By Heather M. Hulse, JD, MA, MS

Special education students that are incarcerated are entitled to a free appropriate public education (“FAPE”), with some exceptions discussed further below, provided the student was previously identified as a special education student prior to incarceration. A FAPE means “special education and related services that are provided at public expense, under public supervision and direction, and without charge.”  20 U.S.C. § 1401(9)(A). The Supreme Court in Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley provided further clarification of the definition of FAPE.  Specifically, an eligible student’s Individualized Education Plan (“IEP”) must be reasonably calculated to yield meaningful benefit.  Rowley, 458 U.S. 176, 206-07 (1982).  The Third Circuit Court of Appeals has further  clarified that under the Individuals with Disabilities Education Act (“ IDEA”), a student with a disability is entitled to a program that is reasonably calculated to confer meaningful educational benefit that is more than trivial.  Polk; Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1213 (3d Cir. 1993); Ridgewood.  Thus, in order to provide meaningful benefit, a student’s IEP must be tailored to the unique, individual needs of the student consistent with the student’s potential.  34 CFR § 300.347(a).

Indeed, the IDEA requires that every IEP include: comprehensive educational levels; measurable annual goals; benchmarks or short term objectives relating to the goals; a statement of special education, related services and supplementary aids and services to be provided to the student; and an explanation of the extent to which the student will be educated with non-disabled students. 20 U.S.C. §1414(d); 34 C.F.R. § 300.347.

Pursuant to the Individuals with Disabilities Education Act (“IDEA”), students incarcerated are still entitled to FAPE with some exceptions.  Specifically, eligible incarcerated students are not entitled to be placed in the least restrictive environment, which means in an environment with typically developing peers.  Thus, due to their incarceration, the IDEA’s least restrictive environment requirement does not apply.  Additionally, eligible incarcerated students are not necessarily entitled to transition planning and transition services that would typically be provided pursuant to the IDEA.  In particular, transition planning and transition services do not apply with respect to students whose eligibility under the IDEA will end, due to their age, before they will be eligible to be released from prison.

It is also particularly important to note one further exception in the provision of FAPE to eligible students who have been convicted as adults under State law and are incarcerated in adult prisons.  In addition to the exceptions described above for all incarcerated eligible students, eligible students incarcerated in adult prisons after being convicted as an adult may also receive modifications to their IEP or placement.  More specifically, if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated, the student’s IEP team is permitted to modify the student’s IEP and/or placement accordingly.  Questions regarding the specific IEP modifications, as well as the demonstration of a bona fide security or compelling penological interest that cannot otherwise be accommodated is currently still being litigated in Federal Court.

Parents of eligible students who are incarcerated should ensure their child is receiving a FAPE consistent with the IDEA.  Parents may contact our office with any questions or concerns.