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June 1, 2017
The 2014 DOE and DOJ Federal
Guidelines: Providing Students with
Appropriate Instructional Time
2
Bellwether’s mission: To catalyze dramatic results in the
education sector.
We are a nonprofit dedicated to helping education organizations in the
public, private, and nonprofit sectors become more effective in their work
and achieve dramatic results, especially for underserved students.
\‘BEL-‚weth-ər\, noun;
A leader of a movement or activity;
also, a leading indicator of future trends.
3
Bellwether offers three inter-related services that are critical
to the sector.
• Develop actionable
business plans and
strategic plans
• Identify and implement
performance improvement
opportunities
• Assess new opportunities
and partnerships
• Conduct policy analysis,
research and writing
• Advise on policy and
public affairs
• Assess talent readiness and build
management and systems capacity
• Recruit senior level executives
• Design diversity strategies and develop
cultural competence
Talent
Strategic
Advising
Policy &
Thought
Leadership
4
Education failures contribute to our criminal justice crisis.
Students who attend
school in a correctional
facility on any given
day
Students who leave
custodial care and
return to school
Academically low-
performing children
end up in juvenile
courts
Rate at which high
school dropouts are
arrested compared to
graduates
# of correctional facility
schools (students may
stay for just a few days
or several years)
Adult prison population
who are high school
dropouts (estimated)
Education agencies are working hard but have little to show for it.
5
For too many students, each education failure
accumulates, ending in incarceration.
have not been
in school
regularly in 3-5
years.
have academic
skills far below
grade level -
and some lack
basic literacy or
math skills.
have special
education
needs (~60%).
that lack robust
data about their
needs and
achievement.
with policies that
create
unwelcoming
environments.
school systems struggle to provide
relevant and rigorous education
programming.
As adults, high school dropouts are 3.5
times more likely to be arrested than
graduates and their children are more
likely to come into contact with law
enforcement.
Many justice-
involved youth…
And attend
schools…As a result…
6
Efforts to dismantle the school-to-prison pipeline focus
on front-end interventions that prevent incarceration.
Your Text HereYour Text Here
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Productive
Community
Participation
Understanding youth
trauma and impact of
poverty
Reforming connected
public policies
Non-Punitive
School Discipline
Policies and
Practices
AND
Restorative Justice
Programs in
Schools School-to-prison
pipeline efforts
focus on front-end
interventions like
restorative justice
strategies and
community-based
diversion programs
to prevent arrest and
incarceration.
Incarceration in
long-term
secure facilities
Legal Intervention
Focused on
Diversion
7
There is also opportunity to create prison-to-promise
pipelines – supporting students returning to the community
Rigorous and
relevant academic
programming for
students confined
in long-term term
secure facilities
Career Pathway
Comprehensive
high school or
alternative
secondary
program
Post-secondary
education program
Young people in custody are not lost causes and education programs must provide
them with clear trajectories to reenter their communities as productive participants.
Incarc
era
tio
nin
lon
g-t
erm
secu
re
facil
itie
s
Prison-to-Promise Pipeline:
Productive Community Participation
8
We serve all agencies and organizations that are involved
in the education of justice-involved youth.
School
DistrictsCommunity schools are students’ primary support before and
after contact with the justice system.
Non-District
Education
Providers
Public or private entities provide education services in
custodial facilities.
Justice
Agencies
Custodial agencies hold ultimate authority for safety and
security and may also provide their own academic
programming.
Vocational &
Training ProgramsIndustry-aligned programs can be offered to young people
while they are incarcerated.
Post-Secondary
Opportunities
Young people with a high school credential should have
access to ongoing education opportunities – both in and out
of custody.
9
The purpose of today’s discussion is to help you think
through your existing policies and practices for behavior
management and think about your discipline goals.
summarize and describe the key aspects of the 2014 federal
guidelines prepared by the Departments of Justice and
Education that outline the requirements for custodial agencies,
contractors, and their education partners to ensure that all
students have access to appropriate education opportunities and
related services.
By the end of this session, you will be able to:
10
Some quick vocabulary so that we’re all speaking the same
language.
The federal special education law that governs education agencies and any
other agency or contractor “involved in” providing education and related
services; violations result in compensatory education obligations
IDEA
A “free and appropriate public education” guaranteed to students with
disabilities through age 22; must be provided in the “least restrictive
environment” that meets the student’s needs
FAPE &
LRE
Obligation to affirmatively identify, assess, and serve students with
disabilities
Child
Find
The federal education statute (Every Student Succeeds Act) placing new
expectations on schools serving students in long-term secure care with
Title I dollars
ESSA
Americans with Disabilities Act: anyone with a disability, any public agency,
violations can result in personal liability and money damagesADA
11
The 2014 Federal Guidance Package has four parts, we
will address two of them today.
Dear Colleague Letter on the
Individuals with Disabilities
Education Act for Students with
Disabilities in Correctional Facilities
Dear Colleague Letter on the Civil
Rights of Students in Juvenile Justice
Residential Facilities
Guiding Principles for Providing High-
Quality Education in Juvenile Justice
Secure Care Settings
Dear Colleague Letter on Access to
Pell Grants for Students in Juvenile
Justice Facilities
12
Helpful context: there are three big categories of federal
laws that apply in juvenile justice education.
• Protects students with
disabilities in their
education program
• Establishes FAPE: the
right to Free Appropriate
Public Education
• Requires LRE:
education in the Least
Restrictive Environment
• Creates Child Find
obligation
IDEA: Individuals with
Disabilities Education Act
Only students with
disabilities that affect
education
• Protects anyone with a
disability served by any
public agency
• Violations of ADA are
considered actionable
discrimination
• Willful discrimination
can result in a money
damages award and
liability may be personal
ADA: Americans with
Disabilities Act
Any student with any
known or suspected
disability
• Prohibit discrimination
based on race, color,
national origin, sex, or
disability
• Impose academic
requirements on
education agencies
Other Federal Laws: Civil
rights laws, education statutes,
etc.
All students
13
What does the Guidance Package mean for you?
“The requirements . . . govern the responsibilities of noneducational public agencies for the
education of students with disabilities in correctional facilities.”
Education providers are not the only agencies
responsible for ensuring that students receive
all of the academic opportunities and related
services to which they are entitled; custodial
care agencies and their contractors also have
an obligation to ensure that students have
appropriate access.
14
This affects two types of polices and practices:
Placement of Students with Disabilities in Specialized Settings
Facility and School Discipline Policies
1
2
15
even if the placement is not punitive.
even if the student is not confined in a room or cell for any part of the day.
The right to FAPE extends to all settings.
Placement of Students with Disabilities in Specialized Settings
1
The right to FAPE extends to all specialized group settings or any other situations
where educational programming is limited.
If students with disabilities are placed in any setting other than the regular education
setting, they still must receive the education programming mandated by their IEP.
This is true:
16
2. If yes, an IEP meeting must be held
so that a team can determine whether
the change is appropriate and, if it is,
how the student’s needs will be met in
the new setting (the team may also
make appropriate revisions to the
student’s IEP).
A change of placement can be inadvertent.
Placement of Students with Disabilities in Specialized Settings
1
Transferring a student to a different setting – for any reason – may result in an
inadvertent change of placement. There are mandatory procedures that an agency
must follow when changing the placement of a student with a disability.
1. Will the move result in a meaningful
change of the education program?
A student’s special needs must be considered before transferring that
student to a new unit or setting:
“[A] removal from the current educational placement that results in a denial of educational services for more than 10 consecutive
days or a series of removals that constitute a pattern that total more than 10 school days . . . is a change in placement . . . .” (IDEA
Letter, p.5.)
17
Specialized program placement must be individualized and
rare.
Placement of Students with Disabilities in Specialized Settings
1
Long-term (or repeated short-term) assignment of students with disabilities into a
specialized program should be done after an individualized determination and only in
extraordinary circumstances.
“[Students] . . . must be placed in a regular education environment unless . . . even with the
use of supplementary aids and services, the student cannot be educated satisfactorily in the
regular education setting.” (IDEA Letter, p. 14.)
Specifically, placing or transferring students with mental health
diagnoses or special needs to specialized programs or units should be
done rarely and with extreme care.
18
One-size-fits-all discipline can be discriminatory.
If students with special needs face repeated disciplinary action that precludes them
from receiving education services or prohibits them from participating in educational
or noneducational activities with their nondisabled peers, it is likely that the
discipline practice needs to be revised.
Facility and School Discipline Policies
2
One-size-fits-all
approaches are difficult
to implement in a
nondiscriminatory way.
Discipline practices must be appropriate for each
student.
19
Tracking discipline data is essential.
Systems must be in place to track records of student discipline, harassment, or violence
in order to analyze and respond to patterns based on race, color, national origin, sex, or
disability.
Facility and School Discipline Policies
2
If any one group of
students is
overrepresented in
discipline-related
sanctions, the agency
must assess and may
individualize discipline
polices.
2
If students who are not
identified as having
disabilities face repeated
sanctions for patterns of
behavior, the agency
must make efforts to
assess the student and
discern if the student
has a disability.
3
If any student is
sanctioned for behaviors
that are attributable to a
known or suspected
disability, reasonable
accommodations must
be adopted.
1
20
Finally, no amount of contracting or statutory allocation of
authority relieves a public agency of these obligations.
“Public agencies cannot avoid their IDEA
obligations, including the discipline procedures,
by contracting, transferring them to, or sharing
them with another agency.”
21
How do these provisions operate in context?
Real Stories from Real Schools
22
How do these provisions operate in context?
Rudy
Rudy has an identified cognitive impairment from a traumatic brain injury that affects his
impulse control. This is documented accurately in his IEP and in the community, he
attended a nonpublic school with an individual behavior aide.
Now, Rudy attends school in your facility and he seems to be at the center of every
classroom disruption and conflict. As a result, Rudy has been placed in the Redirection
Room for 11 of the last 20 school days. The Redirection Room is staffed with a secure care
officer but no teachers. While he is there, he can work on his packet of worksheets but he
usually just sleeps.
Are you providing Rudy with a legally adequate education program?
23
How do these provisions operate in context?
Rudy
Rudy has an identified cognitive impairment from a traumatic brain injury that affects his
impulse control. This is documented accurately in his IEP and in the community, he
attended a nonpublic school with an individual behavior aide.
Now, Rudy attends school in your facility and he seems to be at the center of every
classroom disruption and conflict. As a result, Rudy has been placed in the Redirection
Room for 11 of the last 20 school days. The Redirection Room is staffed with a secure care
officer but no teachers. While he is there, he can work on his packet of worksheets but he
usually just sleeps.
Are you providing Rudy with a legally adequate education program?
Rudy is not receiving the education program specified in his IEP
Even if Rudy’s disciplinary sanctions are imposed by one-size-fits-all policy, they
may be discriminatory if the behavior is a result of the disability
Any removal from school for more than 10 cumulative days is a change of
placement and requires an IEP meeting
24
How do these provisions operate in context?
Julianna
Julianna is a student with a documented hearing impairment and an IEP from her school
district that guarantees her 5 hours per week of special education services delivered by an
audiologist.
At your substance abuse treatment facility – where Julianna was placed by the court – you
do not have an audiologist available and so she is not receiving those services. She is,
however, seated next to another student who can help her during class and all of her
teachers are aware of her disability. Have you met your obligations under federal law?
25
How do these provisions operate in context?
Julianna
Julianna is a student with a documented hearing impairment and an IEP from her school
district that guarantees her 5 hours per week of special education services delivered by an
audiologist.
At your substance abuse treatment facility – where Julianna was placed by the court – you
do not have an audiologist available and so she is not receiving those services. She is,
however, seated next to another student who can help her during class and all of her
teachers are aware of her disability. Have you met your obligations under federal law?
Julianna is currently not receiving the education program specified in her IEP
A student’s IEP must be revised before services can be altered – but it is not legal
to change an IEP because the services are difficult or expensive to deliver
Julianna must be provided with her special education services in this setting or she
must be moved to a setting where those services are available
26
How do these provisions operate in context?
Michael
Michael has been in your facility for five weeks. At least twice a week, he has been
reprimanded by the secure care staff for not following the morning procedures despite
repeated oral instructions. The secure care staff have told Michael that if it happens again,
he will be held in room confinement for the remainder of the school day.
You know that Michael has no documented disability and he says that he is doing his best to
follow the directions.
What should the next step be to ensure that Michael has appropriate access to the facility’s
education program?
27
How do these provisions operate in context?
Michael
Michael has been in your facility for five weeks. At least twice a week, he has been
reprimanded by the secure care staff for not following the morning procedures despite
repeated oral instructions. The secure care staff have told Michael that if it happens again,
he will be held in room confinement for the remainder of the school day.
You know that Michael has no documented disability and he says that he is doing his best to
follow the directions.
What should the next step be to ensure that Michael has appropriate access to the facility’s
education program?
Michael’s failure to comply with instructions might be due to a disability – either a
hearing impairment or an auditory processing deficit
All IDEA-bound public agencies have a “child find” obligation to assess where a
disability is suspected
There is ADA liability for discrimination whether or not the disability is formally
identified
28
How do these provisions operate in context?
Francis
Francis has a learning disability and his existing IEP specifies that he should be educated in
a special day class (SDC). He is currently enrolled in such a class at this medium-security
facility and making progress on his academic goals.
Last week, Francis was involved in a fight in your facility. It’s still unclear who instigated the
fight, but both he and the other young person were meaningfully injured. In compliance with
your written policy, both of them will be transferred to a higher-security facilities as soon as
bed space becomes available.
The next space coming open for Francis is in a facility across the state. This facility is much
smaller and does not offer an SDC placement. They do, however, have a resource specialist
who can work with Francis one hour per day while he attends regular education classes. Is
there anything you need to think about before this transfer occurs?
29
How do these provisions operate in context?
Francis
Francis has a learning disability and his existing IEP specifies that he should be educated in
a special day class (SDC). He is currently enrolled in such a class at this medium-security
facility and making progress on his academic goals.
Last week, Francis was involved in a fight in your facility. It’s still unclear who instigated the
fight, but both he and the other young person were meaningfully injured. In compliance with
your written policy, both of them will be transferred to a higher-security facilities as soon as
bed space becomes available.
The next space coming open for Francis is in a facility across the state. This facility is much
smaller and does not offer an SDC placement. They do, however, have a resource specialist
who can work with Francis one hour per day while he attends regular education classes. Is
there anything you need to think about before this transfer occurs?
Although not an education-based move, this change will affect Francis’s education
program and therefore it is a change of placement under IDEA: an IEP meeting
must be held before the move
