After six long years of litigation, a class of court-involved youth (children up to age 16 charged with delinquency in juvenile court or as "juvenile offenders" in adult court) reached a historic settlement ensuring their education rights upon return from incarceration and while in pretrial detention. The fight is not over for these students, whom some school personnel would rather not have to educate, but the litigation and the resulting court-ordered settlement have brought system-wide improvement that can surely be replicated in other jurisdictions.
The New York City public school system on a given day serves more than 1 million students. "Department of Education," Preliminary Mayor's Management Report 107–12 (2013). Each year, some 4,400 students are admitted to pretrial detention after being arrested and charged with delinquency or a crime. "Administration for Children's Services," Preliminary Mayor's Management Report 89–94 (2013). And hundreds of students spend months in post-adjudication juvenile facilities operated by or under contract with the state or city. N.Y. State Office of Children & Family Services, 2010 Annual Report: Youth Placed in OCFS Custody, Tables 1–12. All of these young people receive educational services while in custody, and most, when they are released, are of compulsory school age in our state and city. N.Y. Educ. Law § 3202; N.Y. City Chancellor's Regulation A-101. Every single child has a right to attend school, until age 21 or completion of a high school diploma. N.Y. Educ. Law § 3202.
But all too often we found that our clients—whether they had been in a court-ordered setting for only days in connection with a minor misdemeanor case or for more than a year on a more serious matter—were unceremoniously being barred at the schoolhouse door of their home schools when they returned. Youth returning from facilities after being sentenced were often not given credit for the work they'd done while away, or they were offered school placements in the wrong grade or without special education services to which they were entitled. These actions violated their rights to due process of law and to the protections of the federal Individuals with Disabilities Education Act (IDEA), the state constitution, and New York education law.
What Did These Students and Their Parents Experience at the Time We Filed Our Case?
• Flat-out refusals by their home schools to readmit the students. Plaintiff J.G., for example, returned from a residential placement, and the New York City Department of Education referred her to a high school, which turned her away the next day, then failed to offer her any school placement until nearly two months later after she filed this lawsuit.
• Delays and excuses for not reenrolling students.
• Students penalized because the City failed to enroll them in school. Plaintiff J.S., for example, a special education student, accrued an erroneous record of 48 absences during a period when the education department had failed to enroll him anywhere.
• Education records not being transferred from one school setting to the next.
• School placement in the wrong grades or in GED programs, despite the fact that the New York City Department of Education told students they would be attending high school and earning regular high school credits.
• De facto exclusion from school by being warehoused for weeks, months, or even years in educational settings that did not meet legal requirements. Plaintiff J.M., for example, a special education student, returned from detention and a placement, and was sent by the City to a "transitional center," where he was not awarded credits and did not receive special education services. After several months, the City finally placed him in a school placement that the school itself admitted was not appropriate. J.M. earned no credits for nearly two school years, and it took his counsel six months and a four-day hearing to obtain his school transcript and an accounting of his high school credits.
In New York, nearly two-thirds of students passing through court-ordered settings have special- education needs that have been identified—as in other jurisdictions, a far larger percentage than in the city's school population as a whole. Statistics kept by the New York City agency that administers juvenile-detention facilities reveal that at least 60 percent of the students in the juvenile-justice facilities receive special-education services. This information was formerly published on the agency's website, but the City has discontinued that practice. Based on our experience, there is no reason to believe that the student profile in detention has changed. For data on the New York City school population as a whole, see "Department of Education," Preliminary Mayor's Management Report, supra . See also Sue Burrell & Loren Warboys, "Special Education and the Juvenile Justice System," Juv. Just. Bull., July 2000, at ¶ 1 (nationally, as many as 70 percent of incarcerated youth have disabilities) (citations omitted).
Many students entering and leaving court-ordered settings suffer from mental-health issues, substance abuse, significant trauma histories, or all of these. Some young people in this group had been disengaged from school before being arrested, and were now ready to reengage. Others simply sought to continue their education without interruption. Many were court-mandated to attend school immediately upon returning to the community despite the obvious obstacles. On a case-by-case basis, through extensive advocacy, negotiation, and, far too often, administrative proceedings or litigation, we and our cocounsel were able to battle our clients back into appropriate school placements and services. (The Legal Aid Society and Advocates for Children of New York are cocounsel for the plaintiffs in the litigation we discuss here, and Dewey & LeBoeuf LLP participated as cocounsel pro bono.)
But this took far too long, risking our clients' further alienation from school and possible violations of conditions of release for a cohort of students already at grave risk of dropping out of school or falling behind irreparably. The problem, as it is in many other locations, was systemic. See D. Altschuler & R. Brash, "Adolescent and Teenage Offenders Confronting the Challenges and Opportunities of Reentry," 2 Youth Violence & Juv. Just., Jan. 2004, at 72–87; Ronald D. Stephens & June Lane Arnette, "From the Courthouse to the Schoolhouse: Making Successful Transitions," Juv. Just. Bull., Feb. 2000; He Len Chung, Michelle Little, Laurence Steinberg & David Altschuler, "Juvenile Justice and the Transition to Adulthood," at ¶ 4 (Network on Transitions to Adulthood, Policy Brief No. 20, Feb. 2005).
The problems our clients faced persisted despite our extensive pre-litigation efforts to negotiate with the New York City Department of Education and despite clearly established law supporting our clients' rights. In the litigation, we represented a class of New York City students who sued the New York City Department of Education and the New York State Education Department in federal court in December 2004, J.G. et al. v. Mills et al., No. 04 Civ. 5415 (E.D.N.Y.), challenging the City's and State's failure to ensure appropriate and timely transfer back to New York City community schools following detention or incarceration, and challenging the educational services provided in pretrial detention.
The Student Plaintiffs' Main Legal Claims
Federal due process. The plaintiffs contended they were deprived of their property right to education (set forth in New York State constitution, statutes, and regulations) without due process of law in violation of the Fourteenth Amendment to the U.S. Constitution. See Goss v. Lopez, 419 U.S. 565, 574–75 (1975). This deprivation was caused by exclusion of children from school by being denied readmission or enrollment for no legally permissible reason and without any notice or due process procedures, or de facto exclusion by being warehoused for weeks, months, or even years in educational settings that did not meet legal requirements. The plaintiffs also claimed a denial of education without due process because the education department did not award them credit for work successfully completed or notify them of the reasons for not granting credit. Because of the district's policies, students who moved between detention or placement mid-semester had no opportunity to earn credit for work completed.
IDEA. The federal statute guarantees all individual children with disabilities the right to a free appropriate education. 20 U.S.C. § 1400 et seq. The IDEA is a comprehensive law designed to rectify deficiencies in the educational opportunities afforded to students with disabilities, and it mandates very specific procedures and services for children with disabilities. The IDEA does not exempt students in or returning from court-ordered settings, or even those who have been temporarily removed from school. By its own terms, the law applies to "all children residing in the state between the ages of 3 and 21 inclusive, including children who have been suspended or expelled from school." 20 U.S.C. § 1412(a)(1)(A). In this case, the education department violated the IDEA rights of students with disabilities—a significant portion of court-involved students—by, among other things, failing to provide required evaluations of need, using boilerplate Individualized Education Programs (IEPs) instead of creating IEPs tailored to individual students' needs, failing to make placement decisions based on students' IEPs, and more.
New York State Constitution and Education Law. Article XI of the New York State Constitution requires a "system of free common schools, wherein all the children of this state may be educated." N.Y. Const. art. XI, § 1. This right requires a "sound basic education." Campaign for Fiscal Equity, Inc. v. New York, 100 N.Y. 2d 893, 906 (N.Y. Ct. App. 2003). New York Education Law section 3202 requires a public education, which includes the right to be in a public school for the purposes of earning a regular high school diploma. There is no exception for students who are returning from detention or incarceration. The plaintiffs argued that New York law creates property rights in education protected by the due process clause, which are also enforceable on their own. The plaintiffs also argued that students have protected liberty interests in the opportunity to achieve a diploma, which the defendants impaired by imposing diploma requirements and then denying the students the opportunity to take classes toward those requirements. See also N.Y. Educ. Law §§ 112, 3214, 3602, 4401 et seq.; N.Y. Comp. Codes R. & Regs. tit. 8, §§ 100, 101, 200 (additional sources of educational rights under state law and regulations).
The Defendants' Response and the Eventual Outcome
In response to the litigation, New York City's education department simultaneously opposed the students' claims in court and instituted substantial changes, particularly in the early years of the litigation. After much negotiation, the plaintiffs eventually secured a certified class and entered into a court-ordered settlement with the City in 2011. This followed a 2008 consent decree with the State, which guaranteed a period of oversight, monitoring, and technical assistance. J.G. v. Mills, No. 04 Civ. 5415 (E.D.N.Y.), ECF Nos. 155, 187-2.
In the end, our clients secured substantial injunctive relief going forward, along with compensatory reliefin the form of guidance meetings and access to tutoring, credit recovery, math and reading assistance, and referrals to vocational and adult education opportunities, which was available to thousands of students to whom the education department was required to send individual notices. The City's education department drafted, with input from the plaintiffs' counsel, a practical "best practices guide," which is posted on the agency's website and must be made available to all school personnel. Assisting Students Who Are Involved in Court-Ordered Settings: A Guide for New York City Department of Education Schools/Programs [intranet]; J.G. v. Mills, No. 04 Civ. 5415 (E.D.N.Y.), ECF No. 197-1. The state education department conducted audits of court-ordered school settings, issued guidance, and offered training and technical assistance for local school districts in the state, including an easy-to-use credit equivalency guide, translating the courses and credit system from state facilities to credits the city system recognizes.
Highlights of the relief (in addition to compensatory education services relief) secured on behalf of returning students are featured below. Under the court-ordered stipulation of settlement, the New York City education department must
• enroll students returning to New York City community schools from pretrial detention within two school days of discharge from the detention school
• provide a school placement to students returning to New York City schools from state juvenile custody within five school days of appearing at a New York City school enrollment location seeking enrollment
• provide a placement for students with disabilities returning from state custody, either in accordance with the student's last home district Individualized Education Plan (IEP) or a "Comparable Services Plan"
• develop a new IEP for students with disabilities returning from state custody
• require schools to enroll students once they have been assigned to the school by a department of education enrollment office
• for students returning directly from local detention to a New York City Department of Education community school, provide student records (e.g., transcripts, report cards, and education plans) from the student's time in custody to the student's community school
• request education records from state facilities for students returning from them
• prepare a guide to assist New York City school staff on how to obtain educational records, award credits, and make programming decisions for students returning from court-ordered settings to New York City community schools
• make training available for schools concerning the requirements included in the settlement and specifically invite 10 schools a year to participate
• ensure that principals or their designees evaluate state custody transcripts for students returning from those settings
• ensure that the pretrial detention school identifies any incoming student who has an IEP and, for each student, request a copy of the IEP
• ensure that the three-year reevaluation process for students with disabilities in detention occurs
• make available remedial services to students in pretrial detention who are performing below grade level
• provide all students in pretrial detention the opportunity to take state standardized examinations required for promotion, and State Regents and Regents Competency tests
• designate individuals at enrollment offices who will be available to assist students returning from court-ordered settings with the reenrollment process
As the plaintiffs continue to monitor and work to enforce compliance with the settlement order, the City has recently designated a troubleshooter to work with students returning from court-ordered settings. Change has come slowly for our clients, who are certainly not the most favored population of the education system, but the progress has been significant.
Keywords: litigation, children's rights, education, J.G. v. Mills, New York City schools, juvenile justice, due process, property right to education