By: Jennifer Laskin, MS, JD
EDUCATION, INCARCERATION & HOME
Educated While Incarcerated- How Can Federal Law Help Youth Reenter Their Home Educational Community and Experience Success?
In 2011 there were more than 60,000 young people detained in juvenile justice facilities on any given day. In 2012-13 over 16,000 of those youth received special education and related services under the Individuals with Disabilities Education Act (IDEA). According to the National Disability Rights Network more than 65 percent of youth in the justice system meet the criteria for a disability, not all students who qualify for IDEA services are identified and assessed prior to detention. Under the “Child Find doctrine” schools have a legal duty to make special and unique efforts to work with any student suspected of an educationally related disability under IDEA. There are ongoing and shifting challenges for schools to come into compliance with Child Find. In some communities Special Education students make up a large majority of the student population requiring a large portion of school resources.
The IDEA is a comprehensive, ‘wraparound” law mandating guidelines for educational assessment, parental notification/consent, school record transfers, and Individual Educational Plans (IEP). Once a student qualifies for Special Education services, a student’s IEP is developed may include academic, social, behavioral and post-education or workforce preparation goals and objectives. For students in the juvenile justice system, especially those over 16, the transitional plan is one of the most important, proactive and underutilized aspects of IEP planning and implementation. Often, transitional plans are written very generically using boilerplate language such as “practice job interview skills” or “create a resume.” A reason for this generality is a dire lack of culturally relevant, transformational, therapeutic and effective schools, community programs and public services.
English Language Learners (ELLs) are also entitled to educational rights, and students who do not speak English as their first language are woefully under serviced and under resourced in juvenile detention facilities. Under federal law ELLs are entitled to “equal and meaningful access” to a school district’s program. A school district must “take action” if programs fail to enable students to overcome language barriers and produce results. The bilingual education program must be: 1) based on sound educational theory, 2) be “implemented effectively with resources for personnel, instructional materials, and space, and 3) must be proven effective in overcoming language barriers/handicaps after a trial period.
PROTECTIONS EXTENDED TO DETAINED YOUTH UNDER IDEA
Transition services are clearly described and mandated via IDEA. The mandate is child-centered, strength- based, and contains a variety of community and school based options to provide services and programming extending to youth in secure detention. Protections and procedures for detained youth under the law include the following.
- A shared responsibility of non educational public agencies for the education of students with disabilities in correctional facilities.
- School records must be transferred in a timely fashion with efforts from both schools to request and transfer records quickly.
- Students also have the right to required assessments, observation, development and implementation of plans and strategies to assist students in preventing their behavior from interfering in his or her learning or the learning of others. 
- Students must be trained as their own advocates. Students participate with their IEP team but they should be encouraged to actively participate in the creation of a transition plan that truly reflects their skills, talents, and a reasonable/ productive program post-release.
- Under ESEA juvenile detention- based schools have a legal obligation to provide opportunity for meaningful and equal participation for ELL students.
- Agencies share the responsibility to act and overcome language barriers that impede equal participation in instructional programs.
Under the Elementary and Secondary Education Act (ESEA) and IDEA parental communication and notification is mandated. However, when a child is deemed in detention or custody, the parental rights may switch to the court.
Barriers to education post-detainment were well documented as early as 2003 by the Youth Law Center. This report describes the same issues in existence today.
BARRIERS TO IMPLEMENTATION – A Maryland Example
In the Prince George’s County Public School System a student transition from a residential or custodial placement back to the home school district is not simple. When a student is registered in a school located in a state institution or secure placement, educational records are requested and student is automatically “withdrawn” from their home school. Regardless of the student’s length of stay in custody, the parent or guardian is forced to go through a full school re-enrollment process upon return to the home school. This includes producing numerous documents such as student’s vaccination record, proof of residence, utility bills and picture ID.
Students who have failed classes required for graduation face an additional challenge. Making up lost high school credits in the Prince George’s County Public Schools self-funded “credit recovery” program is cost-prohibitive for many parents and guardians. Students who failed once or more classes required for graduation can “recover” the lost credit through after school or summer school classes. The fee is $225.00 per class. A 25% fee waiver is available for students on free and reduced lunch but many parents are not informed the waiver exists. Summer school costs $450.00 per class. Parents cannot pay the credit recovery fees and students realize they may never earn enough academic credits for graduation. Many students fail 9th grade two or three times and eventually leave school with no academic or workforce opportunities.
A FEW SUGGESTIONS TO STRENGTHEN FEDERAL COMPLIANCE FOR DETAINED YOUTH
- Create comprehensive lists of all local school-based services, community organizations, trade unions, professional associations or private business who will contribute to a “transition-network” for students. Disseminate information to Special Education teachers, Probation Officers and Juvenile Court staff. Lobby, advocate and do outreach.
- Coordinate “special programs to meet the unique needs of participating children and youth…” Prohibit charging fees for credit recovery and all academic related opportunities.
- Conduct student rights workshops. Encourage and develop self-advocacy skills for post-release programming and plans.
- Streamline and make it EASY for parents and students to re-register in school post-detention. For example, when a student is released from detention and is returning the their home school, they should have an updated transcript IN HAND and the school should accept the address listed with DJS Probation as the correct residence for student.
- Students who hold or earn a GED or high school diploma while in custody should be encouraged and trained to research and apply for community college, trade school and Pell grants while still in detention to develop educational goals upon release.
- Create a cadre of advocates who are certified teachers or committed volunteers with legal knowledge and classroom/education experience.
Federal law mandates all above recommendations.  In spite of the law, the same setbacks and obstacles persist for court-involved youth and the full attainment of their educational rights. Law and policy dictate remedies. However, the majority of available programs are failing our youth. A lack of stable housing and reliable transportation (both public and personal) are fundamental issues intricately woven into the educational challenges of incarcerated and formerly incarcerated youth. “Previous approaches to effectuate educational rights, including court-ordered remedies, have failed to account for circumstantial factors relating to the socio-economic conditions within particular school districts. State and federal policy-makers may need to adopt programs that integrate educational policy with housing and planning policy in order to protect and fulfill each child’s educational rights.” Solutions should be strategic in order to maximize collaborative, mutli-systemic transformation and outcomes.
 20 U.S.C. § 1412(a)(3).
 Casteneda v. Pickard, 781 F. 2d 456, (5th Cir. 1986).
 34 C.F.R. § 300.2 (b)(1)(iv).
 34 C.F.R. § 300.323 (g).
 34 C.F.R. § 300.324 (b)(2).
 34 C.F.R. § 300.321(b).
 20 U.S.C. § 1703 (f).
 20 U.S.C. § 6801-6871.
 YOUTH LAW CENTER, Getting Out Of The Red Zone- Youth From The Juvenile Justice And Child Welfare Systems Speaks Out About The Obstacles To Completing Their Education And What Could Help (October 2003), available at http://www.cclp.org/documents/Getting%20Out%20of%20the%20Red%20Zone.pdf.
 Elementary and Secondary Education Act (ESEA) Subpart 2 §1424(3).
 ESEA Subpart 2 §1421-1425.
 Juvenile Justice and Delinquency Prevention Act § 223(9)(A-S).
 Michael R. Hilton, Literacy, Poverty, and Brain Development: Toward a New, Place-Based Educational Intervention, 17 Rich. J.L. & Pub. Int. 623 (2014).