Introduction
Nationally, youth and adults confined in institutions have an astonishingly low level of functioning with respect to basic skills needed for living in the community:
About one third of prisoners are unable to perform such simple job-related tasks as locating an intersection on a street map, or identifying and entering basic information on an application. Another one-third are unable to perform slightly more difficult tasks such as writing an explanation of a billing error or entering information on an automobile maintenance form. Only about one in twenty can do things such as use a schedule to determine which bus to take. Young prisoners with disabilities are among the least likely to have the skills they need to hold a job. For them, education is probably the only opportunity they have to become productive members of society.70
Institutional education has a clear, positive effect in reducing recidivism and increasing postrelease success in employment and other life endeavors. For youth with disabilities, special education and related services provided through institutional schools are critically important to that success.
The provisions of IDEA cover all State and local juvenile and adult criminal corrections facilities.71 The only exclusion from the entitlement to a FAPE applies (to the extent that State law does not require special education and related services under part B to be provided to students with disabilities) to any youth ages 18 through 21 who, in his or her last educational placement prior to incarceration in an adult criminal corrections facility, was not actually identified as a child with a disability and did not have an IEP under part B.72
A facility failing to comply with IDEA may be challenged through administrative proceedings, individual lawsuits, or class-action civil-rights litigation. Over the years, court and administrative decisions have applied IDEA's protections to youth in juvenile detention centers and training schools and those in jails and prisons (Youth Law Center, 1999). Dozens of decisions, rulings, and consent decrees address a range of issues, including identification of youth with disabilities, access to educational records, evaluation, IEP development, service delivery, staff qualifications, and timelines for compliance with required components in the special education program (Puritz and Scali, 1998; Youth Law Center, 1999). Additional decisions address remedies such as compensatory education for failure to provide special education services to youth in institutions.73
Providing special educational services to youth in custody presents many challenges. Factors to be dealt with include length of stay, the facility's physical layout, and the need for heightened security. This section discusses a number of issues that often arise.
Identification of Youth With Disabilities in Institutional Settings
IDEA's child find obligation requires that all youth with disabilities be identified, located, and evaluated and that a practical method be implemented to determine whether eligible youth are receiving needed special education and related services. One way to meet this obligation is to have an efficient system in place to determine whether the youth has been previously identified as eligible. Routine screening when the youth is admitted to or enters the school program could reveal information about previous placements, special classes, and other indicators that the youth was in special education. Because it is important to obtain prior school records promptly, it may be helpful to identify a contact person at the LEA who can verify special education records. As noted previously, the 1997 IDEA amendments require LEA's to forward special education and disciplinary records.74
Facilities also must find youth with disabilities who have not been identified previously as eligible for special education. Intake staff, probation officers, and regular education staff should be trained to recognize students who may have disabilities and take immediate steps to initiate referral for evaluation. Because the evaluation process calls for parental consent, the referral is best initiated by parents. LEA's should assist parents in making written requests. However, nothing in Federal law prevents other individuals or agencies from making the initial request for evaluation of IDEA eligibility. Educators, probation officers, or attorneys should consider making the formal request if parents are unavailable or unwilling.
This identification process must occur even in facilities such as detention centers, in which the typical length of stay may be only a few days or weeks. In reality, some youth in short-term facilities spend much longer periods in custody (e.g., awaiting placement or trial in adult criminal court), and many will return to the facility in connection with probation violations or future cases. In addition, useful information gathered at one facility may be shared with subsequent placements.
Evaluation
Facilities and agencies that have custody of a youth for only a short time are not exempt from the mandate to begin the evaluation process, even though the complete evaluation may take several weeks. If a youth is moved before the evaluation is complete, the school should forward the information to the student's next educational placement.
A common problem, particularly for short-term facilities, is that the education program may have insufficient staffing or staff without the requisite qualifications to conduct eligibility evaluations.75 In such cases, the facility should make arrangements through the LEA serving its youth to ensure that full evaluations by qualified personnel are provided. The facility also must ensure that requests for reevaluation by parents and teachers are honored.76
Interim Services and Implementation of the IEP
When a facility confines a youth who has an IEP, it must implement the existing IEP or hold a new IEP meeting in accordance with Federal law,77 just as a school district would have to implement the IEP of a special education student transferring from another district. If the IEP team elects to modify the IEP, it must provide interim services comparable to those called for in the existing IEP until the new IEP is developed. Federal law requires IEP's to be implemented as soon as possible after initial IEP or revision meetings.78 Many States have set time limits on the maximum duration of interim services.79
In some cases, juvenile facilities confine youth who have had IEP's in the past but who have no current IEP or who were not in school immediately prior to incarceration. Federal law does not specifically address the length of time after which IEP's are no longer required to be implemented. However, the existence of a previous IEP is strong evidence that the youth has a disability and is eligible for services. In practice, officials should implement the previous IEP unless they can document persuasive reasons for not doing so.80 If the IEP is no longer appropriate, a new program should be developed as soon as possible.81
Several of the IEP requirements called for in the 1997 IDEA amendments have particular significance for youth in institutional settings. The requirements for positive behavioral interventions may overlap with institutional case plans. Accordingly, educational staff should coordinate goals and objectives with institutional staff to ensure consistent practice and enable institutional staff to recognize and deal effectively with disability-related behavior.
The inclusion of transition service needs in IEP's beginning at least by age 14 (or younger if determined appropriate) should be closely coordinated with institutional planning for parole or release of juvenile offenders. When appropriate, planned services should include assistance in obtaining full-time employment or enrolling in college (Leone, Rutherford, and Nelson, 1991). As part of transition planning, it is advisable to establish contact with local community programs. Local school districts often are reluctant to take students back after out-of-district placements, so early contact is critical for effective postrelease programs. At least one court has confirmed that institutions must ensure that students' special education needs can be met and that current IEP's are implemented as soon as possible in their next placement.82
In addition, the 1997 IDEA amendments provide that youth with disabilities are entitled to extended school year services if the child's IEP team determines they are needed to ensure FAPE. The youth's IEP team determines whether extended school year services are needed on an individual basis.83 Extended school year services may be an important right for youth with disabilities who are incarcerated during the summer.
Integration With Nondisabled Students
The Federal requirement that special education students be educated, to the extent appropriate, with students who are not disabled applies in the juvenile institutional context.84 Institutions may not provide a generic special education program and force all youth with disabilities to attend. Students may be placed in special education classes only as specifically called for in each IEP.85 As in the outside community, youth must be served with nondisabled students to the maximum extent appropriate.
Discriminatory Disincentives
Facilities must not allow discriminatory disincentives to participation in special education services.86 Special education programs should not interfere with programs in which youth with disabilities may otherwise participate, including extracurricular activities. Detention staff, for example, may not require youth to choose between special education services and other desirable programs, such as vocational classes. Similarly, a disability may not preclude a student's placement in a less secure facility, such as a camp, or keep the student from being granted a furlough.
Due Process Protections for Confined Youth
The due process protections embodied in special education law are particularly important for youth in institutional care. At the time of confinement, youth should receive a handbook that sets forth their rights and affirms that officials will not discriminate on the basis of disability.87 Facilities should also inform youth and their parents (or surrogate parents) of their rights under IDEA. Documentation of all actions taken to provide special education to an individual student is essential.
The due process protections outlined in special education law must remain distinct from any institutional grievance procedure. It is impermissible for officials to require students or parents to fulfill steps not called for by IDEA in order to challenge school officials' decisions. In meeting the due process requirements, facilities must be careful to meet mandated timelines because delays may undermine the purpose for which the timelines were established. Especially in short-term placements, officials should establish expedited procedures to quickly resolve challenges to agency decisions by the youth or parent.
Officials must include parents in the IEP process consistent with IDEA. Unless a court expressly limits their rights, parents of youth in institutional settings have all the rights that are accorded to parents of youth who are not in out-of-home placements.88 For some placements, especially prisons, distance is the biggest obstacle to parental involvement. Distance must not prevent a parent from participation. If a youth is placed far from his or her parents' residence, teleconferencing may be essential. The burden is on the facility to keep all parties—especially parents—involved in the IEP process.
In some cases, surrogate parents could be appointed as an important part of a youth's due process protection. Surrogate parents have all the rights regarding education that the parents have. In institutional settings, as in the community, the surrogate parent must be independent and have no conflict of interest. For example, in a juvenile detention center, the surrogate parent may not be a probation department employee.89
Special Education in Lockdown and Other Restricted Settings
When youth with disabilities are removed to lockdown units or other restricted settings, facilities must still provide special education services required by the IEP. While the 1997 IDEA amendments provide for modification of IEP's of students with disabilities incarcerated in adult criminal corrections facilities if there is a "bona fide security or compelling penological interest,"90 no such exception exists for juvenile facilities. Accordingly, the normal rules for implementing and modifying IEP's would seem to apply. If misbehavior is school related, placement in lockdown or other restricted settings where youth with disabilities are unable to attend the regular institutional school may constitute a change of placement. A change of placement triggers additional disciplinary procedural safeguards, including review of behavioral intervention plans, functional behavioral assessments, manifestation determinations, and time limits on exclusion. As in noninstitutional settings, students and parents have the right to challenge changes in placement or modifications to their IEP's.
The practical difficulties in providing services to youth in lockdown and restricted settings should prompt institutional and educational administrators to work to reduce the length of time spent in such settings. To reduce the need for lockdown, institutional educators also should pay close attention to behavior intervention strategies when developing the initial IEP. Finally, staff development should include training institutional staff on IDEA mandates and on problems youth with disabilities may experience in institutional settings.
In many ways, behavior intervention prescribed through IDEA's mandates overlaps with the mission of the greater juvenile institution to intervene in and prevent inappropriate behavior. Institutional staff and educators should work together to meet the behavioral needs of incarcerated youth with disabilities.
