The Challenge of Following Education Legislation in Confinement Education Programs
By Brooks, Carol Cramer
Karen is the only certified special education teacher in a 40- bed, state-operated residential treatment program. She has been teaching for two years. Her caseload recently exploded to 27 students, three of whom were out of compliance with the requirements of the Individuals with Disabilities Education Improvement Act (IDEA) of 2004 when they entered the facility. After multiple requests for records from the students’ most recently attended public schools failed, Karen sought assistance from the courts to attain additional educational information. Once she received the records, Karen contacted parents and school districts; organized evaluation review teams, arranged for mandated evaluations; wrote and conducted multidisciplinary evaluation team reports and individualized education programs; and taught the students who required a self-contained program according to their individualized education programs. Karen also provided consultation services, including individualized support, for the special education students in general education courses. In addition, Karen provided the general educators with recommendations for modifying the general curriculum to accommodate the needs of special education students in their classrooms. Karen’s frustrations are typical of teachers working with youths in confinement. Further complicating the delivery of quality education services in detention are the environmental restrictions of safety, security and treatment, as well as the plethora of rules, regulations, laws, budget constraints and political issues dictating practice in juvenile justice facilities. Lawmakers wrote federal and state laws and regulations governing the education of youths with K-12 public school resources and environment in mind, not the correctional environment. Although detention and correctional educators agree with the underlying principles of federal legislation governing delivery of educational services, the logistics of implementing the legislation in detention and corrections (confinement) education programs is challenging.
Federal legislation governing the delivery of education in confinement facilities includes IDEA, the No Child Left Behind Act (NCLB) of 2001, and the Family Educational Rights and Privacy Act (FERPA). Instead of providing a comprehensive review of these pieces of legislation, this article will focus on the guiding principles of the legislation, the obstacles to implementing legislation in confinement education programs and recommendations for solution- focused practice.
Individuals with Disabilities Education Improvement Act
IDEA is federal legislation requiring that eligible children and youths with disabilities receive free, appropriate public education, including special education and related services, to the extent possible in the same setting/classroom as their nondisabled peers.1 The cornerstones of the legislation are free, appropriate public education; the least restrictive environment; individualized education programs; and student and parent involvement at every point of the decision-making process.
Free, appropriate public education refers to the educational entitlement of a child with a disability to receive an education provided for or by the public school system that complies with an individualized education program and the law and that meets the specific needs of the youth at no cost to the student and his or her family. The least restrictive environment is where a student can receive an appropriate education designed to meet his or her special education needs, while – to the maximum extent possible – still being educated with nondisabled peers in the general education curriculum. The individualized education program is a written plan for the student’s education, guided by the outcomes of a multidisciplinary evaluation and developed by the student, parents/ legal guardians and education staff. The individualized education program outlines the special education placement, services, instruction and goals required to meet the educational needs of the student during the placement and in transition. Student and parent involvement is critical to the special education process. Consent and participation throughout the process is sometimes mandated (initial evaluation) and always encouraged (meetings scheduled at the convenience of the parents/legal guardians).2
To be clear, IDEA requires confinement education programs to provide appropriate special education services. Contrary to the belief of some, education programs in juvenile detention centers are not exempt from providing special education services to their populations. Obstacles that make implementing IDEA challenging in confinement education programs include lack of information about the requirements in the law, funding, staff resources, parent and public school personnel involvement, and knowledge of the student’s previous and next placement to adequately plan for transition. Gaps in educational services, which are typical for the transient juvenile justice population, further exacerbate the efforts to obtain educational records. The results are an inability to meet special education timelines; outdated individualized education programs, evaluation reports, and progress reports on goals and objectives; and a failure to secure required supplemental services, which further delays the delivery of a quality individualized education program.
The portrayal of Karen in the opening paragraph highlights the dilemma for many small confinement facilities where a small number of teachers, only one of whom may be special education certified, deliver educational programming. The number of special education teachers in many facilities (both small and large) has not kept pace with the increase in the number of students requiring services. In addition, similar to small, rural public school systems, confinement education programs have limited access to qualified evaluators and supplementary service providers, resulting in noncompliance with requirements of special education laws.
While certainly not true of all students, parents and public school systems, there is less involvement by parents/legal guardians in the special education process once a child with special education needs is involved in the juvenile justice system. This is especially true in regionally based correctional/treatment facilities where access to parents/legal guardians for special education meetings is typically poor. Many parents are not aware of their option to assign a representative to attend special education meetings on their behalf. The same lack of participation applies to some public school systems once these special education students are no longer attending classes in their district, even when the absence is temporary. Confinement education programs struggle to get involvement from local district representation at special education meetings.
The design for the delivery of special education services in confinement education programs varies across the nation. The Pathfinder Education Program in Nebraska’s Lancaster County Juvenile Detention Center uses a consultant provided by the local school district who maintains responsibility for all special education services and documentation. The students never become the educational “property” of the confinement facility. Other confinement education programs, such as Kalamazoo Juvenile Home Schools in Michigan, receive funding through special education dollars and are able to hire a full complement of certified special education teachers.
For most programs, overcoming the obstacles of implementing IDEA will involve a design change of all or part of the current school program. Given the increase in the number of students in confinement education programs eligible for special education services, operating entities should hire additional special education staff and increase the number of contracted hours for ancillary/ supplemental services staff (e.g., speech and language service providers). To increase parent/legal guardian participation in the special education process, confinement education programs could schedule special education meetings in conjunction with facility visitations, in the evenings or on the weekends. Confinement facilities could also acquire the technology necessary to use videoconferencing and teleconferencing to connect with parents/ legal guardians when scheduling and distance is an obstacle to involvement. Key to the delivery of quality special education programs are the relationships between the education program and the juvenile justice service providers, the public school system and the community. Improved communications between these key stakeholders are especially beneficial for information transfer to the confinement facility (e.g., access to youths’ individualized education program within 24 hours of admission) and transition planning (e.g., a student’s public school schedule created prior to release from the confinement facility).
No Child Left Behind Act
NCLB, which includes Title I, is federal legislation designed to help close the achievement gap between disadvantaged and minority students and their peers by defining success in terms of student achievement and investing in the achievement of every child. NCLB incorporates four principles: stronger accountability for results, increased flexibility and local control, expanded options for parents, and an emphasis on research-based teaching methods that work.3 According to the National Evaluation and Technical Assistance Center for the Education of Children and Youth Who are Neglected, Delinquent or At-Risk, NCLB’s Title I, Part D provides financial assistance to education programs for youths in state-operated institutions or community day programs. The goals of Title I, Part D include improving educational services so youths eligible for Title I funds can achieve state standards, providing eligible youth transition services from institutions to school and work and providing dropout prevention services through the development of support systems.4 NCLB and Title I, Part D legislation promote the principles of accountability for learning, improved teacher quality, and instructional strategies and programs based on scientific research. NCLB measures the effectiveness of instruction/schools with the results of mandated state assessment tests aligned with a rigorous state curriculum in reading, math and science. Schools must maintain a level of adequate yearly progress or be subject to a continuum of interventions, including school restructuring and parental choice to transfer their child to a high-performing school. NCLB requires that every classroom have a “highly qualified” teacher who knows the standards, knows the materials and knows how to teach the material. This requirement applies only to the core subject areas identified in NCLB as English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography. Finally, NCLB promises federal support to education programs and interventions that can demonstrate effectiveness through scientific research. Confinement education programs must meet the expectations of some of the requirements of NCLB but are exempt from other mandates within the legislation.
Some mandates of NCLB are unattainable for confinement education programs. For example, requiring test-resistant students who may have just arrived at the confinement facility to participate in state achievement testing because the exam time happens to coincide with their arrival is poor testing protocol, produces invalid results and does not address the intended purpose. Departments of education cannot legitimately measure the effectiveness of a confinement education program based on the state assessment test scores for students admitted days earlier and who will be gone within the semester. Therefore, holding confinement education programs to the adequate yearly progress standards is unrealistic. In addition, the student’s involvement with the juvenile justice system trumps parental choice for schools not meeting adequate yearly progress. They have no rights to transfer their child out of the confinement education program.
Because a limited number of teachers teach multiple subject areas for multiple-level students (elementary through high school), Title I, Part D exempts education programs in state-operated institutions from the highly qualified teacher requirements. This exemption should also include the state assessment testing and adequate yearly progress requirements and should extend to detention education programs as well. Until it does, confinement education programs must be creative in their approaches.
The Whitehall Public School District operates the school program in the Muskegon County Juvenile Detention Center in Michigan. In order to address the requirements of highly qualified teachers, the district rotates such teachers between the public school classrooms and the detention center on an hourly basis. The Indiana Juvenile Detention Association Educators Group chose to create a standard curriculum, annually evaluated and updated to assure alignment with state standards, to meet the requirement of a rigorous curriculum in math, reading and science. The group’s goal is for all detention centers in the state to adopt the proposed best practice standards.
Family Educational Rights And Privacy Act
FERPA is a federal law that protects the privacy of students by limiting who can have access to students’ education records without parental consent and by providing parents the right to access and amend their children’s education records. FERPA also allows parents to approve or deny consent to disclosures of personally identifiable information and outlines a grievance process with the U.S. Department of Education if there is a violation of their rights. Any transfer of student information requires a prior written consent by parent/legal guardian (or students 18 or older) with the exception of the following parties:
* Those seeking properly designated directory information (portion of the record that, if disclosed, would not generally be considered harmful or an invasion of privacy);
* Those with legitimate educational interest;
* Other schools into which the student is transferring or enrolling;
* Specified officials for audit or evaluation purposes;
* Appropriate parties in connection with financial aid;
* Organizations conducting certain studies for or on behalf of the school;
* Accrediting organizations;
* Those with judicial orders or lawfully issued subpoenas;
* Responders to health and safety emergencies; and
* State and local authorities within a juvenile justice system pursuant to specific state law.5
FERPA recognizes the privacy rights of individuals as well as the confidentiality obligations of an agency to protect that privacy by not disclosing or transmitting information to unauthorized individuals or agencies. The FERPA legislation defines educational records as all records, files, documents and other materials containing information directly related to a student and maintained by the education agency or institution or by a person acting for such agency or institution.6 This includes all IDEA documents, K-12 health records (FERPA trumps the Health Insurance Portability and Accountability Act privacy requirements) and disciplinary records when transferring from school to school. All confinement education programs must comply with the requirements of FERPA.
The ability to transfer educational records efficiently for students enrolled in confinement education programs is critical to the planning and delivery of a quality, individualized program. A variety of factors impede the transfer of records, some of which are inherent to the confinement process. Even with a functional system for requesting records, many students in detention education programs are enrolled and released before records arrive. Without timely receipt of records, confinement educators must “start over” with diagnostic and informal testing and guess appropriate instructional starting points. Even more difficult than a transfer into the facility, school personnel of a detention education program rarely know when a student is leaving or where a student is going in order to transfer educational records to the next placement. It is often weeks before the detention education program receives a request for records, if at all, adding to the cycle of frustration for the student and the sending and receiving education programs.
FERPA clarifies individual and agency obligations when transferring educational records and sharing information. Confinement education programs benefit from FERPA in that it expedites the transfer of records by giving their request for records legal standing. Common recommendations to resolve this problem include simplifying requests and building relationships with the records personnel from the local school districts. Programs that continue to struggle with getting education records in a timely manner should consider putting a FERPA statement on the records request form citing exception numbers 2,3 and 10 as a gentle reminder to the local school districts. Public school systems have a legal mandate to provide educational records to confinement education programs. State departments of education and local school districts should develop a statewide student management information system. Confinement education programs must advocate for inclusion in that system so that wherever a youth enrolls in school, his or her records are automatically updated and available to those with legitimate educational interests.
Innovative Solutions and Broad Interpretations
Karen’s caseload has become more manageable as students graduating from the program are replaced with students who do not require special education services. The facility hired another certified special education teacher who has assumed the caseload of the special education students receiving instruction in the general education classrooms. The contracted school social worker schedules evaluations and the multidisciplinary evaluation team meetings. These changes to the school program design give Karen the opportunity to spend more time doing what she does best – teaching her students.
Implementing some of the mandates of federal education legislation in a confinement education program is a challenge that requires the attention of educators and a creative leadership team. Confinement education programs are unique education programs – certainly different from the public school systems the lawmakers had in mind. This uniqueness requires innovative solutions and broad interpretations of the guiding principles of the legislation governing the delivery of educational services in confinement settings.
ENDNOTES
1 Burrell, S. and L. Warboys. 2000. Special education and the juvenile justice system. Washington, D.C: U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. Available at www.edjj.org/publications.
2 National Dissemination Center for Children with Disabilities (NICHCY). Building the legacy: Individuals with Disabilities Education Act amendments of 2004. Washington, D.C: U.S. Department of Education, Office of Special Education Programs. Available at www.nichcy.org/training/contents.asp. 3 U.S. Department of Education. 2004. Four pillars of NCLB. Available at www.ed.gov/nclb/ overview/intro/4pillars.html.
4 National Evaluation and Technical Assistance Center for the Education of Children and Youth Who Are Neglected, Delinquent, or At- Risk (NDTAC). What is Title I, Part D? Retrieved Oct. 9, 2007, from www.neglected-delinquent.org/nd/aboutus/background.asp.
5 National Forum on Education Statistics. 2006. Forum guide to the privacy of student information: A resource for schools. Washington, D.C: U.S. Department of Education, National Center for Education Statistics.
6 National Forum on Education Statistics. 2004. Forum guide to protecting the privacy of student information: State and local education agencies. Washington, D.C: U.S. Department of Education, National Center for Education Statistics.
Carol Cramer Brooks is the former director of the Program Development and Support Services Division of the Michigan Bureau of Juvenile Justice. Contributing to this article were Dr. Richard Krause, retired principal, and Randy Farmer, principal, Pathfinder Education Program, Lincoln Public Schools, Lancaster County (Neb.) Juvenile Detention Center; Jacque Reese, president, Council for Educators of At-Risk Delinquent Youth (CEARDY), Impact Education, Arkansas Department of Education; Patricia Moore, principal, KRESA, Kalamazoo County Juvenile Home Schools, Kalamazoo County (Mich.) Juvenile Detention Center; and Ginger Stawicki, education transition coordinator, Bartholomew County (Ind.) Youth Services Center.
Copyright American Correctional Association, Incorporated Feb 2008
(c) 2008 Corrections Today. Provided by ProQuest Information and Learning. All rights Reserved.