for a favorable solution. Students legally entitled to reimbursements or tuition assistance from a school district remained in complex litigation for years to accomplish their goals. The tuition some of the plaintiffs requested was only a few thousand dollars, but the NYC DOE was so ill-equipped at executing orders that it remained noncompliant for years. Unfortunately, there is no simple solution for the NYC DOE’s structural issues. Rather, the NYC DOE faces a complex undertaking as it will need to upgrade its infrastructure and rehaul its staff to better respond to the influx of settlements that have piled up and the new hearings that are coming down the horizon.

This case is illustrative of how receiving monetary compensation is important and helpful for students with disabilities to receive a FAPE under IDEA, but a compensatory remedy might not yield anything substantial. The NYC DOE was bound by court orders, but the plaintiffs in LV still waited more than a decade for compensation. And it is unclear whether the recent judicial order will actually result in greater implementation of orders for other students with disabilities. It seems likely that students with disabilities will continue to endure neglect in the system if the state and educational agencies do not have proper mechanisms in place to provide students with their remedies. The NYC DOE manages the largest public school system in the nation, with a 2023–2024 school year budget of $37.5 billion.²¹⁵ Even as the NYC DOE likely has more resources than other school districts, it still struggles with the volume of orders and order implementation. As more decisions ordering monetary remedies are made post-Perez, school districts and state education departments will need to upgrade their infrastructure to deal with outstanding orders and future settlements. Another concern is whether there is funding and leadership dedicated to making those changes. At schools that struggle with leadership turnover among superintendents or principals, this can lead to inconsistency with vision and changing priorities affecting staff effectiveness and cohesiveness and making it even more difficult to train staff and support teachers in developing strong relationships with students.²¹⁶ Educational agencies should take the Perez decision seriously and take LV as a precautionary tale for judicial orders that compel major changes to address structural issues in regard to special education programs and the rights of students with disabilities.

In recent cases decided in the months following the Perez decision, courts have put together IDEA statute and the precedents from Fry and Perez to evaluate suits against public schools for alleged violations of IDEA, the ADA, or other antidiscrimination statutes. In Dale v. Suffern Central School District, the Southern District of New York found that the plaintiffs were not required to exhaust administrative remedies because the plaintiffs sought “a form of relief that IDEA cannot provide—specifically, compensatory damages,” and because exhaustion was not required in the circumstances because of the ruling precedent of Perez.²¹⁷ In Roe v. Healey, a First Circuit case decided in August 2023, the district court below found that plaintiffs were required to exhaust all their FAPE-related claims first, which included claims under IDEA, associated Massachusetts regulations, section 504 of the Rehabilitation Act, the ADA, and the Fourteenth Amendment (enforced through § 1983).²¹⁸ The Fifth Circuit now looks at whether a complaint concerns a denial of a FAPE.²¹⁹ If it does not concern the denial of a FAPE, then administrative exhaustion is not necessary.²²⁰ If the complaint concerns a denial of a FAPE, the court then looks to the relief sought, and if IDEA cannot provide the relief sought, like compensatory damages, the plaintiff does not need to exhaust IDEA’s administrative requirements.²²¹ Courts appear to be applying Perez consistently and are not barring plaintiffs from seeking relief for a FAPE violation that is not provided by IDEA, even if they have not exhausted the administrative procedures pursuant to section 1415(l).²²² At the very least, Perez clarified a confusing question for district and circuit courts left previously unanswered in Fry, so there is greater clarity for families seeking relief under IDEA or other antidiscrimination statutes.

IV. BEYOND PEREZ: IMPLICATIONS AND CHALLENGES IN SPECIAL EDUCATION POLICY

This Part explores the policy implications of the Perez decision, including whether this decision may cause more harm than benefit. It examines the advantages of allowing compensatory damages for families of children with disabilities, while also weighing the significant financial burdens such damages could impose on school districts. This Part also underscores the need for more explicit and accessible IDEA guidelines, so school districts can better understand and fulfill their obligations under IDEA.

A. Implications of the Perez Decision

IDEA’s exhaustion requirement applies to suits alleging violations under IDEA and to “civil action[s] under [other] laws seeking relief that is also available under [chapter 33].”²²³ Prior to the Perez decision, plaintiffs alleging a denial of a FAPE and requesting a remedy that IDEA did not provide still had to exhaust administrative remedies under IDEA.²²⁴ However, now the Perez Court has opened up the possibilities for families of children with disabilities by allowing them to pursue money damages under different federal laws, even when they are seeking a denial of a FAPE. Following this decision, district courts and courts of appeal have issued decisions citing and applying Perez, acknowledging that exhaustion is required only if the plaintiff seeks relief that is available under IDEA.²²⁵ However, plaintiffs attempting to argue that the exhaustion requirements are no longer relevant in IDEA suits will likely still be unsuccessful, since Perez applies only to plaintiffs who bring suits under a separate federal law besides IDEA and for compensatory damages that IDEA does not provide.²²⁶ Various circuit courts have remanded matters to district courts so they can apply the Perez ruling.²²⁷

While it appears beneficial for families of children with disabilities to receive compensatory damages for inadequate educational opportunities under IDEA, the traditional remedies offered for IDEA noncompliance may be more appropriate for various reasons. For example, when a school district fails to comply with IDEA, restructuring the education system to provide adequate services for its students in the future seems more reasonable than offering a sum of money. Although there is an argument that financial penalties can motivate substantial changes from educational agencies, this approach overlooks the systemic problems within a school district and potential oversight from the state educational agency. In addition, the increased focus on litigation now that parents can bypass administrative procedures, will divert resources from addressing structural issues in school districts’ special education programs, especially given the potential for increased non-meritorious litigation to seek money damages after the Perez decision. The aggregate effect of school districts paying compensatory damages and dedicating more time toward lawsuits could detract attention from students, leaving school districts unable to enhance their special education services and at risk of providing reduced educational quality with reduced financial resources at their disposal.

The NYC DOE published data that showed that 37% of preschoolers with disabilities did not receive their mandated special education services in the 2021–2022 school year.²²⁸ More than 6,500 preschoolers who needed speech therapy did not have one session in the entire school year.²²⁹ Advocates for Children of New York, a non-profit dedicated to helping at-risk students receive a high-quality education, recommends New York City invest $50 million into the city’s upcoming budget to increase preschool special education services.²³⁰ That investment would go into hiring more teachers, increasing pay, and providing services similar to those recommended by the Special Master in LV.²³¹ With thousands of students struggling in school districts to access their services, and even more students potentially not being identified as needing services, it is concerning that, following Perez, more money might be paid out to plaintiffs, while less money goes toward special education services.

Another avenue school districts should turn toward is the Office of Special Education and Rehabilitative Services’ Office of Special Education Programs (“OSEP”), which provides discretionary grant awards.²³² In the 2023 fiscal year, OSEP provided over $110 million under IDEA to fund new programs to help educate children with disabilities.²³³ This includes hiring and training special education staff, early intervention services, and technical assistance to help states meet IDEA data collection.²³⁴ Investment in infrastructure and staffing will help school districts avoid lawsuits in the first place and avoid violating IDEA by providing inadequate special education services or failing to identify and track students with disabilities.

Another effect the Perez decision may have on educational agencies is in their assessment and implementation of IEPs and other accommodations for students with disabilities. School districts and states must account for the possibility of being sued under the ADA and other federal laws regarding equal access. Student requests should be addressed not just through IDEA’s lens but also through the lenses of the ADA and section 504. Failure to do so will leave educational agencies open to greater liability now that the remedy of money damages is accessible to students and families. School districts that are most vulnerable to increased lawsuits are clearly those with longstanding violations of students’ FAPE. For school districts that are diligent about abiding by IDEA’s requirements and providing proper FAPE to their students who require accommodations, the implications of Perez will not be as intense.

The Perez decision allows students with disabilities to bring discrimination claims under the ADA to receive compensatory damages, but plaintiffs will need to prove their discrimination claims. While this presents an enormous opportunity for students like Perez to have their day in court, plaintiffs still need to prove intentional discrimination to receive monetary claims under the ADA.²³⁵ The bar to receive monetary damages under either the ADA or section 504 remains high²³⁶ because proving intentional discrimination is difficult.²³⁷ Plaintiffs have to demonstrate that school districts were “deliberately indifferent to [a] student’s rights, exercised gross misjudgment, or acted in bad faith.”²³⁸ So, although it seems like there will be an uptick in lawsuits against educational agencies post-Perez, that does not mean that plaintiffs will prevail and actually receive monetary damages.

It is more likely that families can leverage this change into receiving larger settlement payouts from school districts, since they can threaten to escalate their claims from negotiations to court.²³⁹ Perry A. Zirkel, a special education law expert and law professor, expressed that the special education field remains “entirely unaffected” because the chances of courts awarding money damages for ADA or section 504 lawsuits “remain very strongly against the parents.”²⁴⁰ Zirkel does acknowledge, however, that after Perez, there will likely be more litigation that increases court congestion and parents’ leverage during settlement negotiations.²⁴¹ Another reason Perez strengthens families’ positions is that attorneys for school districts view litigating IDEA claims as overly cumbersome and in need of major reform.²⁴² Even when school districts prevail, they must pay substantial attorney’s fees for trial preparations and attending hearings, while special education teachers must spend time attending additional IEP meetings, interviewing with attorneys, and preparing to testify—all of which takes them away from their normal classroom responsibilities.²⁴³ Even if a parent’s complaint is frivolous, school districts sometimes agree to parental demands simply because a school district’s own attorney’s fees would likely be greater to litigate than the requested changes to IEPs or compensatory education.²⁴⁴

On the other hand, the ADA could help alleviate financial difficulties with litigation, as judges could award monetary remedies along with discretionary attorney’s fees.²⁴⁵ This potential source of funding could change lawyers’ strategies to bring ADA claims against school districts simultaneously with a due process hearing over IDEA complaints. Special education lawyers could also work on a contingency fee basis now that monetary damages are available. The decision to litigate in court is a personal one, however, and even with monetary damages, families may be reluctant to pursue that avenue.

Another critical factor to consider is the financial constraints and pressure on school districts Perez may cause. There is a strong possibility that allowing compensatory damages and having school districts pay out monetary awards to families will affect school districts’ ability to provide adequate special education services. School districts often operate under tight budgets, with funds allocated across various departments and needs. Because more parents have begun requesting services from school districts under the ADA and section 504, aggregate costs for accommodations like special transportation, testing accommodations, and publicly provided education at private schools have compounded.²⁴⁶ With budget constraints and added costs from litigation and monetary damages, fulfilling all IDEA requirements following Perez could overwhelm school budgets.²⁴⁷ This could lead to the trimming of other operational expenses or essential educational services, like school psychologists, speech pathologists, and extracurricular teachers. Diverting funds from valuable programs for children is a concern, especially because districts in lower-income areas will likely be affected at disproportionate rates. School districts primarily rely on local property taxes, state funding, and federal assistance for their budgets, so the financial ability to comply with IDEA procedures might not be feasible for school districts, even those that want to eradicate the educational inequities that students with disabilities experience. Another possibility is that school districts might be able to wield their insurance coverage effectively, depending on their coverage, to cover or defend against an ADA claim.²⁴⁸ This could reduce litigation costs and help offset higher settlement payouts to plaintiffs for school districts, but it depends on the insurance coverage plan and whether premiums might increase with more claims submitted.

B. Challenges in Policy Implementation and Compliance

School districts should not use an unclear statute as an excuse for their failure to provide adequate learning, however. The long-term harm caused to Perez by SPSD could have been mitigated if SPSD simply provided a certified sign language interpreter from the beginning. Even if IDEA standards are confusing, SPSD should have informed Perez’s family about his actual performance and not given inflated grades. There was a serious violation of Perez’s basic education for twelve years, and such egregiousness in school districts must be prevented. The lack of following basic standards of practice for deaf students in Perez is unacceptable considering there is usually guidance available from each state’s department of education.²⁴⁹ For example, SPSD could have reached out to the Michigan Department of Education Low Incidence Outreach to receive resources about serving students with hearing or visual disabilities.²⁵⁰

Even though there may be financial strain on school districts, it is still essential for school districts to strengthen their special education staff, services, and administration, not merely to avoid lawsuits and financial penalties following Perez, but to genuinely meet the needs of students with disabilities. To reduce the risk of litigation and ensure effective compliance, there is a pressing need for clear, specific guidelines detailing the standards school districts must meet under applicable statutes. That is an imperative issue that Congress should address in the near future, now that Perez has been decided. The National Council on Disability (“NCD”), an independent federal agency, was created to provide recommendations that promote disability policies, programs, and procedures that enhance the lives of individuals with disabilities.²⁵¹ Congress should rely more on the NCD’s recommendations and have the NCD host forums and publish more reports about how to improve IDEA implementation for school districts. Clarifying these compliance standards would provide much-needed direction for school districts, helping them fulfill their legal obligations to students with disabilities and reducing the likelihood of costly legal battles.

Although there is potential for Perez to compel school districts that do not currently meet IDEA requirements to reform their special education programs, the statute’s broad and not-well-defined framework presents additional challenges to effectively complying with IDEA.²⁵² The statute’s ambiguity can lead to varied interpretations of what it requires, which is especially challenging for school districts with limited resources that already struggle to determine what services need to be rendered from convoluted state and IDEA legislation. School districts also need well-trained, qualified professionals available to provide services to students with disabilities, another challenge for districts with limited budgets, as it is difficult to attract and retain talent with low salaries. Training and professional development for the latest requirements in special education law specific to a school district’s city or state is also costly. For successful IEP implementation, there needs to be continuous monitoring and evaluation of students with disabilities in their regular classrooms and during their services. Overworked special education teachers may struggle to manage observations and oversee regular IEP meetings. Limited resources can easily result in poor infrastructure and ineffective tracking of student performance and students with disabilities.

Increased advocacy for state and federal funding to address IDEA noncompliance and ease the burden of responding to an influx of complaints could ease the pressure on school districts. There should also be clearer guidelines and frameworks for districts to better understand and implement IDEA requirements. Establishing a state-level advisory body, for example, can offer guidance and assistance for the state-specific rules, in addition to IDEA procedures. Congress may also choose to address this situation through amendments to IDEA or when IDEA is reauthorized.²⁵³

Race and socioeconomic status are also important considerations for the impact of Perez on students with disabilities. Students of color are generally overrepresented in special education settings, in which they are “disproportionately labeled in ‘soft’ disability categories such as emotionally disturbed, [and] ADHD . . . .”²⁵⁴ Once labeled in those categories, those children often “receive differential access to high-quality education, are not tracked toward college, experience higher rates of suspension and expulsion, and are disproportionately represented in juvenile justice prisons.”²⁵⁵ In 1997, a reauthorization and amendment to IDEA acknowledged the problem of overrepresentation of minority students in special education classes, specifically that “[s]tudies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.”²⁵⁶ A major weakness in the due process model is that parents who have little agency in the process, like those with limited sophistication in educational advocacy and access to legal representation, struggle to advocate on behalf of their children.²⁵⁷

Additionally, even though families have the option to sue, it is expensive to hire a private attorney to sue a school district, and a family’s socioeconomic means often influences the outcome.²⁵⁸ In Endrew, Endrew’s parents paid for expert witnesses in addition to their lawyer and initially funded a private, specialized education before pursuing reimbursement.²⁵⁹ Endrew had to demonstrate that the school district prevented him from making the necessary progress toward his IEP. If Endrew’s family did not have the funds to cover the fees of the lawsuit and private schooling, he would not have been able to demonstrate his progress. Low-income parents can hardly be expected to undergo this financial burden without a guarantee, since money damages might not offset the cost of expensive litigation. Not to mention, their child might continue to fall further behind while the legal proceedings unfold. As an overwhelming percentage of children with disabilities who qualify for IDEA services are low-income, it is unclear whether more parents will go through with litigation, even with the potential for compensatory damages, simply due to a lack of legal sophistication or limited resources.²⁶⁰

C. Strategic Approaches and Systemic Changes in Special Education

In July 2023, the U.S. Department of Education released guidance to help states address and better understand IDEA requirements, focused on providing students with a FAPE.²⁶¹ “With this guidance, States will have the information necessary to exercise their general supervision responsibilities under IDEA and ensure appropriate monitoring, technical assistance . . . , and enforcement regarding local programs.”²⁶² The guidance is thorough in identifying noncompliance, while outlining the timeline for correcting noncompliance, the enforcement actions a state must take if a program does not meet IDEA requirements, and the proper way to monitor local educational agency programs.²⁶³ States bear the primary responsibility of ensuring that districts are adequately serving students under IDEA through “general supervision,” so better state oversight of local school districts is critical to ensuring that schools meet their obligations to students with disabilities.²⁶⁴

The federal guidance recommends that each state set up a robust monitoring system that “swiftly identifies and corrects noncompliance; increases accountability through the collection of timely and accurate data; and ensures the full implementation of IDEA to improve functional outcomes.”²⁶⁵ This guidance came out after OSEP identified a failure of multiple states to comply with IDEA, so OSEP is providing “accessible and actionable information” for states to exercise their duties to help protect the rights of students with disabilities.²⁶⁶ Between 2014 and 2023, on average, only seven states received the “meets requirements” determination in accordance with IDEA statute for Part B responsibilities regarding providing a FAPE.²⁶⁷ OSEP released this guidance to increase accountability by strengthening states’ general supervision programs to improve compliance. Ideally, this new guidance will take the onus off parents filing formal complaints as more states bolster their oversight mechanisms.

This guidance is another step in the right direction, especially after Perez, because it forces states to take more aggressive actions against noncompliant school districts. Notably, the guidance notes that allegations about IDEA violations can come from media reports, feedback sessions, and other areas beyond the normal formal-complaint setting.²⁶⁸ Now, a school district cannot be found in compliance with IDEA until they have completely resolved the issue that was raised, and school districts must address noncompliance as soon as possible and no later than a year after it is flagged.²⁶⁹ Monitoring ensures that school districts are following IDEA requirements, but OSEP will need to take action beyond issuing guidance for school districts to truly start remedying their IDEA noncompliance.

School districts now face the challenge of adapting to a new legal environment, in which IDEA’s due process procedures may no longer serve as an efficient and exclusive avenue to address the needs of students with disabilities, but as a potential battleground for financial claims. As more complaints and cases are heard in district courts, the Perez decision will likely be a reckoning for school districts with a history of neglecting students with disabilities. This will hopefully provide enough financial incentive for those school districts and state education departments to shore up their management and oversight of special education services. Like the NYC DOE’s new plan, other educational agencies should consider evaluating areas for improvement in their own special education services to avoid litigation and provide an inclusive classroom environment for students with disabilities that IDEA was created to address. Educational agencies are also likely to place greater care in crafting settlements to comprehensively address all issues that families are alleging, so there is greater potential for children with disabilities to access a broader range of remedies and legal protections. There is great potential for the Perez decision to initiate comprehensive and thoughtful change for the treatment and schooling of students with disabilities in classrooms, as educational agencies elect to avoid costly litigation and expensive compensatory damages in favor of addressing systemic issues within their schools.

CONCLUSION

As Justice Gorsuch stated, the Perez decision “holds consequences not just for Mr. Perez but for a great many children with disabilities and their parents.”²⁷⁰ Perez’s heartbreaking story about attending SPSD for over a decade with unqualified interpreters, leaving him unable to understand material or even learn sign language properly, is unfortunately just one of the many stories of students with disabilities who have been failed by their school systems. The Court’s unanimous decision removes unnecessary burdens and clarifies the requirements and remedies that are available for children with disabilities and their families when they pursue litigation against school districts.²⁷¹ The Court explained that a student with a disability need not first exhaust the administrative requirements of IDEA before filing a lawsuit seeking compensatory damages under the ADA or other federal antidiscrimination laws, since IDEA cannot provide those remedies. Though the lasting effects of this decision are yet to be seen, there are practical implications for school districts effective immediately, including a greater urgency to be responsive to parent concerns and student needs, abide by IDEA procedures, and implement student IEPs effectively. At the very least, the special education world can feel cautiously optimistic that Perez will help more students be made whole by the legal system and by educators who ensure that students with disabilities’ unique needs are met. After all, there were approximately 7.6 million children receiving services under IDEA in the 2022–2023 school year, so Perez has far-reaching implications.²⁷²

While this decision empowers families by holding school districts financially accountable, school districts’ ability to provide adequate special education services may be hindered if schools spend more time battling litigation and paying money damages. Nonetheless, this unanimous decision preserves IDEA’s clear purpose of allowing students with disabilities to receive a FAPE as soon as possible and to preserve their legal rights under other federal statutes.²⁷³ Perez is momentous because, as Justice Kagan acknowledged, oftentimes, it is “the parents [of students with disabilities] that have the greater incentive to get the education fixed for their child[ren],” and this decision allows students with disabilities to receive everything they are entitled to under IDEA and also receive compensatory damages under the ADA.²⁷⁴ The decision underscores the need for school districts to address structural problems that prevent students with disabilities from access to their rightful educational opportunities. As school districts grapple with Perez, we will surely see whether the Court’s holding delivers financial redress to children with disabilities who are discriminated against, suffer harm from, and have claims under both IDEA and the ADA, and how the future landscape of special education is transformed as a result.

98 S. Cal. L. Rev. 473

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Isabelle Yuan*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. History 2020, Wellesley College. Many thanks to the editors of the Southern California Law Review for their thoughtful feedback. Thank you also to Maia Lee and William Wang for their invaluable guidance and support. All mistakes are my own.

Enabling Class Litigation as an Approach to Regulating For-Profit Colleges – Note by Blake Shinoda

May 2014February 2018Southern California Law Review Admin

From Volume 87, Number 4 (May 2014)
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The above quotes from two of the primary players in the for-profit college industry highlight the industry’s polarizing and divisive regulatory issues. This industry has seen unprecedented growth in recent years, increasing enrollment by 225% from 1998-2008. In fact, for-profit colleges received $32 billion in federal grants and loans from 2009-2010. This number accounted for about 25% of all federal student aid distributed despite the industry enrolling only 10-13% of all college students (about 2.4 million students). The prominence and growth of for-profit colleges is highlighted by one for-profit college’s recent entry into a Division I athletic conference.

However, recent reports of fraudulent and deceptive recruiting, and high student default rates have plagued the industry, culminating in the release of a negative Senate report by the Health, Education, Labor, and Pensions Committee (“HELP Report”). One such report was an undercover U.S. Government Accountability Office (“GAO”) report of fifteen for-profit colleges that found that each school made questionable or deceptive recruiting statements. Additionally, the HELP Report found that the average tuition at for-profit colleges exceeds that of their respective public school counterparts (for certificate programs, associate’s degrees, and bachelor’s degrees). For example, a bachelor’s degree in business administration at the for-profit Alta College in Colorado costs $80,466 compared to $60,704 at the University of Colorado Boulder.” Moreover, the Education Department recently released the three-year cohort default rate from 2009, measured by the percentage of student borrowers who entered repayment and defaulted within the past three years for a given school. The three-year default rate was 22.7% in the for-profit college sector compared to only 11% in public colleges and 7.5% for nonprofit private colleges.

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Policing State Testing Under No Child Left Behind: Encouraging Students with Disabilities to Blow the Whistle on Unscrupulous Educators – Note by Richard C. Herrera

September 2007February 2018Prabhjyot Singh

From Volume 80, Number 6 (September 2007)
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With these words, U.S. Secretary of Education Margaret Spellings expressed her belief that the progress of state public educational systems can only be trusted when supported by objective data. While the age-old adage, “numbers do not lie,” may hold true in other contexts, the results of recent investigations along with teacher and student allegations suggest that in the educational context, sometimes they do. In an effort to feign educational progress on state assessment tests in reading and mathematics, educators at state and local levels are targeting low performing students by excluding these students from state testing, providing them with the correct answers to test questions during their exams, and doctoring their answer sheets before submitting them for scoring.

What is driving educators to cheat? The answer: federal legislation known by four words that are striking fear into educators throughout the nation – “No Child Left Behind.” Few can argue with the Act’s admirable goals: (1) ensuring that all children, including those historically left behind, are held to the same academic achievement standards; (2) narrowing the achievement gap between our nation’s highest and lowest performing students; and (3) ensuring that all students reach grade-level proficiency by 2014. However, under No Child Left Behind (“NCLB”), states, school districts, and public schools are exposed to an escalating series of harsh sanctions when student test scores on state assessment tests in reading and mathematics do not reflect “adequate yearly progress.” Since NCLB’s inception, many of our nation’s school districts and public elementary and secondary schools have failed to make adequate yearly progress. These failures have coincided with reports indicating that teachers and administrators, whose jobs and professional reputations are at risk, are doing whatever it takes to portray progress.

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The Researcher’s Second Laboratory: Protecting Our Children from Social Surveys in Public Schools in Light of Fields v. Palmdale School District – Note by Jesse Fu

March 2007March 2018Prabhjyot Singh

From Volume 80, Number 3 (March 2007)
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Vanessa Shetler was shocked to learn what her eight-year-old son went through one seemingly ordinary day in his third-grade class. After coming home from school, Ms. Shetler’s son informed his mother that instead of spending the day learning math and reading, he was asked by the school how frequently he thought about having sex or touching other people’s “private parts.” Had these questions been presented as part of a routine sex and health education program for elementary school students, perhaps Ms. Shetler would not have been so upset. These questions, however, were not a part of such a program. Instead, the school, in collaboration with a mental health counselor, distributed a survey containing numerous sexually charged questions to some of its students. The survey asked students how often they thought about washing themselves because they felt dirty inside or if they ever had “sex feelings” in their bodies, for example. What is more, it asked if they ever thought that they touched their own “private parts” too much and if they ever could not stop thinking about sex.

Ms. Shetler was just one out of many parents who became outraged because of the survey and believed that the questions were “putting poison into kids’ minds” because it discussed sex and other subjects that third graders should not be learning about. The survey was not given solely to third graders, however – first and fifth graders were also asked to answer these same questions. The school claimed that the survey was designed to establish a baseline for measuring trauma in children, for the purpose of ascertaining any impediments to the students’ abilities to absorb material in school. Unpersuaded by the school’s rationale, parents claimed that the survey was inappropriate and, in response, filed suit against the school district.

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The Presses Won’t Stop Just Yet: Shaping Student Speech Rights in the Wake of Hazelwood’s Application to Colleges – Note by Jeff Sklar

March 2007March 2018Prabhjyot Singh

From Volume 80, Number 3 (March 2007)
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As word of the decision in Hosty v. Carter spread in the summer of 2005, many college journalists were outraged. To them, it was the end of free speech as they knew it. In Hosty, the en banc Seventh Circuit became the first court to apply in a college the framework of the Supreme Court’s Hazelwood case, which for nearly twenty years had given high school administrators wide latitude to restrict the content of student-run newspapers. As a result, many college journalists believed they were powerless against university presidents and deans, who they believed could charge into their newsrooms, lock up their computers, and even stop their presses – all with the blessing of the First Amendment.

In truth, the outrage did not begin with Hosty. It began seventeen years earlier with the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier. In Hazelwood, the Supreme Court held that in high schools, where school-sponsored student speech does not occur in a public forum, the school may regulate the content of that speech for reasons that are “reasonably related” to any of a range of “legitimate pedagogical concerns.” Thus, many people believed Hazelwood gave high school administrators near free reign to stop students from participating in one of our nation’s most sacred traditions – a free and independent press. And in Hazelwood, the Supreme Court explicitly left open the possibility that the case’s analytical framework might be applied to student publications in colleges too. But until June 2005, no court had dared to do so. Hosty was the first.

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Introduction

I. The Ties Between Creativity and Crime

A. General Similarities

B. The Overlap in Young People

II. The Relevance of the Developmental Framework

A. Developmental Basis for Creativity and Crime

B. Young People’s Developmental Need for Creativity

C. The Developmental Framework

III. The Prosecution and Punishment of Crime

The Significance of Discretion and Bias

Associations with Criminality or Creativity

Labeling Acts As Creative or Criminal

New Laws and Policies

B. Punishing Crime

IV. Creativity and Crime in Schools

A. Culture of Criminalization

B. Creating a Culture of Creativity

Conclusion

99 S. Cal. L. Rev. 499

INTRODUCTION

I. FOUNDATIONS OF SPECIAL EDUCATION LAW

A. History of IDEA

B. Inside IDEA

1. IDEA Requirements and Procedural Framework

2. State Responsibilities Under IDEA

3. Section 1415(l): IDEA Exhaustion Requirement

C. The ADA and Section 504 of the Rehabilitation Act

II. JUDICIAL MILESTONES IN SPECIAL EDUCATION

III. PEREZ V. STURGIS PUBLIC SCHOOLS: A TURNING POINT IN DISABILITY RIGHTS ADVOCACY

A. Discussion of Perez v. Sturgis Public Schools

B. Perez’s Impact on Special Education Litigation

IV. BEYOND PEREZ: IMPLICATIONS AND CHALLENGES IN SPECIAL EDUCATION POLICY

A. Implications of the Perez Decision

B. Challenges in Policy Implementation and Compliance

C. Strategic Approaches and Systemic Changes in Special Education

CONCLUSION

98 S. Cal. L. Rev. 473

From Volume 87, Number 4 (May 2014) DOWNLOAD PDF

From Volume 80, Number 6 (September 2007) DOWNLOAD PDF

From Volume 80, Number 3 (March 2007) DOWNLOAD PDF

From Volume 80, Number 3 (March 2007) DOWNLOAD PDF

From Volume 87, Number 4 (May 2014)
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From Volume 80, Number 6 (September 2007)
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From Volume 80, Number 3 (March 2007)
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From Volume 80, Number 3 (March 2007)
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