1 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

2

3 EDUCATION SYSTEMS IN JUVENILE DETENTION CENTERS

4 I. INTRODUCTION

5 Juvenile detention centers were first created to promote re-habilitation rather than to punish. 1 In fact, the goal of rehabili-tation is the very reason juveniles who break the law are called “offenders” rather than “criminals.” 2 Rehabilitation is the rea-son a separate system of juvenile exists rather than only one sys-tem that processes both children and adults who break the law in the same courts.3

6 The importance of education in the prevention and rehabil-itation of delinquent youth has been illustrated at great length in numerous studies.4 Yet, implementation of education pro-grams in juvenile detention centers varies widely from state to state and even within individual states.5

7 The U.S. Constitution does not mention education, and education is not a federal issue; therefore, education govern-ance is reserved for the states.6 Every state in the Union pro-vides a constitutional foundation for “a free system of public schools” for every child within the state’s jurisdiction.7 Alt-hough no state constitution explicitly articulates that education must be provided to juveniles in detention centers, the evolu-tion of legislation and common law have extended the right to public education to juvenile offenders in state facilities.8 Never-

8

1. 9 See JOAN MCCORD ET AL., JUVENILE CRIME, JUVENILE JUSTICE 154 (2001), https://www.nap.edu/read/9747/chapter/7.

2. 10 Id.

3. 11 Id.

4. 12 See, e.g., Education and Vocational Training in Prisons Reduces Recidivism, Im-proves Job Outlook, RAND CORPORATION (Aug. 22, 2013), http://www.rand.org/news/press/2013/08/22.html; see also, OPEN SOCIETY INSTITUTE,

13 RESEARCH BRIEF NO. 2, EDUCATION AS CRIME PREVENTION: PROVIDING EDUCATION TO

14 PRISONERS, 2–3 (1997), https://www.prisonpolicy.org/scans/research_brief__2.pdf.

5. 15 See MCCORD ET AL., supra note 1, at 156.

6. 16 See Katherine Twomey, The Right to Education in Juvenile Detention under State

7. 26 Id. at 788.

8. 27 E.g., Twomey, supra note 6, at 788-95.

28 71

29 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

30

33 theless, just what entails an adequate education in these circum-stances is still debated.9

34 Constitutional and statutory language about the adequacy of education is vague. To make up for the discrepancy, the U.S. Congress has passed laws to outline educational mandates, and Presidents George W. Bush and Barack Obama even spear-headed presidential initiatives to address the problem.10 Never-theless, attempts to improve education programs within juve-nile detention centers are fractured, leaving national recidivism rates unchanged.11 Correcting this problem would directly and significantly impact recidivism among juveniles and dramatical-ly affect the individual lives of juvenile offenders. Improve-ments could start with simply gathering data. Currently, there is no national data collected on sentence, time served in con-finement, or time served on parole. Using national resources to gather this information would better allow the states to make informed decisions.

35 This Note presents an analysis of the present juvenile de-tention and education systems. I explore the overlap between state and federal laws that address how education should be conducted within juvenile detention centers. I argue that educa-tion is not a fundamental right according to the U.S. Constitu-tion; however, it is a fundamental right according to each state constitution. Because the federal government has no express constitutional foundation for implementing policies that man-date state educational decisions within juvenile justice systems, only federal policies that are adopted by the states can be im-plemented.

36 I argue that the role of the federal government should be to incentivize and promote improvements in education within the juvenile justice system. The federal government can use its purse strings to encourage states to take action in areas of deep importance, such as testing every juvenile offender for learning

37

9. 38 See Josh Kagan, A Civics Action: Interpreting “Adequacy” in State Constitutions’ Education Clauses, 78 N.Y.U. L. Rev. 2241, 2241 (2003), http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-78-6-Kagan.pdf.

10. 39 See, e.g., 20 U.S.C.A. § 6301 et seq.; see also About Us, MY BROTHER’S KEEPER ALLIANCE, https://www.mbkalliance.org/about-us/ (last visited Apr. 28, 2017).
11. 40 Twomey, supra note 6, at 767.

41 72

42 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

43

44 2]Education Systems in Juvenile Detention Centers

45

46 disabilities upon entrance. The federal government should not use its pen to overreach state control of education issues by cre-ating national mandates, but it can and should incentivize states to create solutions. The juvenile justice system needs to be re-formed, and the federal government can provide useful contri-butions; however, the states have the ultimate purview over ed-ucation within their boundaries.

47 To make these arguments, I explore the controversy around education within juvenile detention centers. Part I discusses why juvenile detention centers were created and how education facilitates lower recidivism rates. Part II provides a history of education rights. This section breaks down how the Supreme Court had addressed education as well as the areas of education the Supreme Court has refused to hear. It also discusses the foundation of state control over education. Part III highlights how education within juvenile detention centers currently falls short. Part IV illustrates some of the various ways federal and state laws have attempted to reform juvenile justice systems and education, and how federal and state laws have clashed. Part V provides arguments for states spearheading the solutions for education within juvenile detention systems and provides some possible remedies to consider.

48 I. BACKGROUND OF JUVENILE DETENTION CENTERS

49 Policy discussions about public education systems’ failures nationwide and within juvenile detention centers abound in the popular media. 12 Many critics advocate a national solution, but education even in juvenile detention centers is fundamentally a states’ rights issue.

50 Before advocating a position, it is important to fully discuss the facts about juvenile justice and education. This section be-gins by illustrating how education is addressed in juvenile de-tention centers nationwide, followed by a discussion about the

51

52 12. Liz Ryan, Criminal Justice Reforms Must Include Youth Behind Bars, Huffington Post, July 20, 2016, http://www.huffingtonpost.com/liz_ryan/mr-president-and-congress_b_7828070.html (“Essentially, youth are much worse off after being incarcerated. Removing them from their homes and communities and placing them in correctional settings disrupts youths’ education and their healthy psychological development . . . .” Id.).

53 73

54 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

55

58 importance of education to reduce recidivism of juvenile delin-quents. This section will finish by laying out the background and purpose of the juvenile detention centers and will provide a foundation for examining the efficacy of the education policies currently in place.

59 A. Statistical Measurements of Juvenile Delinquency and

60 Education

61 One a given day in 2015, more than 48,000 juveniles were held in detention centers across the nation.13 That number is down 48% from 1997.14 Today court systems more often use alternatives to incarceration, like probation, that enable juvenile offenders to stay out of residential placement facilities. This use of alternatives has led to a decrease in the number of youth in detention centers nationwide.15

62 When juvenile offenders are placed in residential centers many are typically screened for educational needs either the same day or within one week of placement.16 In 2014, 92% of facilities nationwide evaluate youth for educational needs.17 Lo-cal and privately operated facilities evaluated youth for educa-tional needs 86% of the time.18 Furthermore, 86% of facilities performed an education evaluation on incoming juvenile of-fenders within one week of admission, and 20% of facilities evaluated youth for educational needs within 24 hours of ad-

63

13. 64 OFFICE OF JUV. JUST. & DELINQ. PREVENTION, JUVENILES IN CORRECTIONS: DEMOGRAPHICS (March 8, 2018), https://www.ojjdp.gov/ojstatbb/corrections/qa08201.asp.

14. 65 Id.

15. 66 Patrick McCarthy et al., The Future of Youth Justice: A Community-Based Alterna-tive to the Youth Prison Model 2 NAT’L INST. OF JUSTICE 1, 2 (2016), http://www.aecf.org/m/resourcedoc/NIJ-The_Future_of_Youth_Justice-10.21.16.pdf.

16. 67 When facilities evaluate youth for educational needs, by facility operation and facili-ty type, 2014: Facility Practices and Services (2014 Facility Practices and Services), OFFICE OF

68 JUV. JUST. & DELINQ. PREVENTION, (Aug. 31, 2016), https://www.ojjdp.gov/ojstatbb/corrections/qa08531.asp?qaDate=2014&text=yes&maplink=link 1.

17. 69 Facilities evaluating youth for educational needs, by facility operation and facility type, 2014: Facility Practices and Services (2014 Facility Practices and Services Evaluations),

70 OFFICE OF JUV. JUST. & DELINQ. PREVENTION, JUVENILES IN CORRECTIONS (Aug. 31, 2016), https://www.ojjdp.gov/ojstatbb/corrections/qa08530.asp?qaDate=2014.

18. 71 Id.

72 74

73 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

74

75 2]Education Systems in Juvenile Detention Centers

76

77 mission.19 However, depending on the facility type, the per-centage of students evaluated fluctuates. Ranch and wilderness camps evaluated the highest percentage of youth (97%), and shelters evaluated the lowest percentage of youth (69%).20 Within detention centers, 89% of youth were evaluated.21 This disparity is important because even short-term absences from school can have a detrimental effect on a delinquent youth’s ability to keep up on classes and work toward graduation.22 Shelters are used for youth in a “crisis situation or in a state of transition.” 23 However, sometimes juveniles will stay in shelters for long periods of time. Some emergency shelters limit stays to 30 days, but other long-term shelters accept youth for a year or longer.24 Within these shelters, the educational needs of more than 30% of juvenile offenders may be overlooked.25 When youth are released from these shelters, having missed even just a few weeks of classes, they find themselves at a disadvantage compared to their classmates.

78 Another group of youth whose educational needs are often overlooked is juvenile delinquents who are placed in adult pris-ons. Between 1993 and 2014, 70-91% of inmates under age 18 were held as adults. 26 The Office of Juvenile Justice and Delin-quency Prevention (OJJDP) does not track the rate at which youth placed in adult prisons are evaluated for educational needs. Youth in adult prisons often do not spend their entire lives in prison. But, when youth held in adult prisons or in ju-venile detention centers are released, they often wind up re-

79

19. 80 2014 Facility Practices and Services, supra note 16.

20. 81 Id.

21. 82 Id.

22. 83 Farah Z. Ahmad and Tiffany Miller, The High Cost of Truancy, CENTER FOR AMERICAN PROGRESS 1, 8 (Aug. 2015) https://cdn.americanprogress.org/wp-content/uploads/2015/07/29113012/Truancy-report4.pdf.

23. 84 OFFICE OF JUV. JUST. & DELINQ. PREVENTION, Literature Review: A Product of the Model Programs Guide—Shelter Care (July 2011), https://www.ojjdp.gov/mpg/litreviews/Shelter_Care.pdf.

24. 85 Id.

25. 86 2014 Facility Practices and Services Evaluations, supra note 16. (“Fewer than 7 in 10 shelters evaluated all youth in 2014.” Id.)
26. 87 Jail inmates younger than 18, 1990–2014: Juveniles in Adult Jails and Prisons,

88 OFFICE OF JUV. JUST. & DELINQ. PREVENTION, JUVENILES IN CORRECTIONS (Dec. 13, 2015), https://www.ojjdp.gov/ojstatbb/corrections/qa08700.asp?qaDate=2014.

89 75

90 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

91

94 offending. Within 12 months of release, the Department of Justice reports, 55% of juvenile offenders will be arrested.27 With education, that number significantly drops.28

95 B. Studies Show Decreased Recidivism Due to Education

96 As established above, once juvenile offenders have been convicted of a crime, they are more likely to commit a second crime.29 In a longitudinal study conducted in 2005, the Bureau of Justice Statistics found that among inmates from thirty states, “67.8%. . .were arrested within 3 years of release, and 76.6% were arrested within 5 years of release.” 30 Total “years of education, cognitive skills, grade point average, and attitude toward school”31 indicate the likelihood of adult incarceration among a national sample of juveniles.

97 Continual education for youth and adults while they are in the justice system greatly affects recidivism rates.32 A 2013 RAND Corporation study showed that participation in prison education, including both academic and vocational program-ming, was associated with a reduction in recidivism of more than 40%, “with a 41 investment in prison education reducing incarceration costs by $4 to $5 during the first three years post-release.” 33 As a result, the U.S. saves about $2 million for each person who is successfully rehabilitated during the time spent in juvenile detention.34

98 Decreasing recidivism benefits both offender and communi-ty. Youth who break out of the cycle of offense can get jobs and put money back into the communities in which they live. In the

99

27. 100 Howard N. Snyder & Melissa Sickmund, Juvenile offenders and victims: 2006 Na-tional Report, NAT’L CTR. FOR JUV. JUST. 1, 234 (March 2006) https://www.ojjdp.gov/ojstatbb/nr2006/downloads/NR2006.pdf.

28. 101 See, e.g., RAND CORPORATION, supra note 4.

29. 102 Id.

30. 103 Matthew Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Pat-terns from 2005 to 2010, Bureau of Justice Statistics, 1 (April 2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.

31. 104 Richard Arum & Irenee R. Beattie, High School Experience and the Risk of Adult Incarceration, 37 Criminology 515, 518 (1999).
32. 105 RAND CORPORATION, supra note 4.

33. 106 Id.

34. 107 Twomey, supra note 6, at 774.

108 76

109 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

110

111 2]Education Systems in Juvenile Detention Centers

112

113 words of Justice Warren Burger, “We must accept the reality that to confine offenders behind walls without trying to change them is an expensive folly with short-term benefits—winning battles while losing the war.” 35

114 In Brown v. Board of Education, the U.S. Supreme Court highlighted the importance of education, saying, “[I]t is doubt-ful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” 36 That is be-cause “education is perhaps the most important function of state and local governments. . . . It is the very foundation of good citizenship. Today it is a principal instrument in awaken-ing the child to cultural values, in preparing him for later pro-fessional training, and in helping him to adjust normally to his environment.” 37

115 Although Brown was specifically targeting the race and edu-cation question, this line of reasoning applies equally to the de-bate about juvenile offenders and education. There is no better way to prepare a juvenile offender to reintegrate into society af-ter a period of reform in juvenile detention centers than through continual education in juvenile detention.38 If society wants to reform juvenile offenders, education is the solution.39 If society wants to awaken juvenile offenders to cultural values, education is the solution.40 If society wants to prepare juvenile offenders for professional training and adjusting to life outside of detention centers, education is the solution.41 It is in the in-terest of society to stop the cycle of recidivism, and education within juvenile detention centers provides a solution.

116 Not only is education the solution for success after release from detention centers, but it is also key to improving condi-tions within detention centers. Education programs have been

117

35. 118 Quoted in OPEN SOCIETY INSTITUTE, supra note 4, at 1.

36. 119 347 U.S. 483, 493 (1954).

37. 120 Id.

38. 121 Carol Rapp Zimmerman et al., Desktop Guide to Reentry for Juvenile Confinement Facilities, THE PARTNERSHIP: NAT’L PARTNERSHIP FOR JUV. SERV. 1, 19 (July 2004) http://www.njjn.org/uploads/digital-library/resource_1244.pdf.

39. 122 Brown, 347 U.S. at 493 (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” ).

40. 123 Id.

41. 124 Id.

125 77

126 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

127

130 linked to improved interpersonal relationships for adult in-mates, and similarly relationships between juvenile offenders could be improved by education.42 A study performed by the Institute of Higher Education Policy evaluated adult prison sys-tems and found that attending college classes correlated with an improved social atmosphere and clear communications in the prison population.43 In the juvenile justice system, clear com-munications, as fostered by learning, may improve relationships between offenders.

131 Education within the justice system is vital because inmates are generally an under-educated community lacking basic writ-ing and math skills. Research shows that when public education is deficient, and other opportunities such as homeschooling or private education are unavailable, children are more likely to commit crimes and end up in a detention center.44 Marginal lit-eracy skills are predictors of involvement in the juvenile justice system. The median age of youth in juvenile detention centers is 15.5 years old, but the average reading level is fourth grade.45 “[E]ducational measures including low achievement, low vo-cabulary, and low verbal reasoning increase delinquency predic-tions by 27%.” 46

132 Individuals without a high school diploma are also three times more likely to be in poverty than high school graduates.47 Juveniles in high-poverty neighborhoods are more likely to en-gage in criminal activity. 48 On the other hand, studies show that education leads to less poverty and less criminal activity.49

133

42. 134 INSTITUTE FOR HIGHER EDUCATION POLICY, Educating the Nation’s Prison Population May Spur Future Economic Growth and Reduce Public Expenses, IHEP (May 4, 2011), http://www.ihep.org/press/news-releases/educating-nations-prison-population-may-spur-future-economic-growth-and-reduce.

43. 135 Id.

44. 136 See OPEN SOCIETY INSTITUTE, supra note 4, at 1–2.

45. 137 Id. at 2.

46. 138 Emily A. Mann & Arthur J. Reynolds, Early Intervention and Juvenile Delinquency Prevention: Evidence from the Chicago Longitudinal Study, 30 SOC. WORK RES. 153, 155 (2006).

47. 139 THE NAT’L CTR. ON ED., DISABILITY AND JUV. JUST., Juvenile Correctional Edu-cation Programs, http://www.edjj.org/focus/education/ (last visited Apr. 27, 2017).
48. 140 Peter E. Leone et al., Special Education Programs for Youth with Disabilities in Juvenile Corrections, 53 J. CORRECTIONAL EDUC. 46, 47 (2002).

49. 141 See THE NAT’L CTR. ON ED., DISABILITY AND JUV. JUST., Juvenile Correctional

142 78

143 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

144

145 2]Education Systems in Juvenile Detention Centers

146

147 When youth achieve success in school, they more often achieve success in life.50

148 In addition to preventing incarceration in the first place, education can prevent repeat offenses.51 Consistently, studies show that “[i]nmates of all ages are half as likely to [be re-incarcerated] if they participate in higher education. . .” 52 In-mates in New York “who earned a [GED] while incarcerated were significantly less likely than those who did not earn a GED to return to prison.” 53 Another study focusing on juvenile offenders found that 41% of those without a high school di-ploma would be rearrested during the first year of their release; but only 22% of those who had earned a high school diploma reoffended during the first year following release.54 These sta-tistics illustrate that education is in the best interests of the community, as well as of each individual.

149 Education within juvenile detention facilities may be the last chance a youth will have to receive a public education.55 Many students cannot return to the regular school system after being released from custody, because they are too old.56 Education programs within juvenile detention systems are especially im-portant for these offenders. A study that tracked “1,355 serious offenders between the ages of 14 and 17 in two cities over . . .

150 eight years”57 found that “only about one third of the [partici-

151

152 Education Programs, http://www.edjj.org/focus/education/ (last visited Apr. 27, 2017), https://academic.oup.com/qje/article/116/2/655/1904197.

50. 153 Id.

51. 154 DEP’T OF ED., CORRECTIONAL EDUCATION GUIDANCE PACKAGE, https://ed.gov/policy/gen/guid/correctional-education/fact-sheet.pdf (last visited Apr. 27, 2017).

52. 155 Id.

53. 156 CHAPTER 5: EDUCATION, EMPLOYMENT, AND RECIDIVISM: A REVIEW OF THE LITERATURE, 2006 ANNUAL REPORT TO THE FLA. DEPT. OF EDUC.: JUV. JUST. EDUC. ENHANCEMENT PROGRAM 55, 56 (2006), http://criminology.fsu.edu/wp-content/uploads/Education-Employment-and-Recidivism-a-Review-of-the-Literature-Ch-5-2006-Annual-Report.pdf.

54. 157 Denise M. Ambrose & David Lester, Recidivism in Juvenile Offenders: Effects of Education and Length of Stay 63, PSYCHOL. REP., 778, 778 (1988).
55. 158 Twomey, supra note 6, at 767.

56. 159 See Id.

57. 160 CHAPTER 5: EDUCATION, EMPLOYMENT AND RECIDIVISM: A REVIEW OF THE

161 LITERATURE, supra note 53, at 57.

162 79

163 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

164

167 pants] were school -eligible at the time of release.” 58 The re-maining youth had either turned 18, making them ineligible for public school, or had earned a “GED while committed.” 59 In another study of 532 juvenile offenders in Oregon, researchers found that youth who “participat[ed] in school after release were less likely to recidivate. However, less than one half of the youth were working or in school six months after release.” 60

168 Truancy may lead a juvenile to detention in the first place, and truancy may continue to be a problem after release; howev-er, if given the opportunity to catch up and keep up with their classmates while in detention, some juveniles may be less likely to avoid the classroom after conviction.61 But the desire to skip school may be aggravated when the students are behind the rest of their classmates upon release from a detention center.62 Since the purpose of juvenile detention centers is to reform juvenile offenders, education programs are essential.

169 Education reduces the likelihood that a child will commit a crime in the first place and is a powerful tool in reducing recid-ivism rates.63 Education empowers the former offender to make decisions that will further a career and success in life, and reha-bilitation also serves communities’ economic interests.64

170 C. The Purpose of Juvenile Detention

171 The first juvenile court was created in Cook County, Illi-nois, following the 1899 Illinois Juvenile Court Act, which cre-ated separate prisons for juvenile offenders.65 The Act was based on juvenile crime prevention rather than on the penal approach.66 Reformers during the Progressive Era believed that children and adolescents should be treated with “empathy,

172

58. 173 Id.

59. 174 Id.

60. 175 Id

61. 176 Ahmad supra note 22, at 2.

62. 177 See Id. at 1.

63. 178 See RAND CORPORATION, supra note 4.

64. 179 See Leone, supra note 48, at 47-9.

65. 180 MCCORD ET AL., supra note 1, at 157.

66. 181 Janet Gilbert et al., Applying Therapeutic Principles to a Family-Focused Juvenile Justice Model (Delinquency), 52 ALA. L. REV. 1153, 1159–60 (2001).

182 80

183 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

184

185 2]Education Systems in Juvenile Detention Centers

186

187 trust, and a spirit of rapprochement.” 67 In an effort to avoid treating children as criminals, reformers wanted to bring juve-nile offenders before a court aimed at intervention, guidance, and rehabilitation rather than simply punishment.68

188 Children in the original juvenile justice system had not nec-essarily committed a crime before entering the system.69 Ra-ther, parents could refer a child for offenses that would not be a crime if committed by an adult, such as being unruly or immor-al.70 States made their own laws regarding the treatment of children.71 The doctrine of parens patriae, the state as a parent, was a motivating force in the development of the juvenile jus-tice system across the nation.72

189 By 1925, every state except Maine and Wyoming had a functioning juvenile court.73 From the time the first juvenile courts were created until the 1990s, the juvenile justice systems in each state underwent extensive changes. Originally, juveniles would have closed hearings, without a jury, and no charges were filed.74 However, as court dockets grew increasingly long, controversy grew surrounding the constitutional question of giving a busy judge so much power. Cases brought before the United States Supreme Court reinstated the rights of juveniles to have many of the same protections afforded to adults in criminal trials.75 Nevertheless, to this day, not all procedural due process rights exercised by adults are afforded to juvenile delinquents.76 For instance, many hearings for juveniles are

190

67. 191 MCCORD ET AL., supra note 1, at 158.

68. 192 See id. at 157.

69. 193 Id.

70. 194 Id.

71. 195 Id. at 155.

72. 196 Twomey, supra note 6, at 768.

73. 197 Id. Maine and Wyoming established juvenile courts twenty years later. Jeffrey M.Y. Hammer et al., Denying Child Welfare Services to Delinquent Teens: A Call to Return to the Roots of Illinois’ Juvenile Court, 36 LOY. U. CHI. L.J. 925, 929 n.21 (2005).

74. 198 MCCORD ET AL., supra note 1, at 154.

75. 199 See Kent v. United States, 383 U.S. 541 (1966) (right to a hearing on transfer to an adult court); In re Gault, 387 U.S. 1 (1967) (juveniles have a right to receive notice of the charges, legal counsel, confront and cross-examine witnesses, protection from self-incrimination, receive a transcript of the court hearing, and right to appeal); In re Winship, 397 U.S. 358 (1970) (juveniles charged with criminal acts must be proved beyond a reasonable doubt); Breed v. Jones, 421 U.S. 519 (1975) (double jeopardy applies to juveniles).
76. 200 See Mike L. Bridenback, Study of State Trial Courts Use of Remote Technology,

201 81

202 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

203

206 held by tele-conference without a judge physically present.77 However, juveniles have gained many of the rights histori-

207 cally afforded to adults.78 Prosecutors have the same burden of proof regardless of their client’s age.79 Juveniles also have the right to receive notice of the charges, use legal counsel, con-front and cross-examine witnesses, avoid self -incrimination, re-ceive a transcript of their court hearings, and appeal.80

208 In response to concerns about juvenile justice systems, the United States Congress passed the Juvenile Justice and Delin-quency Prevention Act in 1974.81 That law created the Office of Juvenile Justice and Delinquency Prevention within the De-partment of Justice. The purpose of this Office was “to support local and state efforts to prevent delinquency and improve the juvenile justice system.” 82

209 The Act also “[c]reated a Forumla Grants program.” 83 To receive funding, states had to abide by certain mandates. Each state had to designate a state agency tasked with creating a three-year juvenile justice and delinquency prevention plan.84 Additionally, each state would establish a State Advisory Group to administer the Formula Grants program plan.85 Finally, each state had to comply with the Act to receive allocated dollars.86

210 Compliance with the Act required fulfillment of four main points.87 The first of these was the “deinstitutionalization of status offenders.” 88 These status offenders were youth who had

211

212 National Association for Presiding Judges and Court Executive Officers (Apr. 2016), http://napco4courtleaders.org/wp-content/uploads/2016/08/Remote-Technology-Report-April-2016.pdf.

77. 213 Id.

78. 214 See cases listed, supra note 75.

79. 215 See 397 U.S. 358 (1970).

80. 216 See 387 U.S. 1 (1967).

81. 217 Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. §5601 et seq. (1974).

82. 218 Legislation/JJDP Act, OFFICE OF JUV. JUST. & DELINQ. PREVENTION, https://www.ojjdp.gov/about/legislation.html, (last visited Apr. 27, 2017).

83. 219 Id.

84. 220 Shay Bilchik, OJJDP Fact Sheet, U.S. DEPT. OF JUST., (Nov. 1999), https://www.ncjrs.gov/pdffiles1/ojjdp/fs99122.pdf.

85. 221 Id.

86. 222 Id.

87. 223 Id.

88. 224 Id.

225 82

226 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

227

228 2]Education Systems in Juvenile Detention Centers

229

230 perpetrated an act that would not be considered a crime if done by an adult.89 Status offenders also included children who had been neglected by their parents and, therefore, found them-selves in the juvenile justice system.90 Second, juveniles had to be separated from adult inmates.91 Third, states could not de-tain juvenile offenders in “adult jail[s] and lockup[s].” 92 Finally, states needed to demonstrate efforts to reduce the proportion of detained juveniles who belonged to minority groups.93 The federal government incentivized states to tailor state systems to better fit the goal of juvenile justice—rehabilitation of minors.94

231 At this process of juvenile justice reform unfolded, many states also recognized the power of education in teaching chil-dren to be productive citizens.95 Contemporaneously with the creation of juvenile justice systems, states instituted public edu-cation laws. Rhode Island was the first state to pass a general compulsory education law and did so in 1840.96 By 1918, every state had a compulsory education statute.97 Such compulsory education laws typically apply to delinquent youth residing in youth detention centers.98

232 II. BACKGROUND OF EDUCATION

233 This section elaborates on the legal basis for controlling ed-ucation as outlined by the U.S. Supreme Court, the U.S. Con-stitution, and state constitutions. This Part will discuss the ways the U.S. Supreme Court has been involved in the education discussion, as well as notable ways the Court has been silent on the matter. These silences occur because the Constitution has given power over educational policy decisions to the states. I

234

89. 235 Id.

90. 236 Id.

91. 237 Id.

92. 238 Id.

93. 239 Id.

94. 240 See MCCORD ET AL., supra note 1, at 284.

95. 241 Twomey, supra note 6, at 792 n.144.

96. 242 Mitchell L. Yell et al., The Legal History of Special Education: What a Long, Strange Trip It’s Been, 19 REMEDIAL & SPECIAL EDUC. 219, 219 (1998).

97. 243 Id. at 220.

98. 244 See Twomey, supra note 6, at 788.

245 83

246 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

247

250 will evaluate how states have constructed their individual con-stitutions to provide a right to education for all youth.

251 A. Courts on Education

252 Despite the importance of education in empowering youth for the future, neither the U.S. Constitution nor the U.S. Su-preme Court list education as a fundamental right.99 When the Court handed down the opinion in Brown v. Board of Educa-tion , some misconstrued the language as holding that education was a fundamental right.100 However, the Court clarified that misunderstanding in 1973 with San Antonio Independent School District v. Rodriguez. 101 Applying rational basis judicial scrutiny, the court held that education is not a “fundamental right.” 102 Therefore, schoolchildren living in disadvantaged dis-tricts in Texas could not legally recover for wealth- based dis-crimination.103 Unlike the decisions in Brown, which dealt with race-based discrimination, poor children are not a distinct, im-mutable, and isolated group, according to Rodriguez.104

253 Juveniles are not a suspect class; therefore, any case alleg-ing discrimination against youth will be judged using rational basis scrutiny under equal protection analysis.105 Even though courts use broad language to talk about the importance of edu-cation, the Equal Protection Clause of the Constitution does not protect schoolchildren, and Rodriguez clarified that educa-tion is not a fundamental right.106

254 The pendulum of justice did eventually swing somewhat toward protecting education in 1982, with Plyler v. Doe.107 Here, the Court applied intermediate scrutiny when ruling that

255

99. 256 See Id. at 784.

100. 257 See 347 U.S. at 493; San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 18

258 (1973).

101. 259 Rodriguez, 411 U.S. 1 (1973).

102. 260 Id. at 37.

103. 261 Id. at 24.

104. 262 Id. at 40.

105. 263 Id.

106. 264 Id.

107. 265 457 U.S. 202 (1982).

266 84

267 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

268

269 2]Education Systems in Juvenile Detention Centers

270

271 undocumented resident aliens could not be denied education.108 “By denying these children a basic education,” the Court wrote, “we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” 109 Therefore, although education is not explicitly called a fundamental right, it is widely recognized as fundamen-tal to the success of individuals and the country as a whole.110

272 Nevertheless, some advocates continue to argue that the Court should apply strict scrutiny in cases dealing with educa-tion. These advocates point to racial factors as a call for judicial intervention in providing education to juvenile offenders.111 Ju-venile delinquents are disproportionately minority, poor, and disabled. As of 2003, 58% of male inmates were Black or His-panic.112 For this reason, advocates of national intervention in juvenile justice support the highest level of scrutiny in equal protection claims dealing with education.113

273 Some argue that even if education was a fundamental right, juvenile offenders have forfeited that right by committing crimes, just as they have forfeited their right to liberty.114 How-ever, this argument counters the purpose of juvenile justice, namely rehabilitation. It is in society’s best interest to provide juvenile offenders with an education because, as was discussed above, education is not simply a luxury item, but is a powerful tool to promote reform within individuals and progress in communities.

274 In addition to addressing the level of scrutiny a court should use in addressing education concerns, the courts have also ad-dressed appropriate accommodations that need to be provided for students. In Youngberg v. Romeo,115 the Court held that the state had to provide minimally adequate training to a mentally

275

108. 276 Id. at 218–19, n. 16, 230

109. 277 Id. at 223.

110. 278 See Twomey, supra note 6, at 767.

111. 279 Twomey, supra note 6, at 770.

112. 280 Id. (85% of juvenile inmates were male).

113. 281 Id.

114. 282 Id. at 795

115. 283 457 U.S. 307, 322 (1982).

284 85

285 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

286

289 retarded boy. Restricting the boy by using shackles during vio-lent outbursts was held unconstitutional.116 The Court held that when the state confines someone for “care and treatment,” it is obligated to provide treatment. Following this same vein of logic, it would make sense for education to be mandatory be-cause it is an essential part of treatment for juvenile offenders.117 However, since education is not a fundamental right, like free-dom, the same constitutional, or federal, foundation for man-dating education within the juvenile justice system does not ex-ist.118

290 Rather, states consider the extent to which they will indi-vidually provide education.119 Washington, for example stands as “[t]he only state supreme court that has directly considered a [constitutional] challenge to” juvenile detention education.120 The Washington Supreme Court in Tunstall v. Bergeson 121 ex-amined the extent to which education should be provided to ju-veniles under age 21 in state prions. The court held that school districts are not obligated to provide education in Washington State prisons to individuals over age 18.122 Instead, statutes es-tablishing a system of corrections govern inmates’ education rights.123 The Washington constitution required juvenile cor-rectional facilities to help inmates toward a high school diplo-ma.124 The petitioner sought educational services for incarcer-ated persons under the age of 21.125 However, the court rejected this challenge because it failed to provide specific facts showing violation.126 No fundamental right of equal protection had been infringed.127 Yet, at the same time, the court held that individu-

291

116. 292 Id. at 310, n. 4, 316.

117. 293 Gilbert, supra note 66, 1159.

118. 294 See cases listed supra note 75.

119. 295 Emily Parker, 50-State Review: Constitutional obligations for public education, EDUCATION COMMISSION OF THE STATES 1, 1 (March 2016), http://www.ecs.org/ec-content/uploads/2016-Constitutional-obligations-for-public-education-1.pdf.

120. 296 Twomey, supra note 6, at 785.

121. 297 5 P.3d 691, 706 (2000).

122. 298 Id.at 694–95.

123. 299 Id. at 702.

124. 300 Id.

125. 301 Id. at 696.

126. 302 Id. at 704.

127. 303 Id.

304 86

305 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

306

307 2]Education Systems in Juvenile Detention Centers

308

309 als under the age of 18 incarcerated in adult Department of Correction facilities do have a constitutional right to public ed-ucation.128

310 This case is important because the court explicitly rejected the argument that children forfeited their right to education by committing a crime, even a serious one.129 In the absence of any other state supreme court cases specifically addressing juvenile education, this case indicates a mindset with sound reasoning that could mirror the treatment of juveniles in other states.

311 B. Constitutional Control Over Education

312 The U.S. Constitution does not specifically discuss educa-tion. Therefore, there is no national right to education. How-ever, the 10th Amendment designates that any right not specifi-cally given to the federal government is reserved to the states individually. 130 Through the 10th Amendment, states claim control over education within their boundaries.131 This includes control over education within juvenile correctional facilities.

313 Across the nation, there are more than 50 different ways to implement education.132 Each state constitution and the District of Columbia mandates its own creation of a public education system.133 Within the states, disparity exists in the level of detail included in each state’s constitutional education provision.134 For example, some state constitutions include language about public school funding, the age of students, and the length of the school year.135 Thirty-seven state constitutions “include lan-guage [about] religious restrictions.136 Nine state constitutions

314

128. 315 Id. at 694.

129. 316 Id. at 710.

130. 317 U.S. Const. amend. X.

131. 318 Parker, supra note 119, at 1

132. 319 Id.

133. 320 Id. at 1–2. “Because Washington, D.C., is not a state,” it has no constitution. Id. Instead, Washington D.C. “uses the [U.S.] Constitution” in place of a state constitution. Id. “However, [since] there is no mention of public education in the [U.S.] Constitution,” Wash-ington D.C. has “no constitutional foundation for public education.” Id.

134. 321 Id. at 1.

135. 322 Id.

136. 323 Id.

324 87

325 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

326

329 “require education for students with disabilities.” 137 Thirty state constitutions provide specifications for higher education.138

330 Each when state constitutions do include specific provisions for education; they often use vague language to describe pre-cisely how those provisions must make public education availa-ble to students.139 The most frequently used phrases are “thor-ough and efficient,” “general,” and “uniform.” 140 The importance of a “general diffusion of knowledge” to “secure to the people the advantages and opportunities of education” seems to be well understood; however, just what constitutes an adequate education is so vague that it leads to problems in school systems at large, and especially in detention centers.141

331 Where some state constitutions specifically lay out the foundation of their education system, others leave much of this up to the legislature.142 To complicate matters, some of the ed-ucation provisions in state constitutions are so out of date that they are virtually irrelevant today. For example, Alabama’s con-stitution still includes language about segregation in schools based on race.143 And the state legislature struck down two bal-lot measures to eliminate the language.144 This gridlock illus-trates why many advocates have turned to the national govern-ment for education mandates.

332 Justice Thurgood Marshall stated in his Rodriguez dissent that education adequacy standards are “unintelligible and with-out directing principle.” 145 Indeed, today the vague and outdat-ed language used in many state constitutions to generalize ade-quate education has led to a slew of court cases across the nation. In Kentucky, the Supreme Court held in Rose v. Coun-

333

137. 334 Id.

138. 335 Id.

139. 336 See, e.g., the language highlighted in Molly A. Hunter, State Constitution Educa-tion Clause Language, EDUCATION JUSTICE, http://www.edlawcenter.org/assets/files/pdfs/State%20Constitution%20Education%20Clause %20Language.pdf (last visited Apr. 27, 2017).

140. 337 See id.

141. 338 See id.

142. 339 See id.

143. 340 Id.

144. 341 Parker, supra note 119, at 3.

145. 342 411 U.S. at 90 (Marshall, J., dissenting).

343 88

344 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

345

346 2]Education Systems in Juvenile Detention Centers

347

348 cil for Better Education, Inc.146 that schools must provide edu-cation that promotes sufficient oral and written communication skills; knowledge of economic, social, and political systems; un-derstanding of government processes; knowledge of mental and physical wellness; grounding in arts; and training in academic or vocational fields to prepare for a career and to compete in the job market.147 However, not all states employ these stand-ards alike.

349 State courts have grappled with many questions in examin-ing plaintiffs’ claims that education is inadequate. Among those questions is how adequacy should be defined;148 how to proper-ly measure adequacy of education;149 if a state can rely upon standardized testing results to assess adequacy of teaching and learning;150 and what “pedagogical services” are important for an adequate education. 151 Since each state gets to answer these questions individually, there is no consistent, nationwide an-swer.152 Additionally, some states do not specifically address ed-ucation for students with disabilities.153 That gap is especially important for youth in juvenile detention centers, because they “are more likely to have a special education disability as com-pared with the general population.” 154 Therefore, although ed-ucation is vitally important to all children, especially those in detention centers, educational resources often fall short in ad-dressing the needs of offenders.

350 III. PROBLEMS WITH EDUCATION WITHIN JUVENILE

351 DETENTION CENTERS

352 Juvenile offenders contained in detention centers face vari-

353

146. 354 790 S.W.2d 186 (Ky. 1989).

147. 355 Id. at 212.

148. 356 See Bd. of Educ. v. Nyquist, 439 N.E.2d 359 (N.Y. 1982).

149. 357 See Campaign for Fiscal Equity, Inc. v. State, 655 N.E.2d 661 (1995).

150. 358 See Kagan, supra note 9, at 2255.

151. 359 Id.

152. 360 See id.

153. 361 Parker, supra note 119, at 1.

154. 362 Kevin W. Alltucker et al., Different Pathways to Juvenile Delinquency: Characteris-tics of Early and Late Starters in a Sample of Previously Incarcerated Youth, 15 J. OF CHILD AND FAM. STUD. 475, 481 (2006).

363 89

364 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

365

368 ous problems when it comes to receiving an adequate educa-tion. The analysis below explains the problems at a national level. The final two sections will address how these problems have been discussed at national and state levels; then possible solutions will be articulated.

369 In many juvenile detention facilities, over- crowding, abuse, and inadequate services “are the norm rather than the excep-tion.” 155 Policies like assessing educational needs of each juve-nile admitted to the facility are sporadically applied.156 School records are seldom forwarded from the offender’s home dis-trict, which makes it difficult to reach the individual student’s needs.157

370 Within juvenile detention centers, classes are not always held or are held infrequently.158 So, some juvenile delinquents forfeit education entirely for lengthy periods of time; or they get only a fraction of state-mandated minimum instructional time.159 Since the average stay of an incarcerated youth is six months, 160 if he or she does not keep up in school during these months, an entire year of education can be affected. Thus, that short stay in a detention facility can cause a negative ripple ef-fect that alters the entire middle school or high school experi-ence.161

371 The negative ripple is accentuated by the fact that educa-tional resources are sparse within juvenile detention centers.162 Many facilities lack basic education materials, such as books, teachers, and classrooms.163 Additionally, juvenile detainees of-ten must make do with limited instructional time, curriculum, and teachers with no standard teacher training.164 Both the

372

155. 373 See, e.g., Douglas E. Abrams, Reforming Juvenile Delinquency Treatment to En-hance Rehabilitation, Personal Accountability, and Public Safety, 84 OR. L. REV. 1001, n.9 (2005).

156. 374 See 2014 Facility Practices and Services, supra note 16.

157. 375 Robert B. Rutherford, Jr. et al., Special Education in the Most Restrictive Environ-ment: Correctional/Special Education, 19 J. SPEC. EDUC. 59, 65 (1985).

158. 376 See Twomey, supra note 6, at 771.

159. 377 Id. at 767–67, 776.

160. 378 Leone, supra note 48, at 47.

161. 379 See id.

162. 380 See Twomey, supra note 6, at 767.

163. 381 Id.

164. 382 Id.

383 90

384 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

385

386 2]Education Systems in Juvenile Detention Centers

387

388 teachers and the students working in juvenile detention facili-ties are put at a disadvantage when resources are not provided and when teachers are not properly trained.

389 Many students within juvenile detention centers suffer from mental health disorders, yet teachers are often unequipped to accommodate special needs. 165 Up to 70% of incarcerated youth have learning disabilities.166 However, in a study of correctional facilities in several southern states, researchers found that only 30% of youth in detention centers were given required services in line with federal disability mandates.167 According to the In-dividuals with Disabilities Act (IDEA), incarcerated youth with learning disabilities should receive instruction according to an Individual Education Plan (IEP), which is a learning plan draft-ed by psychologists and school officials, and tailored to the needs of each student with a learning disability.168 However, ju-venile detention centers often fall short in providing counsel-ing, speech therapy, physical therapy, recreation, and other re-habilitation services.169

390 Youth placed in the juvenile justice system often have seri-ous educational and mental health needs due to learning disa-bilities, family situations, or failures of the public education sys-tem. As discussed previously, education helps prevent crime in the first place and reduce recidivism. Yet, “many [incarcerated juveniles] perform below grade level,” and “for most . . . correc-tional education services are their last exposure to formal edu-cation.” 170 One study showed 32% of students in detention cen-ters read at or below 4th grade level, 27% at 5th- or 6th-grade level, 20% at 7th- or 8th grade level, and 21% at or above 9th grade level.171

391 Youth admitted to detention centers are often behind in school prior to entering the facilities and are at high risk to fall

392

165. 393 Leone, supra note 48, at 46.

166. 394 Id.

167. 395 Harriet R. Morrison & Beverly D. Epps, Warehousing or Rehabilitation? Public Schooling in the Juvenile Justice System, 71 J. NEGRO EDUC. 218, 224 (2002).

168. 396 The Individuals with Disabilities Act, 20 U.S.C. § 1412 (2016).

169. 397 Twomey, supra note 6, at 775.

170. 398 MCCORD ET AL., supra note 1, at 189.

171. 399 Id.

400 91

401 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

402

405 further behind.172 In fact, in one study “75 percent of students in custody advanced less than a full grade level per year while in custody.” 173

406 Consistent education is important for even students who spend just a few days in a detention center because when youth are released, it becomes more difficult to re-enroll if the of-fender has fallen behind his classmates.174 Few juveniles re-enroll in public school upon release—just 12% of formerly in-carcerated youth out of a pool of 759 had completed a high school degree or GED after release from detention in 2004.175 Therefore, adequate education is vital for offenders while they are still in juvenile detention, because that may be the last op-portunity many youth have to gain an education.

407 IV. CLASH BETWEEN FEDERAL AND STATE LAWS

408 This Part summarizes the various federal and state educa-tion policies for juvenile detention centers. It introduces why and how the federal government has imposed laws on a national level. It also discusses how those federal laws fit with state con-stitutions. This Part will illuminate why the national govern-ment should not and cannot impose statutes upon the states to mandate educational systems. The most the national govern-ment can do is provide incentives for states to align policy with higher standards.

409 A. Federal Laws Addressing Education

410 Although both education and juvenile justice systems are di-rectly governed by individual states, the Juvenile Justice Delin-quency Prevention Act created federal leadership in reform and

411

172. 412 Id.

173. 413 Id. at 190.

174. 414 Id.

175. 415 Michael Bullis et al., The Importance of Getting Started Right: Further Examina-tion of the Facility-to-Community Transition of Formerly Incarcerated Youth, 38 J. SPEC. EDUC. 80, 80 (2004).

416 92

417 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

418

419 2]Education Systems in Juvenile Detention Centers

420

421 treatment of juveniles.176 This Act provided that states receiving federal formula grants had to comply with certain mandates as well as monitor and improve correctional education services.177 Following the initial Act, Congress proposed the Individuals with Disabilities Act (IDEA), 178 then President Bush introduced the No Child Left Behind Act (NCLBA),179 and President Obama presented the Correctional Education Package (CEP). 180 Each of these were initiatives to address public educa-tion at large and for individuals in juvenile detention.

422 Importantly, IDEA requires education services for children with disabilities in juvenile detention.181 The NCBLA requires states to monitor and improve correctional education services to receive federal funding.182 The CEP aims to “enforce the rights of incarcerated youth to a quality education.” 183 These three statutes, however, simply provide incentives for change and best practices. The federal government offers states fund-ing, but accepting that funding is up to the states. States can decide not to accept grants. The initiatives are an apple and not a bludgeon. States can choose to follow the Act and receive fed-eral grants, but the federal government has been appropriately restrained and has not taken control from state decision-makers who know the local constraints. Ultimately, the power to make lasting change is still constitutionally reserved to the individual states.

423 B. Individuals with Disabilities Act.

424 The IDEA was originally founded in the Education for All Handicapped Children Act (EHA), which was enacted in 1975.184 In 1990, the EHA was amended and renamed the

425

176. 426 Twomey, supra note 6, at 770.

177. 427 MCCORD ET AL., supra note 1, at 155.

178. 428 The Individuals with Disabilities Act, supra note 168.

179. 429 No Child Left Behind (NCLB) Act of 2001, 20 U.S.C.A. § 6301 et seq. (2001).

180. 430 CORRECTIONAL EDUCATION GUIDANCE PACKAGE, supra note 51.

181. 431 The Individuals with Disabilities Act, 20 U.S.C. § 1412 (2016).

182. 432 See 20 U.S.C.A. § 6301 § 4.

183. 433 CORRECTIONAL EDUCATION GUIDANCE PACKAGE, supra note 51.

184. 434 94 P.L. 142, 89 Stat. 773 (1975).

435 93

436 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

437

440 IDEA.185 The goal of the legislation was to ensure a “free ap-propriate public education” in the “least restrictive environ-ment” for students.186 States accepting federal grants must iden-tify and evaluate qualifying students and create an Individualized Education Program (IEP) for each student with a learning disability.187 Then the state must facilitate the IEP through “related services,”188 such as counseling, speech thera-py, and other rehabilitation services. This legislation applies to all students ages 3 to 21 with learning disabilities.189 Since so many offenders have learning disabilities, this statute applies to many students in detention centers. Yet, delinquents without learning disabilities do not benefit from this legislation. Addi-tionally, the statute eliminates the requirement for educational services for juveniles ages 18 to 21, sentenced to adult facilities, who were not diagnosed with a learning disability prior to sen-tencing.

441 C. The No Child Left Behind Act

442 The NCLBA was spearheaded by President George W. Bush and passed both Houses of Congress in 2001.190 The Act explicitly addresses the needs of all juveniles in detention. It provides that before states receive federal education funding each must monitor and improve correctional education ser-vices.191 According to the NCLB, teachers must 1) be certified, 2) demonstrate competence in each subject they teach, and 3) must have at least a bachelor’s degree.192 These are basic re-quirements. However, even these requirements are not always

443

185. 444 Yell, supra note 96, at 226.

186. 445 20 U.S.C. § 1412. The IDEA broadly defines disabled as a child: (i) with mental re-tardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, au-tism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.

187. 446 Id. at 774–75.

188. 447 Id. at 775.

189. 448 See 20 U.S.C. § 1412(a)(1)(A) (2000).

190. 449 20 U.S.C.A. § 6301 et seq.

191. 450 Id. at § 3.

192. 451 Id. at § 4.

452 94

453 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

454

455 2]Education Systems in Juvenile Detention Centers

456

457 fulfilled.193

458 However, the Act does not have teeth to enforce adherence. Some states violate requirements and still accept funding.194 In fact, one study found that at least nineteen states violated the Act’s requirements and left juvenile justice schools out of their Adequate Yearly Progress assessments.195 Some consider the limited consequences for violations as a failing of the legisla-tion.196 However, since the federal government has a limited constitutional foundation for involvement in education within the states, the legislation can only be an incentive. Therefore, while funds could be withheld, noncompliant states cannot be punished. There is no private cause of action for violations.197 So consequences for these violations must come from a state level.

459 D. Correctional Education Guidance Package

460 President Obama announced an initiative in 2014 with an aim “to help all young people succeed in school and reach their potential in life.” 198 The initiative created a 501(c)(3) charity to “address persistent opportunity gaps facing boys and young men of color and to ensure all youth can reach their full poten-tial.” 199 This initiative was part of President Obama’s My Brother’s Keeper initiative and included a plan to reform juve-nile and criminal justice systems to “enforce the rights of incar-cerated youth to a quality education.” 200 The goal was that “by 2020 [the U.S. would] have the highest proportion of college graduates in the world and that all Americans [would] complete

461

193. 462 Twomey, supra note 6, at 771.

194. 463 Id.

195. 464 Bruce I. Wolford, Juvenile Justice Education: “Who is Educating the Youth” 4 (2000), available at http://www.edjj.org/Publications/educating_youth.pdf; Juvenile Justice Ed-ucational Enhancement Program, 2004 Annual Report to the Florida Department of Education 84 (2004), available at http://www.criminologycenter.fsu.edu/ jjeep/research-annual-2004.php.

196. 465 Id. at 779.

197. 466 Id.

198. 467 CORRECTIONAL EDUCATION GUIDANCE PACKAGE, supra note 51.

199. 468 About Us, MY BROTHER’S KEEPER ALLIANCE, supra note 10.

200. 469 CORRECTIONAL EDUCATION GUIDANCE PACKAGE, supra note 51.

470 95

471 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

472

475 at least one year or more of college or career training.” 201

476 This initiative addressed the situation of those in juvenile detention centers; especially the disproportionate number of minority, poor, and disabled individuals.202 By targeting young men of color, the initiative sought to promulgate a solution within juvenile correctional facilities. 203 This initiative is an ex-ample of a solution from the national government that does not overstep the bounds of the Constitution. Using funds from the 501(c)(3) to encourage change, this solution appropriately lay-ers a federal initiative on top of efforts by the states individual-ly.

477 E. State Sovereignty and Education

478 National incentives cannot be forced upon states, but na-tional resources could and should be used to gather data for state decision-makers to consider. Data collected on the juve-nile justice system differ from state to state, and little national data are collected, which makes tracking changes in practice difficult.204

479 The Office of Juvenile Justice and Delinquency Prevention has contracted with the National Center for Juvenile Justice to collect and analyze juvenile court statistics since 1975.205 How-ever, there is no published national data on the number of juve-niles “convicted by offense” or “incarcerated by offense.” 206 No data are even collected nationally on “sentence length, time served in confinement, or time served on parole.” 207 Collection of this data is one area where the national government should be more involved because the data provides a significant benefit to states as juvenile education decisions are made within each state. This data would make a difference in the legislative ac-tions taken by individual states. If legislators know how their

480

201. 481 Id.

202. 482 Id.

203. 483 About Us, MY BROTHER’S KEEPER ALLIANCE, supra note 10.

204. 484 MCCORD ET AL., supra note 1, at 156.

205. 485 Id. at n. 1.

206. 486 Id. at 156.

207. 487 Id.

488 96

489 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

490

491 2]Education Systems in Juvenile Detention Centers

492

493 state is doing compared to other states, they will have reason to follow successes or distinguish from failures when constructing their own legislation.

494 The role of the federal government should be one of high-lighting best practices and encouraging states to advance from the status quo. The federal government should incentivize states to make changes to juvenile justice systems by gathering information about current practices and even providing federal funding. However, there is no constitutional provision for such federal roles to have the necessary “teeth” to enforce national mandates, as such an eventuality would, by its very nature, be unconstitutional.

495 V. ARGUMENTS AND REMEDIES FOR STATES

496 At any stage during the court process, judges may inquire if a juvenile “pose[s] a threat to the community, will be at risk if returned to the community, or may fail to appear at an upcom-ing hearing.” 208 A juvenile “may also be detained for evaluation purposes.” 209 Over time the number of juveniles detained has fluctuated, but “the percentage of cases detained has remained steady.” 210 What this means is that if a juvenile’s case goes be-fore a judge that youth is as likely now as in the past to be placed in detention. This continuity demonstrates the im-portance of education within juvenile justice systems.

497 Even short periods of time in residential detention centers can disrupt the lives of some detained youth because it inter-rupts their schooling.211 Just a few days of school missed may “increase . . . educational difficulties” for marginal students.212 Incarcerated offenders already have major disruptions to their lives and generally are not the types of students who would have the motivation to get caught up when behind in school Education within juvenile justice can be the means to pull these

498

208. 499 Id.

209. 500 Id.

210. 501 Id.

211. 502 See id. at 178.

212. 503 Id.

504 97

505 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

506

509 individuals out of a cycle of crime and into a realm of success.213 Working toward remedies is not a simple task; however, just as pedagogical techniques evolve to account for classroom

510 needs, policies can also expand to account for absentee stu-dents. Many schools are already equipped to deal with pro-longed absences for children who have medical leave. By using the same type of policies for juvenile offenders, students in de-tention centers could stay up to speed with their classmates. School districts, juvenile detention centers, and individual teachers can coordinate to deliver work packets and homework that an incarcerated student would otherwise miss. To the ex-tent that teachers utilize methods that are more interactive in the classroom, students that are in juvenile detention centers could watch remotely.

511 Modern technology makes it especially feasible to deliver assignments to incarcerated students through the internet. Teachers from the incarcerated student’s home school district could even record the lectures they deliver to students in the classroom, and these recordings could be made available to in-carcerated youth. Granted, it will require some extra work from the home teacher and school district, but the extra work can be minimal. A teacher can email worksheets, reading assignments, and recordings for the incarcerated student to review.

512 Recognizing that even minimal extra work may be burden-some to teachers, especially in resource-poor schools that ser-vice many at-risk students, administrators may take the lead in functioning as liaisons between the regular teacher and the ju-venile detention center. By utilizing technology, the minimal additional work for teachers and administrators may make dras-tic positive impacts for incarcerated youth.

513 To implement such a program, however, school districts and juvenile detention centers will need to have better coordi-nation. School records should be promptly delivered to the de-tention center so IEPs can be executed. If there was better communication between school districts and detention centers, juvenile offenders would not necessarily need an additional screening for educational needs when they enter a facility. Us-

514

515 213.Leone, supra note 48, at 49.

516 98

517 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

518

519 2]Education Systems in Juvenile Detention Centers

520

521 ing federal gathered statistics about communication between school districts and juvenile detention centers, states could im-plement policies that would save funds in certain areas while making resources available for other needs within the juvenile justice education system.

522 Although policy changes require adequate funding, the costs saved by one policy change can fund another change. For in-stance, the resources saved by communication between home schools and juvenile detention facilities could remove the need for duplicative educational assessments for many minors enter-ing detention facilities. Those funds could then be used to pro-vide better resources, such as books and computers, in deten-tion center classrooms.

523 VI. CONCLUSION

524 Juvenile justice systems need reform. It is up to states to ul-timately make the necessary changes. Yet, the national govern-ment can play an essential role in incentivizing progress and supplying data to assist in the “vitally important and cost-effective strategy for ensuring [incarcerated juveniles] become productive members of their communities.” 214

525 Currently, juvenile offenders enter the system with limited school skills and often struggle with learning disabilities.215 However, as incarcerated individuals are educated the detention center environment improves and individual youth are empow-ered to rehabilitate and successfully reintegrate into society up-on release.216 Education also lowers recidivism rates, which benefits the community at large because there is less crime and less money spent on incarceration.217

526 Education programs are as varied as the number of states in the U.S., 218 and that variety is not necessarily bad; it can allow states to try different solutions and learn from one another’s experiences. The U.S. Constitution is silent on the issue of ed-

527

214. 528 CORRECTIONAL EDUCATION GUIDANCE PACKAGE, supra note 51.

215. 529 See OPEN SOCIETY INSTITUTE, supra note 4, at 2–3.

216. 530 See INSTITUTE FOR HIGHER EDUCATION POLICY, supra note 42.

217. 531 RAND CORPORATION, supra note 4.

218. 532 Parker, supra note 119, at 1.

533 99

534 SULLIVAN MACRO PUBLISH.FINAL.DOCX (DO NOT DELETE)10/23/2018 7:28 PM

535

538 ucation. Therefore, the federal government cannot mandate how a state must form its own educational system. Neverthe-less, the federal government can and has incentivized improve-ments in education at large, including education within juvenile detention centers. Federal funding that enables states to change and improve is beneficial. While the federal government cannot constitutionally mandate those changes, as state and federal ac-tions align, juvenile detention centers will be better able to ful-fill their purpose of rehabilitating youth.

539 *Karen Sullivan

540

541 *Karen Sullivan is a recent graduate of the J. Reuben Clark Law School at Brigham Young University. She first became involved with education law and policy while covering the educa-tion beat at a local television station. Her interest in education for youth in the juvenile justice system stems from her grandfather who was a clinical psychologist and worked extensively with prison populations.

542 100

543 Copyright of Brigham Young University Education & Law Journal is the property of Brigham Young University Law School and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.