SPECIAL REPORT
Improving Education Services for Students in Detention and Confinement
Facilities
Peter E. Leone* & Sheri Meisel**
I. Introduction
Approximately 90,000
young people are now in custody in public and private juvenile correctional
facilities in the United States.1 Those incarcerated are disproportionately
male, African-American, poor, and have significant learning and/or
emotional problems that entitle them to special education services.2
The most common disabling conditions among juvenile offenders are
developmental and learning disabilities as well as emotional or
behavioral disorders. Many juveniles with disabilities in detention
do not receive the educational services to which they are entitled.
Studies document the failure of juvenile
correctional institutions to provide adequate educational services
to young people with disabilities.3 Ineffective governance of education
programs in juvenile corrections, the mobility of adjudicated young
people, and poorly developed links between public schools and institutional
settings contribute to the academic problems of incarcerated young
people.4 In response to inadequate education services for young
people in correctional settings, advocates have initiated class
action litigation to secure educational rights for them.
This article examines the educational
rights of young people in juvenile corrections. It emphasizes the
rights of young people with disabilities and how they can obtain
their rights and achieve greater access to educational services.
II. Educational Entitlements
All states have compulsory attendance laws and
provide educational services through local school districts, private
schools, or home schooling.5 While considerable variability exists
from state to state, education statutes and regulations typically
specify the length of the school day and year, the minimal range
of course offerings in elementary and secondary schools, and the
number and types of courses required for graduation. In some jurisdictions,
state boards of education publish lists of approved textbooks local
school districts must use to select their books.
III. Individuals with Disabilities Education
Act
In addition to general education entitlements available
to all school-aged children within a state, children with disabilities
are entitled to special education services through federal legislation
and corresponding state statutes or regulations. The Individuals
with Disabilities Education Act ("IDEA"), through the spending power
of Congress, mandates that states receiving federal support for
education of students with disabilities ensure that all eligible
students receive a free appropriate public education.6 The provisions
of IDEA have applied to all states receiving federal financial assistance
under Part B of this legislation since its passage in 1975.7 IDEA
was landmark legislation because it granted parents of children
with disabilities, and those suspected of having disabilities, procedural
and substantive rights concerning the assessment, identification,
and education of their children. Specifically, IDEA requires that
public schools and state-operated programs, such as juvenile correctional
facilities, provide each eligible child with a free appropriate
public education in the least restrictive environment.8 The education
program must use a nondiscriminatory evaluation process to identify
youth who are eligible for services.9 Parents must consent to the
assessment process and have the opportunity to contribute to decisions
concerning the development of an individualized education program.10
While the scope and specificity of IDEA represented unprecedented
federal involvement in state and local education, it also provided
statutory guarantees of education for all disabled children, ages
five to 21.11 After IDEA was passed, when schools failed to provide
appropriate services to children with disabilities, advocates no
longer had to rely on constitutional due process or equal protection
claims to secure educational opportunities for these children. The
law provides local and state-level mechanisms to appeal the decisions
of school districts and opportunities to seek redress in court.12
Re authorizations of IDEA have broadened the eligibility to children
from three to 22 years of age in most states and have emphasized
the transition of young people from school programs to the community.
In 1986, the passage of the Handicapped Children's Protection Act
guaranteed reimbursement of attorneys' fees to parents who prevail
in litigation brought under IDEA.13 In many states, litigation before
passage of IDEA in 1975 was initiated to secure the right to education
and related services for children with disabilities. In subsequent
years, much of the litigation has sought to define and clarify the
nature of that right.14 While most cases involving claims under
IDEA have been heard by U.S. District Courts and Circuit Courts
of Appeal, a few cases have reached the United States Supreme Court.
The Court has addressed issues such as the meaning of "appropriate
education,"15 clarifying whether specific services are medical or
educational in nature and whether they are covered under IDEA.16
The Court has also addressed: payment of attorney's fees and costs
when parents prevail in disputes with local school districts concerning
services;17 classification of children with communicable diseases
as disabled for educational purposes;18 and, disciplinary exclusion
of students with emotional or behavioral disorders.19 Despite regulations
governing the education of school-aged youths and specific entitlements
for students with disabilities, detention and confinement facilities
often fail to meet minimal state standards and frequently provide
an education that is substantially inferior to public school programs.
During the past few years, advocates have challenged the quality
and availability of education for young people in detention and
confinement and have used special education entitlements to advance
their claims. While many of these cases are currently being litigated,
some suits have been settled. Before reviewing the litigation concerning
educating young people with disabilities in juvenile correctional
facilities, a discussion of the prevalence and overrepresentation
of disabling conditions in corrections is necessary to place the
litigation review in context.
IV. Prevalence of Disabilities in Juvenile Corrections
While a few studies have attempted to determine
the prevalence of young people with disabilities in correctional
institutions, methodological problems and variability in policies
across jurisdictions have made it extremely difficult to come up
with reliable figures. Studies have identified 42% of all juvenile
offenders in Arizona as disabled and as many as 60% of all juvenile
offenders in Florida and Maine.20 To address this problem, Casey
and Keilitz conducted a meta-analysis of all of the prevalence studies
of developmentally and learning disabled juvenile offenders.21 They
reported that approximately 12.6% of juvenile offenders had developmental
disabilities and 35.6% of juvenile offenders had learning disabilities.22
Casey and Keilitz also reported that the quality and number of studies
of young people with emotional disturbance in juvenile corrections
was not sufficient to conduct a meta-analysis of studies for this
population.23 In contrast, a recent analysis of studies on the prevalence
of mental disorders among young people in the juvenile justice system
estimates that approximately 22% of those incarcerated have significant
mental health problems.24 Whether one accepts 30%, 60%, or a higher
percentage as a reliable estimate for the prevalence of disabling
conditions in juvenile corrections is beyond the focus of this discussion.
What we do know is that the percentage of young people in juvenile
correctional facilities who were previously identified and served
in special education programs before their incarceration is at least
three to five times the percentage of the public school population
identified as disabled.25
V. Litigation
Advocates have used IDEA and Section 504 to litigate
on behalf of incarcerated youths with disabilities in a number of
states.26 Since 1975, more than 20 class actions involving special
education services in juvenile corrections have been filed. With
few exceptions, the cases that have been settled never went to trial,
and very few published judicial opinions exist. Most of these suits
have been settled through consent decrees or settlement agreements
that respond to nearly all of the claims made by plaintiffs, typically
after years of procedural delays. Table 1 displays cases involving
special education claims in juvenile corrections litigation. A quick
review of the table reveals that the cases come from many regions
of the United States and that complaints involved special education
issues in isolation as well as with other claims. In addition, for
suits that have been settled, the length of time between the initial
complaint and settlement ranged from about two to seven years. A
review of three cases illustrates some of the problems associated
with educational services in juvenile corrections.
A. Andre H. v. Sobol 27
This suit, initiated in May 1984, was brought on
behalf of juveniles eligible for special education services at New
York City's Spofford Juvenile Detention Center. Plaintiffs' attorneys
claimed that Spofford, a detention and holding facility, (1) conducted
no screening or child-find activities to identify young people with
disabling conditions, (2) held no multidisciplinary team meetings
to determine eligibility and plan appropriate education, and (3) made
no attempt to obtain records from schools that young people had previously
attended.28 As a result of these and other practices, no special education
services were provided to detained young people at Spofford. In January
1991, seven years after the initiation of the suit, a settlement was
signed by attorneys for the plaintiffs and attorneys for the defendants,
New York City Department of Juvenile Justice and the New York City
Board of Education. The settlement required Spofford to develop a
multidisciplinary team at the detention center and fully implement
the provisions of the Individuals with Disabilities Education Act.
The agreement also required the parties to jointly appoint a monitor
to visit the facilities semi-annually for three years and determine
the extent of compliance with the agreement. At the conclusion of
the monitoring period, Spofford was found in compliance.29
B. Johnson v. Upchurch 30
In contrast to Andre
H., which only addressed special education issues, this case addressed
a broad range of issues in juvenile corrections in addition to education
services for students with disabilities. In 1986, Matthew Johnson,
a youngster confined to Catalina Mountain Juvenile Institution near
Tucson, filed a complaint on his own behalf concerning his treatment
at the juvenile correctional facility.31 A subsequent class action
suit claimed that the Arizona Department of Corrections failed to
provide special education services. Additionally, plaintiffs claimed
that the conditions of confinement were unsanitary, hazardous, and
punitive. In the spring of 1988, when there were no special education
services at the facility, the plaintiffs requested an injunction requiring
the Department of Corrections to fill a vacant teaching position and
provide appropriate services. The Court appointed a special master
to help resolve educational complaints and evaluate special education
services. After long negotiations, Johnson was settled in May 1993
through a consent decree that required broad reforms in juvenile corrections
throughout Arizona. The consent decree also specified that a committee
of consultants oversee and monitor the implementation of the agreement.32
Now, the Arizona Department of Juvenile Corrections is in compliance
with all education components of the consent decree and with most
other provisions.
C. Smith v. Wheaton 33
In contrast to the two cases just discussed, Wheaton,
filed in U.S. District Court in Connecticut in 1987, has not been
settled. Like Andre H., the complaint in Wheaton focused only on
education of incarcerated young people with disabilities. In contrast
to Andre H., the plaintiffs in Wheaton were incarcerated in a long-term
confinement facility rather than in detention. The plaintiffs in
this case complained that the Long Lane School, a juvenile correctional
facility operated by the Connecticut Department of Children and
Youth Services, failed to meet minimum timelines for evaluation
of young people and implementation of special education services.34
Plaintiffs also alleged that parents were not involved in education
decisionmaking for their children with disabling conditions, and
that no related services such as counseling and occupational therapy
were available. In addition, plaintiffs alleged that Long Lane failed
to develop individualized education programs as required by IDEA,
and that the school failed to develop adequate transition plans
for young people leaving the facility. Although plaintiffs and defendants
in Wheaton have held settlement discussions during the past five
years, the case is still unresolved, though a trial date has been
set. These three cases are somewhat representative of the litigation
in this area and the problems associated with education services
in juvenile corrections in many jurisdictions. In each case, plaintiffs
alleged violations of IDEA. In the two cases that were settled,
defendants responded by providing educational services that met
the requirements of the law and were comparable to services available
for young people in the public schools. Beyond the additional educational
costs associated with having provided inadequate services, the defendants
were required to pay litigation costs. In Arizona, the state paid
more than $1.8 million in plaintiffs' attorney's fees and more than
$180,000 to two named plaintiffs; the cost of private attorneys
defending the state added to the total cost of this litigation.35
VI. Implications
This litigation raises a number of issues for administrators,
policy makers, and advocates. First, litigation in several jurisdictions
has been a tool, albeit an expensive one, to reform juvenile correctional
programs.36 Given the current political climate, reforming juvenile
corrections is not a task that politicians individually, or as members
of legislative bodies, are willing to tackle. In some instances,
litigation has led to the establishment of special education services
that did not exist previously in spite of the plain, inclusive language
of federal statutes and corresponding state regulations. In Arizona,
the litigation enabled advocates to work with legislative leaders
to create a Department of Youth Treatment and Rehabilitation37 and
create a school board for the new department. Before the current
reforms, the education programs in Arizona's juvenile confinement
facilities did not meet state guidelines for the minimum amount
of instruction each week. Among other things, the Johnson v. Upchurch
consent decree required the state to pay teachers in juvenile correctional
facilities salaries comparable to those paid to the public schools,
and become accredited by the North Central Association of Colleges
and Secondary Schools. A second related issue involves the role
of state departments of education in providing oversight and consultation
to juvenile correctional programs. Each department of education
guarantees that all schools and state-operated programs will provide
special education and related services to eligible young people
as a condition to receive federal funds. In reality, the U.S. Department
of Education has only recently withheld funds from a state that
failed to provide appropriate special education services to students
who were excluded from school.38 The Department of Education has
never withheld funds from states that fail to provide adequate special
education programs in their juvenile correctional facilities. Until
monitors at the U.S. Department of Education and their counterparts
in state departments of education take seriously mandates to ensure
that all young people with disabilities receive appropriate education
services, advocates and parents appear to have no other recourse
than litigation. Presumably, incarcerated young people with disabilities
and their parents have the same due process protections in education
as public schools. However, a number of family factors, the distance
of young people from their home communities and schools, and the
lack of administrative mechanisms in some juvenile systems make
it unlikely that parents and their children will have access to
those services. A third issue raised by the litigation involves
the competing purposes of juvenile corrections. While rehabilitation
is often cited as one of the purposes of juvenile corrections, incapacitation
and punishment are frequently higher priorities. In many facilities
and state agencies, the organization and administrative structure
do not support rehabilitation as an outcome for juvenile clients.
Often, education must compete with security, maintenance of the
physical plant, and new construction for limited fiscal resources.
In Arizona, for instance, before the reforms associated with Johnson
v. Upchurch, there was no annual budget for education other than
for teachers' salaries. Education program managers had to go "hat
in hand" to the superintendent of their facility to obtain books,
pencils, paper, and other consumable materials associated with operating
a school.
VII. Improving the Quality of and Access to
Educational Services
How can advocates and others interested in ensuring
that incarcerated young people receive appropriate services respond
to these problems? The difficulties associated with providing special
education services to disabled young people in juvenile corrections
are intertwined with the quality of educational services in juvenile
corrections in general. Comprehensive federal statutes for special
education services and corresponding state statutes and regulations
have not ensured appropriate education for the estimated 30 to 50
percent of all incarcerated young people with disabilities. Typically,
education services in juvenile corrections, whether operated by
the juvenile corrections agency, the state department of education,
or a local school district, are a low priority for many correctional
administrators. To provide education services for young people with
disabilities, juvenile corrections programs must meet minimum standards
associated with public school programs. Under current arrangements,
the infrastructure needed to support quality education programs
is missing in many jurisdictions. Correctional education programs,
with some exceptions, often do not have the autonomy, administrative
arrangements, and fiscal resources necessary to provide quality
education to incarcerated young people. To strengthen programs and
ensure that eligible young people receive special education services,
correctional education programs need to: (1) develop stronger ties
to public school programs; (2) have fiscal and administrative autonomy
from the correctional agency; and (3) meet standards associated
with public school programs.
A. Stronger Links Between Public School Programs and Correctional
Programs
A complaint raised in many of the lawsuits
listed in Table 1 was the inability of the correctional education
program to obtain prior school records for their students. Correctional
education programs often wait months to receive grades, test scores,
Individualized Education Programs ("IEPs"), and other information
that would assist educators in juvenile corrections to provide appropriate
services. This information, routinely passed between public school
districts, is often delayed when the request for records originates
in a correctional facility. Hiding behind the "rhetoric of rights,"
public schools decline to send materials to a correctional facility
without parental signature or notification. Compounding matters is
that many incarcerated young people had quite mobile school careers
and, in some instances, were truant or expelled from school for a
period of time before their incarceration. Even in those states where
special school districts for correctional education exist, such as
Connecticut (Smith v. Wheaton39) and South Carolina (Alexander v.
Boyd40), obtaining prior school records has been a problem. Creating
stronger links between correctional programs and the public school
could involve having local school districts operate correctional education
programs for juvenile corrections. In Florida (Bobby M. v. Childs41),
a local school district operates the state's two secure confinement
facilities for juveniles. Another way to forge stronger links would
be to have the juvenile corrections agencies assess average per pupil
costs for each student. Juvenile correctional agencies could bill
local school districts for the time that young people are in custody
or confinement. While this remedy would certainly be unpopular with
local education agencies, this arrangement, in addition to promoting
exchange of student records, would create incentives for local school
districts to more adequately serve young people at risk for drop-out,
school failure, suspension, and expulsion.42
B. Fiscal and Administrative Autonomy
Without budget and administrative
autonomy, decisions about use of educational resources, assignment
of staff, and curriculum are made in response to noneducational concerns.
Educational administrators in juvenile correctional settings need
to cooperate with institutional and agency administrators, treatment,
security, and directcare staff. However, decisions about education
programs need to be driven by professional standards, state guidelines
for public school programs, and youth's needs. Without fiscal autonomy,
education administrators cannot develop long-range plans, incorporate
new instructional technology, or respond to the demands of the changing
job market that young people will face. Fiscal autonomy can be achieved
through establishing a per pupil cost in juvenile corrections upon
which annual budget allocations are based. In the correctional budget,
education should have an independent cost center or budget category.
If correctional facilities contract with local school districts for
services, minimal per pupil costs could be charged to the correctional
agency based on an average quarterly count of students in the correctional
education program.
C. Professional Standards
One factor hampering the development of more effective
correctional education programs and, subsequently, appropriate education
services to young people with disabilities, is the lack of widely
adopted professional standards for correctional education programs.
The Correctional Education Association has developed standards for
correctional education programs in juvenile and adult facilities,
but these standards are broad and not widely adopted. Several correctional
programs have sought accreditation from professional associations
and colleges. This is a promising avenue for improving services.
Los Angeles County Court and Community Schools, serving more than
5,000 adjudicated young people in community-based and correctional
facilities, achieved accreditation during the 1980's. The process
requires basic minimum standards for correctional school programs,
including ample space, an articulated curriculum, professional development,
and adequate compensation for staff. As a result of litigation,
juvenile correction programs in Arizona (Johnson v. Upchurch43)
and Delaware (John A. v. Castle44) are in the process of obtaining
accreditation from professional associations in their areas.
VIII. Recommendations
Improving educational services for young people
with disabilities in correctional facilities will require a multifaceted
approach that involves state and local administrators of correctional
facilities and programs, advocates for children, and correctional
educators. Coordinated efforts by federal agencies concerned with
education and juvenile justice can provide leadership and expertise
to states and local jurisdictions as they attempt to improve their
programs.45 A first step in the process of correctional education
reform would be requiring minimum standards for educational programs
in juvenile detention and confinement facilities that approximate
those in public school programs. Federal agencies could propose
incentives for states and local jurisdictions that achieve and maintain
minimum standards for the operation of correctional educational
programs.46 Agencies could develop a pilot program that involves
technical assistance and support as states apply for and meet the
accreditation standards of professional associations such as the
Middle States Association of Schools and Colleges.47 Over time,
the Office of Juvenile Justice and Deliquency Prevention of the
U.S. Department of Education and other federal agencies could provide
preferential treatment in grant competitions to agencies whose educational
programs are accredited or have applied for accreditation.
IX. Conclusion
The record suggests that advocates for incarcerated
youths have been very successful in using IDEA to obtain appropriate
education services. Class actions are one way to obtain appropriate
services and improve the conditions of confinement for young people
in juvenile corrections.48 However, lengthy procedural delays can
cause years between the filing of a complaint and the settlement
of a case. An alternative strategy, available to parents, guardians,
advocates, and others concerned about the educational welfare of
incarcerated youth, is to press correctional institutions for appropriate
services for young people on an individual basis. This process can
begin with a careful examination of a young person's prior school
history. A record of school failure, unexcused absences, chronic
disciplinary problems, and grade retention may be associated with
a disabling condition that has not been detected. Vision or auditory
problems, learning disabilities, and emotional disorders can all
contribute to poor school performance and school failure. Family
mobility, other family concerns, and poverty can cause schools to
overlook serious learning problems. If a parent, guardian, or advocate
suspects that a disabling condition may contribute to a child or
adolescent's poor educational performance, he or she should make
a referral to the education program of the correctional facilities
for an evaluation.49 Detained and confined youth with disabilities
in correctional facilities have very specific rights to educational
services. Programs in juvenile corrections should promote the academic
and social competence of their students and ensure that they reenter
their communities better prepared to assume roles as students, workers
and citizens.
Table 1.
Recent Class Action Litigation Involving
Educational Claims for Students with Disabilities in Juvenile Correctional
Facilities
|
Case Name,
Case Number,
Court of Origin
|
Date
Filed
|
Status
|
Institutions
|
Right to
Treatment
|
Disciplinary
Practices
|
General
Conditions
|
IDEA1/
5041 Claims
|
A. C. v. McDonnell
CIV-95 WY 1838
U.S. Dist. Ct., Dist. of CO |
7/21/95 |
No
Settlement
|
Confinement
and
Evaluation
|
|
|
|
IDEA
|
Alexander S. v. Boyd
3:90-3062-17,
U.S. Dist. Ct. of SC |
12/28/90 |
Trial 1994;
Court Ruling
1/25/95
|
Detention
and
Confinement
|
X
|
|
X
|
Both
|
Andre H. v. Sobol
84 Cir. 3114, U.S. Dist.
Ct. of S. Dist. of NY |
5/84 |
Stipulation & Order
of Settlement
9/90
|
Detention
|
|
|
|
Both
|
Anthony v
C. v. Pima Co,
CIV-82-501-TUC-ACM
U.S. Dist. Ct. for Dist. of
AZ |
8/82 |
Stipulation &
Agreement
1/20/85
|
Detention
|
X
|
X
|
X
|
Both
|
Bobby M. v. Childs
TCA-83-7003, U.S. Dist.
Ct. of No. Dist. of FL |
1/83 |
Settlement
Agreement
5/7/87
|
Confinement
|
X
|
X
|
X
|
Both
|
D.B. v. Casev
CA-91-6463, U.S. Dist. Ct.
for E. Dist. of PA |
10/16/91 |
Stipulation
of Settlement
3/17/93
|
Confinement
|
X
|
X
|
X
|
Both
|
Doe v. Fati
Civ No. 93-1227, U.S. Dist.
Ct. for E. Dist. of LA |
4/13/93 |
Partial Settlement
on education issues
3/95
|
Detention
and
Confinement
|
X
|
|
X
|
Both
|
Doe v. Younger
91-187, U.S. Dist. Ct.
for E. Dist. of KY |
11/21/91 |
Trial 4/96;Court
ruling pending
|
Detention
|
X
|
|
X
|
Both
|
Doe v. Napper
1-93-cv-642-JEC,
U.S. Dist. Ct. of No. Dist.
of GA |
3/26/93 |
Complaint Filed
|
Detention
|
X
|
|
X
|
IDEA
|
E.R. v. McDonnell
CIV 94-N-2816, U.S.
Dist. Ct., Dist. of CO |
12/8/94 |
Settlement
Agreement and
Order 5/95
|
Detention
|
X
|
X
|
X
|
IDEA
|
Earl P. v. Hornbeck
N-85-2973, U.S. Dist. Ct.
for Dist. of MD |
7/85 |
Consent Decree
10/16/87
|
All State
Facilities
|
|
|
|
IDEA
|
G.C. v. Coler
87-6220, U.S. Dist. Ct. of
S.D. of FL |
11/87 |
Court Order of
Dismissal on
education issues.
Consent decree on
balance of issues
2/89.
|
Detention
|
|
|
X
|
Both
|
Gary H. v. Hegstrom
77-1039-BU, U.S. Dist. Ct.
for Dist. of OR |
12/23/77 |
Opinion in response
to motion for
injunction 12/17/84
|
Detention and Confinement
|
X
|
X
|
X
|
Both
|
Horton v. Williams
C94-5428 RJB
U.S. Dist. Ct., W.D. of WA |
8/94 |
Partial Settlement
9/11/95
|
Confinement
|
X
|
X
|
X
|
IDEA
|
James v. Jones
C-89-0139-P(H), U.S. Dist,
Ct. for W. Dist. of KY |
1/7/93 |
Amended
Complaint Filed
|
Detention
and
Confinement
|
X
|
X
|
X
|
|
James 0. v. Marston
C-86-6-L, U.S. Dist. Ct.
Dist. of NH |
1/86 |
Consent Decree
5/91
|
Detention
and
Confinement
|
|
|
|
IDEA
|
Jerry M. v. DC
1519-85 IFP
Superior Ct. of DC |
4/85 |
Consent Decree
7/10/86
|
Detention
and
Confinement
|
X
|
|
X
|
IDEA
|
John A. v. Castle,
CA-90-200-RRM, U.S.
Dist. Ct. for Dist. of DE |
5/1/90 |
Consent Decree
11/93
|
Detention
and
Confinement
|
X
|
X
|
X
|
Both
|
Johnson v. Upchurch
CIV-86-195, U.S. Dist.
Ct. for Dist. of AZ |
8/86 |
Consent Decree
5/93
|
Confinement
|
|
X
|
X
|
IDEA
|
Milonas v. Williams
C-78-0352, U.S. Dist. Ct. of
UT |
8/78 |
Consent Decree
3/80
|
Confinement
|
|
X
|
X
|
Both
|
Shaw v. San Francisco
CIV 915763, Sup. Ct. of
CA, San Francisco |
2/90 |
Agreement
10/4/93
|
Detention
|
|
|
X
|
IDEA
|
Smith v. Wheaton
H-87-190, U.S. Dist. Ct. for
Dist. of CT |
11/87 |
No Settlement,
Trial Pending
|
Confinement
|
|
|
|
Both
|
T1. v. Delia
90-2-16125-1
Sup. Ct. of WA for King
Co. |
8/10/90 |
Partial Settlement 11/26/90;
Stipulation
and Consent
Judgement 10/27/93
|
Detention
and
Confinement
|
X
|
|
X
|
|
United States v. Puerto
Rico
CIV-94-2080(ccc), U.S.
Dist. Ct., Dist. of Puerto
Rico |
8/10/94 |
Consent Order
10/6/94,
Final agreement
pending
|
Detention
and
Confinement
|
X
|
X
|
X
|
IDEA
|
W. C. v. Aiken
IP 90 040 C
U.S. Dist. Ct. S. Dist. of IN |
1/16/90 |
Consent Decree
9/91
|
Confinement
|
X
|
|
X
|
IDEA
|
1 IDEA - Indwiduals with
Disabilities Education Act
2 Section 504 of the Vocational Rehabilitation
Act of 1973 is civil rights law for persons with disabilities. It
prohibits discrimination against persons with disabilities by programs
receiving Federal financial assistance. Although Section 504 defines
handicaps or disabilities more broadly than IDEA, education regulations
implementing Section 5(W 134 CFR 104 ct seq.1 are very similar to
those for IDEA.
3 Court found for plaintiffs on
most issues raised in the complaint,
4 Educational claims based on
Nth and 14th Amendments of the U.S. Constitution.
5 Educational claims
based on due process clause of 14th Amendment of U.S. Constitution
Endnotes
The authors would like to thank the staff at the Youth
Law Center, the National Center for Youth Law, Columbia Legal Services,
and the Center for Law and Education for their assistance in tracking
litigation and obtaining documents. An earlier version of this paper
was developed with support from the Office of Juvenile Justice and
Delinquency Prevention of the U.S. Department of Education and the
American Bar Association and published in Advocacy Strategies: Resources
for Improving Conditions of Confinement for Detained and Committed
Youth by the American Bar Association in 1996.
* Peter Leone is a professor in the Department of Special
Education, College of Education at the University of Maryland, College Park.
He has been actively involved in teacher preparation, research, and advocacy
in correctional settings for the past twelve years. Professor Leone has worked
for the Office of the Monitor of the Jerry M. Consent Decree and has monitored
juvenile justice settlement agreements in New York and Pennsylvania.
He currently chairs a committee of three consultants overseeing the
implementation of the Johnson v. Upchurch Consent Decree in the Arizona
Department of Juvenile Corrections.
** Sheri Meisel is Acting Director
of the Center for the Study of Troubling Behavior at the University
of Maryland, College Park, and a consultant in the area of special
education in the juvenile justice system. She taught youths with emotional
and behavioral disorders in the public schools, and in the community-based
day and residential treatment centers for over 10 years. After working
in school administration, teacher training, and juvenile corrections,
she received her doctorate in special education from the University
of Maryland in 1994.
Reprinted with permission of William S. Hein & Co., Inc.,
Children's Legal Rights Journal, 1997, v. 17 (1)., (pp. 1-12).
1. U.S. DEPT. OF JUSTICE, OFFICE OF JUVENILE
JUSTICE AND DELINQUENCEY PREVENTION, Juveniles Taken into Custody;
Fiscal Year 1990 Report (Sept., 1991). Data reported are based on
one-day count, February 15, 1989.
2. Donna Murphy, The Prevalence of Handicapping Conditions Among Juvenile Delinquents, 7:3 REMEDIAL
AND SPECIAL EDUCATION 7-17(1986), for a review of studies of disabilities
among adjudicated youths.
3. R.B. Rutherford, C.M. Nelson, & B.I.
Wolford, Special Education in the Most Restrictive Environment:
Correctional/Special Education, 19 J. SPECIAL EDUCATION 59-71; Leone, P. E.,
A Review of Special Education Programming at Catalina Mountain Juvenile
Institution (November 1988), report submitted to U.S. District Court,
District of Arizona, (Johnson v. Upchurch, No. 86-195 (D. Ariz., filed
August, 1986); Leone, P. E, Evaluation of Educational and Vocational
Services at Cedar Knoll and Oak Hill Youth Centers(December 1990),
report submitted to the Office of the Monitor, Jerry M. v. D.C., No.
1519-85 (D.C., filed April, 1985); and P. E. Leone, Education Services
for Youth with Disabilities in a State-Operated Juvenile Correctional
System: Case Study and Analysis, 28 J. SPECIAL EDUCATION 43-58 (1994).
4. P.E. Leone, T. Price,& R.K. Vitolo, Appropriate Education for All
Incarcerated Youth: Meeting the Spirit of P.L. 94-142 in Youth Detention
Facilities, 7:4 REMEDIAL AND SPECIAL EDUCATION 9-14 (1986).
5. A. Morris, THE CONSTITUTION AND AMERICAN EDUCATION (1974).
6. IDEA, 20
U.S.C. 33, the Education for All Handicapped Children's Act, was passed
in 1975 and went into effect in 1977. Among other things and as a
condition of receiving federal funds, states guarantee that all children
with disabilities will receive a free appropriate public education
in the least restrictive environment. Additionally, IDEA provides
a number of procedural rights to parents and requires that schools
use nondiscriminatory procedures to assess children suspected of having
a disability. For a detailed discussion of the original law and the
forces that precipitated its passage, see Levine & Wexler, PL 94-142:
AN ACT OF CONGRESS (1981).
7. All states and the District of Columbia
currently receive funding under IDEA. At one time, New Mexico declined
to participate in this program.
8. 20 U.S.C. 33 § 1412.
9. Id.
10. 20 U.S. C. 33 § 1415.
11. The reauthorization of the Education of
the Handicapped Act CEHA") in 1990 renamed the law the Individuals
with Disabilities Education Act ("IDEA"). The age of eligibility varies
slightly from state to state.
12. 20 U.S.C. 33 ¤ 1415.
13. The Handicapped
Children's Protection Act of 1986 was passed in response to a 6-3
Supreme Court decision in Smith v. Robinson, 468 U.S. 992 (1984),
that denied reimbursement of attorney's fees to parents who sued under
IDEA (at that time, The Education of All Handicapped Children Act
of 1975). For additional information about this law, see J.E. West,
The Handicapped Children's Protection Act: A Case Study of Policy
Formation(1988) (unpublished Ph.D. dissertation, Special Education,
University of Maryland (College Park). 14. An exception to the trend
was Timothy W. et al. v. Rochester et al., 875 F.2d 954 (1st Cir.
1989), reversing a U.S. District Court decision and affirming that
Congress did not intend to exclude from the protection of IDEA, students
that the school district did not consider educable. For a discussion
of special education legislation and litigation, see Rothstein, SPECIAL
EDUCATION LAW (1990).
15. See Board of Education v. Rowley, 458 U.S. 176(1982).
16. See Irving Independent School District v. Tatro, 468
U.S. 883 (1984).
17. See Smith v. Robinson, 468 U.S. 992 (1984). The
passage of the Handicapped Children's Protection Act of 1986 (P.L.
99-372) effectively nullified this decision.
18. See School Board
of Nassau County v. Arline, 480 U.S. 273 (1987).
19. See Honig v.
Doe, 484 U.S. 305 (1988).
20. Pat Perryman, Sam DiGangi, & Robert
Rutherford, Recidivism of Handicapped and Nonhandicapped Juvenile
Offenders: An Exploratory Analysis (November 1989), paper presented
at the Learning Handicapped Offender Conference: Pittsburgh, PA; Nelson
& Rutherford, Impact of the Correctional Special Education Training
(C /SET) Project on Correctional Special Education (September 1989),
paper presented at the CEC/CCBD National Topical Conference on Behavioral
Disorder: Charlotte, NC; and Rutherford, C. Michael Nelson, & Bruce
Wolford, Special Education in the Most Restrictive Environment" Correctional/Special Education, 19 J. SPECIAL EDUCATION 59-71 (1985).
21. Pamela
Casey and Ingo Keilitz, Estimating the Prevalence of Learning Disabled
and Mentally Retarded Juvenile Offenders: A Meta-Analysis, in UNDERSTANDING
TROUBLED AND TROUBLING YOUTH 82-101 (P.E. Leone ed. 1990). Casey and
Keilitz reported that a sufficient number of studies of young people
with emotional disabilities was not available to conduct an metanalysis
for that population.
22. Id. at 89-94.
23. Id.
24. See R.K. Otto,
et al, Prevalence of Mental Disorders Among Youth in the Juvenile
Justice System, in RESPONDING TO THE MENTAL HEALTH NEEDS OF YOUTH
IN THE JUVENILE JUSTICE SYSTEM (J.J. Cocozza ed. 1992).
25. According
to the U.S. DEPARTMENT OF EDUCATION'S 15TH ANNUAL REPORT TO CONGRESS
ON IM PLEMENTATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION
ACT (1993), the percentage of school-aged children identified as disabled
during the 1991-92 school year was 10.1%.
26. Section 504 of the Vocational
Rehabilitation Act of 1973, 34 C.F.R. ¤104 et seq., is civil rights
legislation for persons with disabilities. It prohibits discrimination
against persons with disabilities by programs receiving federal financial
assistance. Although Section 504 defines handicaps or disabilities
more broadly than IDEA, regulations implementing Section 504 for education
purpose are very similar to those for IDEA.
27. Andre H. v. Sobol,
No. 84-3114 (S.D.N.Y., filed May, 1984).
28. Id.
29. Id.
30. Johnson
v. Upchurch, No. 86-195 (D. Ariz., filed August, 1986).
31. Id.
32.
For a discussion of the Johnson v. Upchurch consent decree, and juvenile
justice reform in Arizona, see 14:2 YOUTH L. NEWS (Mar.-Apr. 1993).
33. Smith v. Wheaton, No. 87-190 (D. Conn., filed November, 1987).
34. Id.
35. Johnson v. Upchurch, No. 86-195 (D. Ariz., filed August
1986).
36. For a discussion of reform in juvenile detention, see M.J.
Dale & C. Sanniti, Litigation as an Instrument for Change in Juvenile
Detention: A Case Study, 39:1 CRIME AND DELINQUENCY 49-67 (1993).
37. Juvenile corrections were part of the adult correctional system
before the juvenile agency was created. Initially, the new state agency
was called the Arizona Department of Youth Treatment and Rehabilitation.
38. See Commonwealth of Virginia Dept. of Ed. v. Riley, 86 F.3d 1337
(4th Cir. 1996) The U.S. Department of Education threatened to withhold
Virginia's FY 94 and FY 95 allocation under IDEA for permitting local
school districts to deprive students with disabilities all education
services when they are expelled or suspended for behavior unrelated
to their disability. The U.S. Court of Appeals recently upheld a Department
of Education hearing decision that permitted withholding Virginia's
IDEA funds.
39. Smith v. Wheaton, No. 87-190 (D. Conn., filed November,
1987).
40. Alexander S. v. Boyd, No. 90-3062 (D.S.C., filed December
28, 1990).
41. Bobby M. v. Childs, No. 83-7003 (D. Fla., filed January,
1983). 12
42. Ohio requires local school districts to assume part
of the costs of educating incarcerated youth from their home districts
through a School Foundation Program. For a full discussion of the
funding mechanism, see OHIO DEPT. OF YOUTH SERVICES, Special Education
Resources and Funding; and OHIO DEPT. OF EDUCATION, Ohio Law for State
Support of Public Schools (1994-95).
43. Johnson v. Upchurch, No.
86-195 (D. Ariz., filed August, 1986).
44. John A. v. Castle, No.
90-200 (D. Del., filed May 1, 1990).
45. In several states, including
Delaware and Arizona, juvenile justice reforms and improving correctional
education services were delayed for political reasons unrelated to
the operation of correctional programs. Delaying the reforms were
costly to students who failed to receive education services to which
they were entitled and to taxpayers as states were required to pay
attorneys' fees when plaintiffs prevailed in litigation.
46. Providing
special education services to large numbers of incarcerated young
people in correction facilities is an administrative challenge. In
addition to meeting due process requirements of IDEA, correctional
education programs are required to retrieve prior school records for
young people with disabilities, and to develop and/or modify individualized
education programs for them. An alternative approach which might be
attempted on a pilot basis, would be one in which all incarcerated
young people in juvenile corrections are guaranteed an individualized
education program. This does not imply tutorial services to all incarcerated
young people, but rather, that instructional decisions and services
are based on each young person's individual needs.
47. The Commission
on Secondary Schools of the Middle States Association of Colleges
and Schools has materials on the evaluation and accreditation process.
The Middle States Association is located at 3624 Market Street, Philadelphia,
PA 19104.
48. For a discussion of the process of settling class action litigation
in juvenile detention, see M.J. Dale, et al, supra note 36 at
49-67.
49. At the Juvenile Law Clinic at the District of Columbia
School of Law, a special education advocacy project attempts to improve
outcomes for juvenile clients in delinquency proceedings by linking
underlying educational problems of young people to delinquency proceedings.
The Clinic trains law students to work proactively with juvenile clients
by posing alternative treatments and strategies related to special
education needs of the young person. The Clinic also trains attorneys
in the community who represent juvenile clients in delinquency proceedings
to use special education law proactively. See J. B. Tulman, The Best
Defense is a Good Offense: Incorporating Special Education Law into
Delinquency Representation in the Juvenile Law Clinic, 42 J. URB.
& CONTEMP. L. 223-247 (1992).
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