Special education programs shouldn’t stop at the jailhouse door
He’s an 18-year-old who has been in special education programs since he was in kindergarten. His most recent program included weekly speech therapy and counseling and 5.7 hours of special education instruction each school day. But today he’s in the Essex County Jail. He’s been in custody for more than a year and has received zero education services, despite a statewide mandate that he’s entitled to such services until he reaches age 22.
In the class action lawsuit filed this month in Middlesex Superior Court, that 18-year-old is John Doe 3, one of three direct parties in the suit. However, the class of 18- to 21-year-olds being held in county correctional facilities but receiving either no or grossly inadequate special education services is likely to number in the hundreds, according to the suit brought against the state Department of Elementary and Secondary Education.
DESE, the suit alleges, went against the Legislature’s express intent that the agency “shall provide special education to school age children with a disability who are incarcerated in county houses of correction,” first by limiting its responsibility through its own regulation and then by outsourcing the education services offered to a private, nonprofit contractor, the Collaborative for Education Services.
Why does any of this matter — apart from the legal niceties of actually abiding by a state law that dates to 1972 and is aimed at addressing discrimination against students with disabilities?
Well, these kids, including those who landed in county jails, won’t be there forever. And when they do get out, it does matter whether they will have a diploma or remain on track for one.
That, as the lawsuit so eloquently points out, is why we all should care:
“The life prospects of youth who fail to graduate are greatly diminished, economically and otherwise. A high school diploma is necessary to have any reasonable chance to compete in today’s job market. Without meaningful employment opportunities, youth are substantially more likely to live in poverty and depend on public benefits as adults. This poverty can exacerbate mental health issues, as well as perpetuate cycles of homelessness and unemployment.”
The suit was brought by the EdLaw Project of the Committee for Public Counsel Services and the Mental Health Legal Advisors Committee on behalf of three incarcerated students with Individualized Education Programs — John Doe 1, 2, and 3 — currently housed in Norfolk, Plymouth, and Essex counties — and what is likely 200 or more others.
Some 20 percent of all Massachusetts public school students have disabilities that qualify them for an IEP, according to DESE’s own statistics. About 50 percent of students in the custody of the Department of Youth Services receive special education services.
And a 2022 report by Citizens for Juvenile Justice, an advocacy group, estimated that county correctional facilities, tasked by the education department with identifying special ed students, undercounted them by 142 to 189 for the years 2018 to 2020.
As the lawsuit points out, DESE relies on county prison officials, not its special education contractor, to identify students with existing special ed programs. And prison officials usually rely on the students themselves to speak up — often under embarrassing circumstances.
“In one jail, students are asked to overcome the shame typically experienced by students with learning disabilities and raise their hand in the presence of other imprisoned youth when the group is asked if anyone has an IEP,” the suit noted.
The education department had no comment other than a statement saying it is “reviewing the lawsuit and is committed to seeing that all students with disabilities receive the services they deserve.”
Yet the suit contends DESE “provides nothing more than limited math and English tutoring to eligible students” and as of February “only 2.4 full-time equivalent teachers provided special education across all 15” county houses of correction. As of February only 12 students were receiving services from DESE and six county facilities listed no students receiving special education services.
It shouldn’t, of course, take a lawsuit to force state officials to do the right thing. Although back in 1981, it was a federal court injunction and accompanying findings of fact that prompted DESE to provide direct services to special ed students in those same county facilities where it has since attempted to off-load responsibility to the school districts from which the students came and its private contractor.
Under that earlier system students “received significant daily instruction from state employees who worked full-time and were certified in special education,” according to the lawsuit.
Today’s system represents an untenable exercise in backsliding by the state education department — at a time when we know more, not less, about the value of such programming and its impact on the futures of those who receive it. Massachusetts, the very home of public education, can do better.
It shouldn’t, of course, take a lawsuit to force state officials to do the right thing.