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US Departments of Justice and Education Affirm: Custodial and Education Agencies Are Both Responsible for Ensuring Students Have Access to Education Services
Here at CEEAS we have been advancing the notion that juvenile justice agencies and their education partners have both individual and collective responsibility to ensure that youth in custody receive the full protection of federal law, particularly in the context of their access to special education services. 
The Departments of Justice and Education agree. On February 13, 2014, the Departments took an unusual step and filed a Statement of Interest in the litigation surrounding educational access for students with disabilities in a youth corrections facility in Contra Costa County, California. In the Statement, the Departments provide a clear legal basis to support the position that juvenile justice agencies are involved in the delivery of educational services in custodial settings and are subject to both Title II of the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA), along with educational agencies.  They clarify that “[a]n entity covered under the ADA or the IDEA cannot escape its legal obligations by contracting or delegating them to another entity, or by allowing another entity to interfere with carrying out its responsibilities. Both Defendants attempt to do just that here, with the apparent hope of leaving no one responsible for the discrimination and denial of special education and related services alleged by Plaintiffs.”  
Here is how we interpret the Departments’ position: (a) custodial agencies cannot refuse to provide youth in custody access to mandated educational services for safety or security reasons, and (b) education agencies that run schools inside of custodial facilities cannot shirk their responsibilities (to meet the terms of a student’s IEP, for example) by saying the custodial agency refuses to let students our of their rooms or cells.
Additionally, the Departments make clear in this Statement that the ADA requires custodial and educational agencies to take affirmative and proactive steps to avoid discrimination against students with disabilities.  They “must make reasonable modifications to their policies, practices, or procedures when necessary to avoid discrimination on the basis of disability . . . .”  Our interpretation of this position is that custodial and education agencies generally know which youth in their care have disabilities; if their discipline policies make it more likely that students with disabilities will disproportionately end up facing disciplinary actions, the agencies must modify their policies to accommodate the individualized needs of those students.
At CEEAS, we are privileged to work with a number of state juvenile justice agencies and their education partners that are working proactively to ensure that all youth in their care, including those with disabilities, have access to high-quality educational programming regardless of their discipline status.  But we know this is not the case everywhere.  We are hopeful that the guidance provided in the Departments’ Statement sends a clear message to juvenile justice and education agencies across the country: regardless of their collaborative arrangements, they are each individually responsible to ensure that youth in their care have full and complete exercise of their federally-protected educational rights.
David, Hailly, and Christy
You can learn more about the Contra Costa County litigation here.


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