Coming Up Empty on the Other End of the School-to-Prison Pipeline: Overage, Under-credited, Unwanted

Secretary of Education Arne Duncan and Attorney General Eric Holder visit a juvenile detention center. U.S. Department of Education

Update, Dec. 2: The Education Department released new and updated guidance and resources surrounding the education of youth in juvenile justice facilities, including a new website focused on educating incarcerated students with disabilities. It followed an announcement by the Justice Department that the government will build a school system within the Federal Bureau of Prisons. 

The Trump administration could reverse all of these efforts. Education Secretary John King on a press call wouldn’t speculate on whether the incoming Trump administration would continue to work on these issues. King said he hoped officials at all levels of government would focus on students who don’t graduate from high school, and “one of the ways to tackle that challenge is to make sure that we have a smooth transition back from juvenile justice into the education system.”

Washington, D.C.

As a child growing up in the nation’s capital, in a tough neighborhood plagued by crime and drugs, Christopher liked school — mostly — except for math. His favorite subject was social studies.

“I guess that’s where my strength is at, stuff like that,” said the sturdy young man, dressed in dark sweatpants on a cool-for-August day, his work ID swinging on a lanyard around his neck.

Yet by the time he was 21, after several years in and out of various D.C. schools and juvenile detention facilities across the country, all he had to show for it was a single high school credit.

Christopher, whom The 74 agreed not to identify because of his past record as a juvenile offender and because his lawyers don’t want to be accused of trying to influence a pending court case, represents the fate of hundreds of thousands of young people when they come out of the much-discussed school-to-prison pipeline. Most, like Christopher, are black and male, many of them with classified learning disabilities.

The debate about the pipeline, which opens with harsh discipline being disproportionately meted out to students of color and those with disabilities, has mostly centered on what can be done at the starting point — in school — to divert these same students from ending up in jail.

That has led to conscious efforts to reduce suspensions and expulsions, create restorative justice programs that focus more on healing than punishment, and understand the implicit bias that educators, especially white ones, can bring when confronted with a black or brown student in trouble.

What’s less discussed is how to educate all the students, like Christopher, who have already been pushed through the pipeline and who now, in their late teens and early 20s, emerge after lost years and chronically uneven and sometimes grossly inadequate schooling while they were in custody.

(The 74: Visions of a School-to-Prison-Back-to-School Pipeline at TFA’s 25th Anniversary)

A 10-year study of youth incarcerated in Chicago found that being jailed led to a 39 percentage point drop in the likelihood a student would graduate and meant that student would be 41 percent more likely to return to jail as an adult. Young black men who fail to graduate from high school are more likely to be unemployed — 47 percent were unemployed in 2014, nearly double the national average for all dropouts. Black dropouts of both genders made less than $23,000 a year on average, less than any other racial group.

“On the whole, we’re really failing these kids,” said Kate Burdick, a staff attorney at the Juvenile Law Center in Philadelphia, a public-interest law firm that advocates for the rights of young people in Pennsylvania and across the country. The group played a central role in ending the “kids for cash” scandal in Pennsylvania in which a judge routinely found young people guilty of minor crimes and then sent them to two for-profit prisons, which paid him kickbacks in return.

James Forman Jr talks criminal justice and the crisis with the school to prison pipeline

The problem of the school-to-prison — and then back-to-school — pipeline is especially acute in D.C., where Christopher went through the system, because the city often sends its juvenile offenders to different states whose education programs for incarcerated youth aren’t always accepted by D.C. Public Schools. When they return, the district has few options for these older teens — many of them overage and under-credited.

That is one reason Christopher could be 21 and have accrued only one of the 24 credits needed for his high school diploma, despite having spent the better part of seven years in multiple facilities that were required by law to educate him.

Christopher describes his childhood as rough. His parents were both drug users. His father died when he was 14, and “that’s when stuff really got serious,” he said. He was hanging out in the streets, selling drugs and eventually “catching charges,” as he put it, ending up in the custody of the city’s Department of Youth Rehabilitation Services.

Christopher’s educational protections went even further because he has been diagnosed with auditory and language disabilities and an emotional disorder. The Individuals with Disabilities Education Act, a federal law first written in 1975, ensures that students with disabilities receive a free, appropriate public education. The services Christopher needed to learn should have followed him from the classroom to the the group homes and juvenile detention centers, but they did not.

“I was failing these educational programs because they didn’t take the time out to sit down with me, like a teacher should, and see where I’m at as far as my education,” he said.

Christopher bounced between facilities that had traditional classroom instruction and others that pushed for GED completion. Some places would group him with students profoundly more disabled than he was; others would drop him into prep programs for the high school equivalency test, where he was quickly overwhelmed.

“If you know my IQ level, why are you putting me in a class with kids whose IQ level is real high? I’m sitting there looking stupid,” he said. “What do you want me to do, copy off other students’ papers?”

Eventually, he managed to get back into school with the help of attorney Claire Blumenson and her colleagues at the School Justice Project, a small nonprofit that advocates for older students’ educational rights via the IDEA — but he has yet to receive his diploma.

You’re free — but not to go back to class

When they finish their sentences and return to school, students often face problems getting their credits transferred. Records are slow to move from one agency to another, and when they do, students housed out of state may find they were offered courses that their home district doesn’t accept.

‘It’s unfortunately something that plagues students, really, nationwide who are involved in the juvenile justice system’

Others may have gotten off track with a sequential career education degree. Still others might be just a few weeks shy of finishing a course when they have to leave a secure facility, forfeiting the time and effort they’ve already invested. Officials will often tell newly released students that their only option is an alternative school, that they can’t go back to the neighborhood school they had attended prior to their incarceration.

“It’s unfortunately something that plagues students, really, nationwide who are involved in the juvenile justice system,” said Burdick, of the law center.

Christopher tried, unsuccessfully, to re-enroll in several D.C. public schools after he was released from custody.

“I was getting straight-up denied,” he said.

Schools that would otherwise enroll him said that because of his classified learning needs and lack of credits, he’d have to go to class with much younger students. He called the idea of being 21 and sitting in a English or math class with 15-year-olds “sick.”

Ultimately, he was out of school for a year before he enrolled at a local private school that educates many formerly incarcerated, overage special education students. Blumenson and the School Justice Project fought the city to pay for tuition.

But he wasn’t able to finish his high school requirements before his eligibility under IDEA to continue his schooling — already extended another year beyond the usual age 22 — ran out. Negligence on the part of the city kept him from getting appropriate services while he was incarcerated, his attorneys argue, and for a period after he was released when he couldn’t get back into any school. They’re seeking additional funding from D.C. so that he can earn his diploma.

Like its adult prison population, the U.S. incarcerates far more young people than other countries. There is somewhere more than 300 jailed juveniles for every 100,000 young people in the U.S., according to some estimates, compared with 46.8 per 100,000 young people in the United Kingdom, and 24.9 per 100,000 in Australia.

Vast numbers of those teens have learning disabilities —  an average of 33 percent, according to one study, though some jurisdictions reported anywhere between 9 and 78 percent of their incarcerated youth population had special needs. (And that doesn’t count the students who likely do but haven’t been identified.)

Education of the incarcerated and the return to school of young people released from jail won’t substantially improve until Americans acknowledge (and address) not only that the criminal justice system incarcerates children with disabilities but that the U.S. jails all young people at such a dramatically higher rate than other countries, said Joe Tulman, a law professor at the University of the District of Columbia.

“When you see a system that’s so overused and so inundated with problems that aren’t properly addressed by that system, you’re not going to make that system work correctly until you right-size the system,” he said.

Tension inside juvenile facilities between education and detention is particularly visible for students with special needs, who may have disciplinary problems related to their disabilities.

“The education side of the house struggles to really get the secure-care side of the house to understand the obligations of both parties to work together to meet the special education needs of kids, and in particular to manage and devise behavior management plans that can work for all kids,” said David Domenici, executive director of the Center for Educational Excellence in Alternative Settings, which consults with juvenile justice systems to improve their education offerings.

The problem isn’t unknown to the federal officials who have the power to effect some change in the area. Congress took note when writing the Every Student Succeeds Act, the broad K-12 overhaul signed into law at the end of last year.

It requires states to have plans that ensure “the timely re-enrollment of each student who has been placed in the juvenile justice system” in a secondary school or alternative school, and that they can participate in “credit-bearing coursework” in high schools, career and technical education programs and postsecondary programs.

Executive branch agencies have tried, too.

The Education and Justice departments in December 2014 released a joint four-part guidance package aimed at improving education for all incarcerated students. In particular, a “Dear Colleague” letter reminded states that barring a handful of certain circumstances, “all IDEA protections apply to students with disabilities in correctional facilities.”

‘It’s just amazing how many people either have never seen it [a federal guideline document for educating incarcerated students], or just saw it and threw it in the trash’

Advocates say the guidance document helped raise attention to the issue, but actual visible progress in the corrections system hasn’t followed.

“It’s just amazing how many people either have never seen it, or just saw it and threw it in the trash,” said Domenici. The information is “not getting to the facility level.”

Education Department officials have acknowledged that failing; they’ve sent “self-assessment” documents to state correctional education offices and held a webinar for state education and juvenile justice officials. The department plans to release more information online this fall and is working with the Justice Department to reach out to additional state officials.

And they’re still trying other measures. The department in August released new guidance on appropriate behavior interventions for students with disabilities, which they emphasize applies to many special education students in juvenile justice facilities.

On the enforcement side, the Office of Civil Rights in August reached a settlement with San Bernardino County, California, that will require officials to better identify and serve students with disabilities — both in school and in jail.

“In providing strong and effective systems to identify, evaluate and serve students with disabilities, these schools can stop the cycle of revolving placements, place students with disabilities on a path to educational success, and remove them from the school-to-prison pipeline,” OCR Assistant Secretary Catherine Lhamon said in a press release announcing the settlement.

Nothing but time

The challenges in educating incarcerated students are large but not insurmountable, said Cami Anderson, who, before running the Newark schools, was the head of New York City’s District 79, which oversees alternative schools, including the East River Academy on Rikers Island and other placements for students involved in the criminal justice system.

She focused on rigorous literacy instruction, short-term units to quickly fill in areas where students were lacking knowledge, and what she called “school literacy,” skills such as reading a transcript and understanding graduation requirements.

“They have nothing but time, but then they would leave and they have no idea what they need to do,” Anderson said.

Cami Anderson

Photo: Getty Images

She worked to get sometimes-reluctant security personnel on board by persuading corrections leaders to include time on task and exam pass rates among the metrics used to evaluate prisons.

“It was a game-changer, because then everybody was obsessed with it,” she said.

Anderson and District 79 leaders also worked to combat common re-entry problems, ranging from credit transfer issues to re-enrollment delays to administrators who tried to immediately suspend students or funnel them into alternative school options.

“You had sort of covert ways that students were told they weren’t welcome back, and then you had just blatantly overt ways they were told they weren’t welcome back — all the time,” she said.

She worked to automatically re-enroll students in the city education department’s database the day after they left jail. That eliminated delays and made sure students who were tempted to drop out still had to go through the “legal or logistical or, frankly, moral safeguards” that exist to prevent students from leaving school.

For the other issues, leaders worked with advocacy groups on a “know your rights” campaign and a telephone assistance line for students, she said.

“We closed the loophole and we created accountability, but we also tried to accompany that with support for schools who legitimately felt they didn’t know how to support that young person,” Anderson said.

When school really is prison

The public education guarantees in most state constitutions have been interpreted to apply to young people in prison. And federal laws, in particular the Americans With Disabilities Act, the Rehabilitation Act of 1973, and the Individuals With Disabilities Education Act, protect the educational rights of young offenders with special needs.

But only eight states in a 2015 survey provided incarcerated students the same array of options, in terms of vocational training, traditional diplomas, GEDs and postsecondary tracks, that would be available if those young people remained in their community schools.

‘Fridays were considered “movie day,” which made it feel like the teachers were just there to babysit and watch us all day’

A 2015 report by young activists with the Juvenile Law Center detailed a host of subpar education options they encountered while incarcerated, from an insufficient number of textbooks to days of nothing but worksheets to teachers who slept through class.

Jaleel M., a student quoted in the report, said all students in the justice facility where he was housed did the same work, despite age differences. “We had to watch videos and complete worksheets in all my classes except English. Fridays were considered ‘movie day,’ which made it feel like the teachers were just there to babysit and watch us all day.”

When there’s conflict between the adults in charge of education and the corrections arm of a facility — as there often is — experts say security demands will trump educational needs.

Students are sometimes held out of class as punishment for violating prison rules. Other times, staffing constraints or other challenges keep students from getting to class on time; Lynette Tannis, author of Educating Incarcerated Youth, who has visited dozens of prison schools, said she has yet to see one where students routinely come to class on time.

Students are placed in groups that meet security needs — housing young people requiring more supervision apart from those who need less, for instance — and not in groups that would best facilitate schooling.

It’s also hard to attract and retain faculty to teach in such a difficult environment. Those who do often aren’t given extra training. Tannis said she never once encountered a teacher or principal in a juvenile justice school who received any specialized instruction for teaching in a jail or prison.

They might receive some safety briefings, she said, but most didn’t have any idea of what to expect, from the presence of guards in the classroom to locked doors to the students’ unique academic needs. She’s teaching the first class on the subject at the Harvard Graduate School of Education this fall.

With very few exceptions, incarcerated students should get all the same services they were receiving in school. In practice, though, that doesn’t always happen.

For instance, facility managers will change a special education student’s Individual Education Plan, which has to be updated when a student is incarcerated, based on what’s available.

“In many cases, it’s just very, sort of, cookie-cutter. All kids that come in get their IEPs amended to say the same thing — miraculously,” Domenici said.

Those identical plans end up having too few supports for some kids and too many for more advanced students.

Those uniform changes are also likely a violation of the law, said Burdick.

“A student needs what a student needs, and they need to figure out a way to provide it. There may be challenges with that, but there are ways around things,” she said. “They just need to be a little bit more creative.”

In Washington, D.C., ‘somebody needs to be responsible’

Although the same problems of credit transfer and IEP compliance plague young offenders in the District of Columbia, students there, including older but still IDEA-eligible students like Christopher, face some unique hurdles.

D.C., in keeping with the progressive bent of its citizens, is in many ways lenient on young offenders.

Unlike in some other states, which often try 16- and 17-year-olds as adults, young people in D.C. are usually tried in Family Court for all but the most serious offenses. Those who are convicted can have their records “set aside” for crimes (except murder) committed before age 22. (Judges can weigh past crimes when issuing sentences for subsequent convictions, but they aren’t publicly available.)

And thanks to work by Tulman and colleagues at the University of the District of Columbia’s Juvenile and Special Education Law Clinic over the past 20 years, more and more young people with special needs are being appointed special education attorneys in addition to their criminal defenders. The special education lawyers are paid via a provision in IDEA that allows judges to award attorneys’ fees to parents who successfully bring cases against a school district.

“The judges began to observe that bringing in appropriate educational advocacy often was helpful in getting to problems that people had incorrectly defined as delinquency,” Tulman said.

Despite the lenient trial and sentencing rules and increasing attention from special education attorneys, problems remain.

First, although the city has several options for housing young people, depending on the severity of their offenses and any underlying psychiatric or drug treatment needs, youth offenders can be sent to facilities out of state, sometimes as far away as Utah or Arizona.

More than a third of the young people under the Department of Youth Rehabilitation Services’ supervision, 35 percent, were housed in secure facilities outside D.C. in fiscal 2015, for an average stay of more than six months, according to a report the agency submitted to the city council. An additional 8 percent of youth were sent to out-of-state non-secure facilities, like group homes, for an average stay of closer to seven months, the same year. The Department of Youth Rehabilitation Services says about 10 percent of young people were sent outside D.C. this fiscal year.

Christopher, for instance, thinks he spent time in every group home in the city, along with several secure facilities in D.C. and neighboring states.

And although D.C. law requires education officials to evaluate and approve any private school placements for students with special education needs, it specifically exempts young people placed by the D.C. or federal courts.

“Because there’s no certificate of approval [required when the court places students], it basically means they’re their own ship floating around,” Blumenson said.

The courses offered at non-approved programs may or may not be the same as those required in D.C. — several of Blumenson’s clients housed at facilities in Maryland, for example, took a math course required by Maryland that doesn’t fit D.C. standards, she said. Or facilities may offer only electives, but no required classes, leaving students behind in core classes when they return to school.

Placement decisions are driven by a young offender’s “rehabilitative needs,” but the Department of Youth Rehabilitation Services considers all of the youth’s needs, including educational. “Certainly the agency is mindful of the unique needs of those youth with special education needs as defined in their IEPs,” Brenda Padavil, an agency spokeswoman, said via email.

D.C.’s Office of the State Superintendent of Education is responsible for the type of oversight that would occur in a state education department, including special education. Fred Lewis, an agency spokesman, said via email that the agency encourages juvenile corrections authorities to place young people in facilities that have been evaluated and received a certificate of approval.

Padavil said there is a relatively small number of approved facilities, and the Department of Youth Rehabilitation Services is “most concerned that it has a wide range of facilities to ensure that its youths’ comprehensive needs are met,” including residential or psychiatric treatments, so agency officials haven’t considered limiting placements only to approved locations.

There’s a mishmash of agencies responsible for educating young people while they’re incarcerated — the Office of the State Superintendent of Education, the Department of Youth Rehabilitation Services, and D.C. Public Schools. Officials in a recently revised memorandum of agreement tried to delineate which agency is responsible for young people depending on where they’re placed and to detail how to ease transition back into school.

The agreement has been updated since its inception in November 2012, when Blumenson, then working for the public defender’s office, filed a complaint to force the agencies to spell out which one is responsible for which aspect of an incarcerated student’s education.

The new standards, though, are still deficient, she said. At their heart, the agreement puts the Department of Youth Rehabilitation Services, a corrections agency, in charge of ensuring students get an appropriate education — except it isn’t responsible for where it places students. That’s how students like Christopher end up in unapproved schools that often don’t serve them well, and leave them without a way to appeal if they feel they’re placed somewhere that isn’t meeting their needs.

D.C. Public Schools is in theory responsible for ensuring appropriate educations for students placed out of state, but the organization doesn’t have any power over where the students are sent, and there are often record-keeping and other bureaucratic problems, Blumenson said.

“Then the clincher is [the memorandum] is not enforced, which is why we keep filing complaints to amend it,” she said.

Enforcement has been inadequate, and because it’s an inter-agency agreement as opposed to a law, agencies can bend the rules, she said: “Somebody needs to be responsible.”

(Representatives for the Department of Youth Rehabilitation Services and the Office of the State Superintendent of Education disputed the idea that the memorandum is insufficiently clear in delineating responsibility.)

D.C. residents convicted in adult court, meanwhile, are flat-out denied special education rights, even if they’re still under 18 or should remain eligible for services since they haven’t graduated high school and are under age 22.

Adult offenders in D.C. have been housed by the federal Bureau of Prisons since the mid-1990s, a cost-saving measure passed by Congress, which has a great deal of sway over Washington’s local affairs. The Education Department has since at least 2003 said IDEA, usually applied through states, doesn’t apply to the Bureau of Prisons.

Activists argue that a plain reading of the law shouldn’t exempt federal offenders — and besides, they say, young people housed there from D.C. were convicted of the equivalent of state crimes, not federal, so their rights should be maintained as they would be in a state prison system. (School Justice Project has filed a complaint against several federal agencies to try to enforce special education rights for D.C. residents in the Bureau of Prisons.)

“Although IDEA does not apply to the Bureau of Prisons, the Bureau addresses the needs of youthful offenders by extending our educational services to all inmates, regardless of age,” spokesman Justin Long said in an email.

Regarding its D.C. offenders, the agency works with city officials to obtain special education plans and relevant school records for students ages 18 to 24 who may have disabilities, Long said.

Regardless of where they were incarcerated, or at what age, problems pile up when young people return to D.C. and try to re-enroll in school.

The primary issue is that DCPS doesn’t accept partial credits. Students are moved frequently among facilities, so they often don’t get credit for the work they’ve done while they’re incarcerated. Young people who are sentenced to less than a school year, or who are moved by the Department of Youth Rehabilitation Services before a full year’s mark, are essentially working for no credit.

That leaves students in their late teens or early 20s with few credits, despite the work they’ve done, potentially over years, in and out of custody.

Non-traditional credit recovery options in D.C. for older students like Christopher are few, owing to insufficient appropriate staff and services for students with more intensive special education needs. Those students are sometimes forced to either sign away their rights to extra services they should be getting, in order to be in class with peers their own age, or wind up back in neighborhood schools with much younger students.

Michelle Lerner, a spokeswoman with D.C. Public Schools, said officials work with previously incarcerated students and their families to find the best option for students and to “accept credits that are transferrable and get them on track for graduation.”

“We work to ensure that we are supporting our overage, under-credited students, including those with an IEP,” she said via email. “We are revamping our alternative schools program to better serve students so no young person falls through the cracks and every one of our students is prepared for postsecondary education.”

Officials with the Office of the State Superintendent of Education said one of the primary goals of the agreement was to provide a smooth transition back to D.C. schools.

The needs of all overage, under-credited and disconnected youth are a priority for the agency, Lewis said, adding that several city agencies worked to establish a Re-engagement Center to serve as a “single door” for dropouts ages 16 to 24 to pursue completion of their diploma or GED.

‘You’re never too old to learn. You’re never too old to go to college. There’s always hope’

And, in light of the new requirement under ESSA that states provide timely re-enrollment, the agency is “currently assessing its procedures and considering new ones that together will satisfy this requirement,” Lewis said.

While city schools work on revamping their offerings, Christopher remains out of school, just a few credits shy of earning his degree.

Christopher is undeterred in his pursuit of an education: “You’re never too old to learn. You’re never too old to go to college. There’s always hope.”

Now in his mid-20s, Christopher, who wants to be a civil rights lawyer, figures he should at least be finishing college, if not sitting for the bar after law school graduation, by now.

“People know [these problems are happening], but they don’t care. We need leaders to step up,” he said. “I know I’m [going to be] one of them.”

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