Borderline Intellectually Disabled Student Denied Appropriate Education by Department of Corrections
On April 13, 2015, the United States District Court for the Middle District of Pennsylvania held that the special education services of a special education student who was incarcerated in the Restricted Housing Unit (“RHU”) of the Pennsylvania Department of Corrections (“DOC”) due to aggressive behaviors cannot be nullified for compelling security or penological interests. As the Court so eloquently articulated, “[t]he denial of appropriate education undoubtedly serves to perpetuate a vicious circle of incarceration for this at-risk population. It is this Court’s hope that the provision of a meaningful educational benefit may yet interrupt it.” The Court awarded the student full days of compensatory education for the entire time he was incarcerated in the RHU and was provided mere self-study educational programming.
Unfortunately, since the Court’s ruling, the DOC has done little to rectify the inadequate educational programming for special education students housed in the RHU, as well as special education students in other housing settings. Indeed, on March 20, 2017, a Pennsylvania Special Education Hearing Officer issued a Decision finding the DOC had denied a Student with Borderline Intellectual Functioning his right to a Free Appropriate Public Education (“FAPE”) pursuant to the Individual with Disabilities Education Act (“IDEA”) and ordered the DOC to provide the Student with full days of compensatory education from November 2013 through June 2016, amounting to 2,722.5 hours of compensatory education.
The compensatory education award was so significant because the Hearing Officer determined:
There is more than preponderant evidence in the record that the IEPs [Individual Education Programs] were not implemented, let alone implemented with fidelity, for long stretches of the Student’s incarceration. Ample, undisputed evidence was presented proving that the Student spent significant time in the RHU, in the [Special Needs Unit], or on cell restriction. Ample, undisputed evidence was presented that the Student’s IEPs were not followed during these periods of time and that, for the most part, the Student received no education at all. (Emphasis added.)
The DOC actually stipulated that the Student was denied his right to a FAPE from November 2013 through November 2014 because he received the same self-study educational programming that the student who was the subject of the April 2015 United States District Court Decision received. For the remaining timeframe, from November 2014 through June 2016, the DOC attempted to argue that its horribly insufficient Reevaluation Report (“RR”) was sufficient in understanding the Student’s complex educational needs, and that the dreadfully inadequate Individual Education Programs (“IEPs”) were appropriate to address the Student’s complex educational needs. The Hearing Officer firmly disagreed.
Specifically, the Hearing Officer found the DOC’s “2014 RR falls short of IDEA’s substantive requirements in almost every possible way.” (Emphasis added.) The Hearing Officer first found the DOC’s 2014 RR failed to evaluate all areas of suspected disability. He further indicated that “Emotional Disturbance was not only suspected, but found…[y]et there was no substantive analysis of the Student’s emotional state or behavioral needs.” (Emphasis added.) The Hearing Officer also found that the DOC’s 2014 RR failed to “use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.” The Hearing Officer further clarified that the assessments utilized by the DOC did “not include the deep and rich analysis common to the standardized, normative assessments of cognitive functioning, academic ability, and behavior that are routinely used in IDEA evaluations.” Next, the Hearing Officer determined that the assessments in the DOC’s 2014 RR were “not used for purposes for which the assessments or measures are valid or reliable,” indicating that the DOC inappropriately “relied upon quick screeners to make sweeping conclusions about the Student’s needs and abilities.” The Hearing Officer further found that the DOC’s 2014 RR failed to “gather relevant functional, developmental, and academic information…” Most notably with regard to the DOC’s 2014 RR, the Hearing Officer determined that “academic assessments were cursory and nothing was done to assess the Student’s needs as a student with Emotional Disturbance.”
All of the DOC’s IEPs were determined inappropriate to address the Student’s educational needs. Specifically, the Hearing Officer found that the DOC’s July 2014 and November 2014 IEPs failed to include Goals with baselines and included “nothing substantive about what special education the Student should have received, instead providing only generic or vague [Specially Designed Instruction] that, at best, reflect good teaching.” (Emphasis added.) The Hearing Officer determined the DOC’s June 2015 IEP also failed to include Goals with baselines, and, while “some aspects of the June 2015 IEP were a small step in the right direction,” the Specially Designed Instruction (which are “the core of special education”) “still fell far from the mark.” Finally, the Hearing Officer found the DOC’s June 2016 IEP to be “inappropriate by any measure,” indicating that “if the June 2015 IEP was a half-step forward, the June 2016 IEP was two steps back.”
Not only were this Student’s federally protected special education rights violated, there are undoubtedly many other special education students incarcerated in Pennsylvania that are being denied their right to a FAPE. Perhaps with strong advocacy on behalf of special education students who are incarcerated, we can help them obtain the services and support they are not only entitled to receive, but that may very well provide them the skills they need to prevent them from returning to the criminal justice system.