The right to education in juvenile detention under state constitutions

Virginia Law Review

Volumn 94, Issue 3, 2008, Pages 765-811

  Twomey, Katherine ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 45949096497     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (224)

1. Human Rights Watch, High Country Lockup: Children in Confinement in Colorado 46 (1997) (reporting observations of Human Rights Watch visit to facility and audit conducted by Colorado Division of Youth Services).
2. Id. at 47.
3. Id. at 45-47.
4. Melissa Sickmund, T.J. Sladky & Wei Kang, Office of Juvenile Justice and Delinquency Prevention, Census of Juveniles in Residential Placement Databook (2005), http://www.ojjdp.ncjrs.org/ojstatbb/cjrp/asp/Age_Sex.asp.
5. See, e.g., Coalition for Juvenile Justice, Ain't No Place Anybody Would Want to Be: Conditions of Confinement for Youth 19-20 (1999) (describing conditions at the Giddings State Home and School in Texas).
6. Id. at 29. For a survey of Justice Department reports noting poor conditions in juvenile detention facilities, see Douglas E. Abrams, Reforming Juvenile Delinquency Treatment to Enhance Rehabilitation, Personal Accountability and Public Safety, 84 Or. L. Rev. 1001 (2005).
7. See, e.g., Letter from Bradley J. Schlozman, Acting Assistant Attorney Gen., to the Honorable Mitch Daniels, Governor of Ind. 19-20 (Sept. 9, 2005), available at http://www.usdoj.gov/crt/split/documents/ split_indiana_plainfield_juv_findlet_9-9-05.pdf [hereinafter Plainfield letter] ("[Students in the Intensive Treatment Unit] remain on the unit all day with no school work or instruction [and] . . . classes in Cottage 13 are held erratically or not at all."); see also Coalition for Juvenile Justice, supra note 5, at 4 (describing conditions for juveniles in D.C. Jail, where juveniles accused of serious crimes who will be tried as adults are detained pre-trial).
8. See, e.g., Human Rights Watch, supra note 1, at 37-38 (describing conditions at High Plains Youth Center); see also infra Subsection III.C.2.
9. See, e.g., Human Rights Watch, supra note 1, at 38 (noting lack of access to library); Abrams, supra note 6, at 1031, 1039 (noting facilities with no textbooks and inadequate classroom space).
10. See infra Subsection III.C.2.
11. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
12. See infra Subsection I.B.2.
13. This Note uses the term "juvenile detention" generically to refer to all forms of court-ordered juvenile confinement.
14. See Nat'l Research Council and Inst. of Med., Juvenile Crime Juvenile Justice 154 (Joan McCord et al. eds., 2001);
15. Barry C. Feld, The Transformation of the Juvenile Court, 75 Minn. L. Rev. 691, 693-96 (1991).
16. Feld, supra note 14, at 695.
17. Id.
18. Id.
19. For a more detailed discussion, see infra Subsection III.C.1.a.
20. Feld, supra note 14, at 715.
21. See Sue Burrell, Improving Conditions of Confinement in Secure Juvenile Detention Centers, in Pathways to Juvenile Detention Reform 6-7 (Annie E. Casey Found., 1999), available at http://www.aecf.org/KnowledgeCenter/ PublicationsSeries/JDAIPathways.aspx (citing statistics demonstrating that over sixty percent of detained youth were in overcrowded facilities in 1995).
22. Abrams, supra note 6, at 1001-02.
23. Id. at 1002 (citing U.S. News & World Report study).
24. Noam N. Levey, Reform Is Locked Out of Juvenile Hall, L.A. Times, Aug. 21, 2006, at A1.
25. The federal government does have limited jurisdiction over juveniles that, for example, commit crimes in national parks or on Indian reservations. See National Research Council, supra note 14, at 155.
26. 42 U.S.C. §§ 5601-5792(a) (Supp. IV 2004).
27. The JJDPA has four requirements: (1) deinstitutionalization of status offenders, (2) juveniles may not be detained in adult facilities unless convicted of an adult offense, (3) "sight and sound" separation between children and adults, and (4) states must assess the reasons for disproportionate minority confinement. See Building Blocks for Youth, Juvenile Justice and Delinquency Prevention Act Fact Sheet, http://www. buildingblocksforyouth.org/issues/jjdpa/factsheet.html;
28. see also Claude Noriega, Note, Stick A Fork in It: Is Juvenile Justice Done?, 16 N.Y.L. Sch. J. Hum. Rts. 669, 686-87 (2000) (noting the ineffectiveness of the JJDPA).
29. Gus Martin, Juvenile Justice: Process and Systems 230 (2005).
30. Id. at 213-216, 230.
31. Peter E. Leone et al., Special Education Programs for Youth with Disabilities in Juvenile Corrections, 53 J. Correctional Educ. 46, 47 (2002).
32. Sickmund, Sladky & Kang, supra note 4.
33. Id.
34. Melissa Sickmund, T.J. Sladky & Wei Kang, Office of Juvenile Justice and Delinquency Prevention, Census of Juveniles in Residential Placement Databook (2005), http://www.ojjdp.ncjrs.org/ojstatbb/cjrp/asp/Age_Race.asp (reporting that 38% of males in residential placement were black and 20% of males in residential placement were Hispanic).
35. Harriet R. Morrison & Beverly D. Epps, Warehousing or Rehabilitation? Public Schooling in the Juvenile Justice System, 71 J. Negro Educ. 218, 220-21 (2002).
36. Leone et al., supra note 29, at 46; see also Peter E. Leone & Sheri Meisel, Improving Education Services for Students in Detention and Confinement Facilities, 17 Child. Legal Rts. J. 2, 3 (1997) (noting different findings for the percentage of students in juvenile detention that are learning disabled, including 42% in Arizona, 60% in Florida and Maine, 35.6% in a meta-analysis, and noting that this is three to five times the percentage in the general public school population); Morrison & Epps, supra note 33, at 224 (finding that 70% of children in southern correctional facilities qualified as disabled under the IDEA);
37. Mary Magee Quinn et al., Youth with Disabilities in Juvenile Corrections: A National Survey, 71 Exceptional Child. 339, 342 (2005) ("[T]he number of youth identified and receiving special education services in juvenile corrections is almost four times higher (33.4%) than in public school programs.").
38. See infra Subsection III.C.2 for a more detailed discussion about education currently provided in juvenile detention facilities.
39. See Morrison & Epps, supra note 33, at 225; Open Society Institute, Research Brief No. 2, Education as Crime Prevention 2-3 (1997), http://www.prisonpolicy.org/scans/research_brief__2.pdf.
40. Open Society Institute, supra note 36, at 2.
41. See Leone et al., supra note 29, at 49; see also Coalition for Juvenile Justice, supra note 5, at 19-25 (describing success at Giddings State Home and School in educating violent offenders).
42. See Bruce I. Wolford, Juvenile Justice Education: "Who is Educating the Youth" 4 (2000), available at http://www.edjj.org/Publications/ educating_youth.pdf;
43. Juvenile Justice Educational 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.
44. See Michael T. Burk & James H. Keeley, Collaboration Between the School House and the Bunk House: An Effective Collaboration Protocol Between Independent Education and Institution Providers in a Juvenile Correctional Institution, 53 J. Correctional Educ. 70, 70 (2002); Leone et al., supra note 29, at 46, 49.
45. James H. Keeley, Will Adjudicated Youth Return to School After Residential Placement? The Results of a Predictive Variable Study, 57 J. Correctional Educ. 65, 67 (2006).
46. Id.
47. See Open Society Institute, supra note 36, at 1, 4-5; see also Stephen J. Steurer et al., Three State Recidivism Study 39-41, 48-49 (2001), available at http://www.ceanational.org/PDFs/3StateFinal.pdf.
48. See Thomas C. Blomberg et al., Juvenile Justice Education, No Child Left Behind, and the National Collaboration Project, Corrections Today, Apr. 2006, at 143, available at http://www.criminologycenter.fsu.edu/p/pdf/ Juvenile_justice_corrections_today.pdf.
49. Keeley, supra note 41, at 67 (finding that juvenile delinquents who complete their GEDs are three times as likely to eventually be employed than those who do not complete their GEDs); see also Leone et al., supra note 29, at 46-47.
50. Coalition for Juvenile Justice, 2001 Annual Report: Abandoned in the Back Row: New Lessons in Education and Delinquency Prevention ix (2001); see also Open Society Institute, supra note 36, at 6 (noting that the average cost of incarcerating an adult inmate is $25,000 per year, in contrast to the $2,500 annual cost of educating a juvenile in detention).
51. 20 U.S.C. §§ 1400-82 (2000).
52. 20 U.S.C. §§ 6301-7941 (Supp. V 2005).
53. A regulation promulgated under § 504 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 794, guarantees a "free appropriate public education" (as does the IDEA) and is frequently used in conjunction with the IDEA, but this discussion will focus on the IDEA because dismissal of IDEA claims mandates dismissal of § 504 claims. 34 C.F.R. § 104.33(a) (2007). See Tunstall v. Bergeson, 5 P.3d 691, 706-07 (Wash. 2000). For a detailed comparison of the statutes, see Perry A. Zirkel, An Updated Comparison of the IDEA and Section 504/ADA, 216 Educ. L. Rep. 1 (2007).
54. 20 U.S.C. §§ 1400-1482 (2000).
55. 20 U.S.C. § 1412. The IDEA broadly defines disabled as a child: (i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services. 20 U.S.C. § 1401(3).
56. Sue Burrell & Loren Warboys, Special Education and the Juvenile Justice System, Juv. Just. Bull. (U.S. Dep't of Justice, Office of Juv. Justice and Delinquency Prevention, Washington, D.C.), July 2000, at 2, available at http://www.ncjrs.gov/pdffiles1/ojjdp/179359.pdf.
57. See Burrell & Warboys, supra note 52, at 4; Letter from Wan J. Kim, Assistant Attorney General, to the Honorable Robert L. Ehrlich, Governor of Md. 20 (Aug. 7, 2006), available at http://www.usdoj.gov/crt/split/documents/ baltimore_juve_findlet_8-7-06.pdf [hereinafter Baltimore letter] (stating that 45% of Baltimore Center's youth qualified for IDEA services).
58. 20 U.S.C. § 1412(a)(1)(A) (2000) ("A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school."); see also Burrell & Warboys, supra note 52, at 2.
59. See Morrison & Epps, supra note 33, at 224.
60. Letter from R. Alexander Acosta, Assistant Attorney General, to the Honorable Janet Napolitano, Governor of Ariz. 18 (Jan. 23, 2004), available at http://www.juvenile.state.az.us/CRIPA/CRIPAReport.pdf [hereinafter Arizona letter] (describing a facility that employs only three teachers for eighty special education students); see also Morrison & Epps, supra note 33, at 224.
61. See Baltimore letter, supra note 53, at 23; Arizona letter, supra note 56, at 18-19.
62. See Baltimore letter, supra note 53, at 21; Plainfield letter, supra note 7 (describing a situation where students in Intensive Treatment Unit receive no educational services in violation of the IDEA).
63. See Arizona letter, supra note 56, at 17 (noting a facility where there is no disability screening of entering students). For juveniles who do not come directly from a school and do not already have an IEP, this is a significant failure under the IDEA. When IEPs are developed in the correctional facility they are often stated in general terms and do not conform to the specific guidelines of the IDEA. See Arizona letter, supra note 56, at 18 (describing IEPs containing only "generic and broadly stated goals"); Baltimore letter, supra note 53, at 22-23 (noting IEPs that "contained goals which cannot be objectively evaluated"); Plainfield letter, supra note 7, at 16 (detailing examples of IEPs containing "boilerplate" language only).
64. Baltimore letter, supra note 53, at 20.
65. See Baltimore letter, supra note 53, at 21-22; Plainfield letter, supra note 7, at 16. In these correctional facilities, some teachers were not even aware of which students had IEPs. See Baltimore letter, supra note 53, at 23; Plainfield letter, supra note 7, at 17.
66. National Center on Education, Disability and Juvenile Justice, Class Action Litigation Involving Special Education Claims for Youth in Juvenile and Adult Correctional Facilities (2005), http://www.edjj.org/Litigation/ litchartOct05.pdf;
67. see also Patricia Puritz & Mary Ann Scali, Office of Juvenile Justice and Delinquency Prevention, Beyond the Walls: Improving Conditions of Confinement for Youth in Custody 17-18 (1998) (listing recent litigation).
68. Puritz & Scali, supra note 62, at 17 (noting lack of published court opinions).
69. See, e.g., id. at 20 (discussing Johnson v. Upchurch and Smith v. Wheaton); Leone & Meisel, supra note 34, at 4-5 (same). Because both the Upchurch and Wheaton cases were settled before trial, no reporter citation is available for either case.
70. Puritz & Scali, supra note 62, at 20.
71. Id. Note that the Catalina Mountain Juvenile Institution in Arizona was investigated again for violations in 2004. See Arizona letter, supra note 56.
72. Leone & Meisel, supra note 34, at 4.
73. The IDEA also has a carve out that exempts adult correctional facilities from providing services to juveniles aged eighteen to twenty-one who were not diagnosed with a disability before being sentenced to an adult facility. Morrison & Epps, supra note 33, at 224.
74. Leone & Meisel, supra note 34, at 5.
75. 20 U.S.C. §§ 6301-7941 (Supp. V 2005).
76. Id. § 6315(b)(2)(D) ("A child in a local institution for neglected or delinquent children and youth or attending a community day program for such children is eligible for services under this part."); see also Juvenile Justice Educational Enhancement Program, supra note 39, at 82. See generally Blomberg et al., supra note 44.
77. These areas include: (1) to maintain and improve educational achievement; (2) to accrue school credits that meet State requirements for grade promotion and secondary school graduation; (3) to make the transition to a regular program or other education program operated by a local educational agency; (4) to complete secondary school (or secondary school equivalency requirements) and obtain employment after leaving the correctional facility or institution for neglected or delinquent children and youth; and (5) as appropriate, to participate in postsecondary education and job training programs. 20 U.S.C. § 6471.
78. Juvenile Justice Educational Enhancement Program, supra note 39, at 87.
79. Id. at 83.
80. Id. at 96. The NCLBA mandates that states collect data on at least five "indicators of student outcome" to comply with the AYP mandate, but 37% of states collected fewer than three measures. Id. at 89-90.
81. Id. at 94 (noting that seven states did not provide technical assistance to low-performing programs and eighteen states faced no consequences for low-performing programs).
82. Id. at 87 (noting that nineteen states did not include juvenile justice schools in the AYP).
83. Id. at 87-88 (noting states' differing assessments about their progress in implementing the highly qualified teacher requirement); see also Barbara A. Moody, Juvenile Corrections Educators: Their Knowledge and Understanding of Special Education, 54 J. Correctional Educ. 105, 105 (2003) (describing a study about teachers in Oregon who receive no special training to teach juvenile delinquents and are only required to hold the lowest form of a teaching license).
84. Juvenile Justice Educational Enhancement Program, supra note 39, at 94. Eighteen states have imposed no state-implemented consequences for violations in detention centers.
85. See, e.g., Ass'n of Cmty. Orgs. for Reform Now v. New York City Dep't of Educ., 269 F. Supp. 2d 338, 347 (S.D.N.Y. 2003); Fresh Start Acad. v. Toledo Bd. of Educ., 363 F. Supp. 2d 910, 916 (N.D. Ohio 2005).
86. Kimberly A. Murakami, Annotation, Construction and Application of No Child Left Behind Act, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified at 20 U.S.C.A. §§ 6301 et. seq.), 4 A.L.R. Fed. 2d 103, 113 (2005).
87. See, e.g., Tommy P. v. Bd. of County Comm'rs, 645 P.2d 697, 704 (Wash. 1982) (holding on statutory grounds that state compulsory education law applies in juvenile detention).
88. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
89. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30 (1973) (listing Supreme Court opinions emphasizing the importance of education).
90. Id. at 37, 44, 54-55 (applying rational basis scrutiny to Texas school funding scheme and upholding scheme).
91. 457 U.S. 202 (1982).
92. Id. at 205, 230.
93. The Court noted that the children were not a suspect class and there was not a fundamental right at stake, but required a "substantial" goal of the state. Id. at 223-24.
94. Id.
95. Id. at 219.
96. Id. at 223.
97. 487 U.S. 450, 459 (1988) (citing the Plyler concurrence, 457 U.S. at 239 (Powell, J., concurring), and dissent, 457 U.S. at 243 (Burger, C.J., dissenting)). Even though the children were equally innocent in both Kadrmas and Plyler, the Court in Kadrmas distinguished Plyler on the grounds that the children in Kadrmas were not penalized for the illegal conduct of their parents when their parents refused to pay a fee for school bus service. Id.
98. 457 U.S. 307 (1982).
99. Id. at 309-10.
100. Id. at 310-11.
101. Id. at 307.
102. Id. at 315-16, 324-25. The Court also recognized that these rights would be preserved in the punitive context as well. See infra Subsection III.C.2.b.
103. Id. at 324.
104. Id.
105. Id.
106. For a version of this argument applied to the general education context, see Note, A Right to Learn?: Improving Educational Outcomes Through Substantive Due Process, 120 Harv. L. Rev. 1323 (2007).
107. Youngberg, 457 U.S. at 325-26 (Blackmun, J., concurring). Chief Justice Burger explicitly rejected any affirmative right to training. Id. at 329 (Burger, C.J., concurring).
108. See Nelson v. Heyne, 491 F.2d 352, 359 (1974) ("[S]everal recent state and federal cases, out of concern - based upon the parens patriae doctrine underlying the juvenile justice system - that rehabilitative treatment was not generally accorded in the juvenile reform process, have decided that juvenile inmates have a constitutional right to that treatment.").
109. The Youngberg Court noted that "the right to personal security constitutes a historic liberty interest protected substantively by the Due Process Clause" and the right to freedom from bodily restraints "always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action." 457 U.S. at 315-16 (internal citations omitted). As discussed supra Section ILA, the right to education is not fundamental under the U.S. Constitution.
110. 457 U.S. at 322.
111. See infra Section III.B.
112. 5 P.3d 691 (Wash. 2000).
113. Wash. Const. art. IX.
114. Wash. Rev. Code Ann. §§ 28A.150.200-.150.310 (2006).
115. Tunstall, 5 P.3d at 696, 702-04, 708.
116. Id. at 702.
117. Id. at 700-01.
118. Id. at 702.
119. Id.
120. Id. at 702-03.
121. Id. at 703.
122. Id. at 701.
123. Id. at 694.
124. Id. at 703.
125. The court reasoned that "[i]n other words, finding an infringement of the fundamental right is a necessary predicate to determining whether that right was impermissibly infringed." Id. at 704. The dissent strongly disagreed with the court's rationale on this point: "[T]he majority compounds its error by applying an incorrect constitutional analysis. . . . Properly stated, the threshold question is whether 'the allegedly discriminatory classification . . . threatens a fundamental right.'" Id. at 711 (Johnson, J., dissenting) (internal citations omitted).
126. Id. at 704 n.21 ("The inmates' attempt to trigger a more stringent standard of review through the abstract invocation of a 'fundamental right to education' is insufficient. Taken to its logical extreme, the inmates' argument would subject all legislation involving education to strict scrutiny; this is inconsistent with prior precedent.").
127. See Eric Blumenson & Eva S. Nilsen, One Strike and You're Out? Constitutional Constraints on Zero Tolerance in Public Education, 81 Wash. U. L.Q. 65, 103 n.161 (2003) (listing state constitutional provisions).
128. See Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 Tex. L. Rev. 777, 815-16 (1985) (categorizing state education clauses into four categories);
129. William E. Thro, The Role of Language of the State Education Clauses in School Finance Litigation, 79 Educ. L. Rep. 19, 23-25 (1993).
130. Ark. Const. art. XIV, § 1; Del. Const. art. X, § 1; Ill. Const. art. X, § 1; Ky. Const. § 183; Md. Const. art. VIII, § 1; Pa. Const. art. III, § 14; Tex. Const. art. VII, § 1; W. Va. Const, art. XII, § 1.
131. Ill. Const. art. X, § 1; Va. Const. art. VIII, § 1.
132. Ariz. Const. art. XI, § 1; Colo. Const. art. IX, § 2; Ind. Const. art. VIII, § 1; Minn. Const. art. XIII, § 1; Nev. Const. art. XI, § 2; N.C. Const. art. IX, § 2; Or. Const. art. VIII, § 3; Wis. Const. art. X, § 3; Wyo. Const. art. VII, § 1.
133. Idaho Const. art. IX, § 1; Md. Const. art. VIII, § 1; Pa. Const. art. III, § 14; W. Va. Const. art. XII, § 1.
134. Conn. Const. art. VIII, § 1; Kan. Const. art. VI, § 1; Haw. Const. art. X, § 1; La. Const. art. VIII, § 1; Me. Const. art. VIII, pt. 1, § 1; Miss. Const. art. VIII, § 201; N.Y. Const. art. XI, § 1; N.D. Const. art. VIII, § 1; Ohio Const. art. VI, § 3; Okla. Const. art. XIII, § 1; S.C. Const. art. XI, § 3.
135. As of December 2007, forty-five states had been subject to suits challenging the state's public school funding system based on the state constitution's education clause. See Molly A. Hunter, National Access Network, Litigations Challenging Constitutionality of K-12 Funding in the 50 States (December 2007), http://www.schoolfunding.info/litigation/In-Process- Litigations.pdf. As of December 2007, finance schemes had been declared unconstitutional in twenty-eight states and had been upheld in eighteen states.
136. Molly A. Hunter, National Access Network, "Equity" and "Adequacy" School Funding Liability Court Decisions (2007), http://www.schoolfunding.info/litigation/equityandadequacytable.pdf.
137. Serrano v. Priest (Serrano II), 557 P.2d 929, 951-53 (Cal. 1976).
138. Horton v. Meskill, 376 A.2d 359, 374 (Conn. 1977).
139. Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979).
140. Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 333, 335 (Wyo. 1980). Reaching the same ultimate holding, the Arkansas Supreme Court found that the funding scheme failed under rational basis scrutiny in Dupree v. Alma School District No. 30, 651 S.W.2d 90, 93 (Ark. 1983).
141. See John Dayton & Anne Dupre, School Funding Litigation: Who's Winning the War?, 57 Vand. L. Rev. 2351, 2359 n.26 (2004) (explaining the principle of fiscal neutrality first used in Serrano II under which "'tax burdens and tax efforts should be equalized among all districts' and 'equal tax effort should result in equal expenditures per pupil throughout the state, all other factors being equal'" (quoting National Education Association, Understanding State School Finance Formulas 5 (1987)) (errors preserved)).
142. Michael A. Rebell, Educational Adequacy, Democracy, and the Courts, in Nat'l Research Council, Achieving High Educational Standards for All: Conference Summary 218, 226-27 (Timothy Ready et al. eds., 2002). State funding schemes are typically based on revenue from local property taxes. In response to these decisions, many states enacted district power equalizing plans in an effort to equalize tax revenues, and some states mandated a leveling down of expenditures in wealthy districts, which was not popular politically.
143. By 1988, fifteen state supreme courts had ruled against plaintiffs in equity suits. Id. at 227.
144. Id. at 228 (finding that plaintiffs have prevailed in roughly two-thirds of adequacy suits brought before state high courts since 1989); see also Molly A. Hunter, National Access Network, School Funding "Adequacy" Decisions Since 1989 (May 2007), http://www.schoolfunding.info/litigation/ adequacydecisions.pdf (reporting plaintiff victories in twenty out of thirty fully litigated cases).
145. Rebell, supra note 135, at 228-30; see also Julius Chambers, Adequate Education for All: A Right, an Achievable Goal, 22 Harv. C.R.-C.L. L. Rev. 55, 61 (1987) ("[T]hese standards present us with an affirmative opportunity to define a right to a minimally adequate education.");
146. William S. Koski, Educational Opportunity and Accountability in an Era of Standards-Based School Reform, 12 Stan. L. & Pol'y Rev. 301, 313 (2001).
147. This movement directly responded to the concerns of many justices who had based their reluctance to find for the plaintiff in equity suits on the separation of powers argument that the court should not be running the school system. Once legislative standards were in place it was easier for courts to rule in favor of plaintiffs and still maintain a judicial rather than legislative role in the process. See Vincent v. Voight, 614 N.W.2d 388, 407 (Wis. 2000) ("By grounding the standard in statutes . . . we defer to the legislature because it 'is uniquely equipped to evaluate and respond to such questions of public policy . . . .'" (quoting Kukor v. Grover, 436 N.W.2d 568, 583 n.14 (Wis. 1989)).
148. For example, the New Jersey Supreme Court, in declining to decide an equal protection claim in Abbott II, referred to "the monumental governmental upheaval that would result if the equal protection doctrine were held applicable to the financing of education and similarly applied to all governmental services." Abbott v. Burke (Abbott II), 575 A.2d 359, 410 (N.J. 1990). See also Rebell, supra note 135, at 230.
149. Comparing two opinions of the Court of Appeals of New York, that state's high-est appellate court, highlights the importance of local control and the desirability of its preservation under an adequacy rationale. Compare Bd. of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 439 N.E.2d 359, 366 (N.Y. 1982) (upholding scheme to preserve local control) with Campaign for Fiscal Equity, Inc. v. State (Campaign II), 801 N.E.2d 326, 369 (N.Y. 2003) (striking down funding scheme as inadequate, despite the fact that the court's "remedy also signals the demise of local control, a key component to the constitutionalization of New York's public school system").
150. See William S. Koski & Rob Reich, When "Adequate" Isn't: The Retreat From Equity in Educational Law and Policy and Why It Matters, 56 Emory L.J. 545, 560-61 (2006) ("[A] constitutional floor of adequacy would permit some local districts to provide their children more than what the court would deem 'adequate' education. . . . The decision-making authority of well-to-do districts need not be curtailed simply because of a court order to the state that a poor school district be provided resources.").
151. 614 N.W.2d at 407.
152. Rebell, supra note 135, at 239. The Court of Appeals of New York held that a sound basic education required "the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury." Campaign II, 801 N.E.2d at 330 (quoting Campaign for Fiscal Equity v. State (Campaign I), 655 N.E.2d 661, 666 (N.Y. 1995)). The court went on to state that "function productively" implied adequate preparation to compete for jobs. Id. at 330-31. The North Carolina Supreme Court held that "[a]n education that does not serve the purpose of preparing students to participate and compete in the society in which they live and work is devoid of substance and is constitutionally inadequate." Leandro v. State, 488 S.E.2d 249, 254 (N.C. 1997). The court then specifically enumerated skills that an adequate education should include, focusing on civic participation and the ability to compete for gainful employment. Id. at 255. The New Jersey Supreme Court held in Abbott II that the current funding scheme was inadequate because it did not allow children in the Abbott district to "participate fully as citizens and workers in our society." 575 A.2d at 408. The Wisconsin Supreme Court held that "[a]n equal opportunity for a sound basic education is one that will equip students for their roles as citizens and enable them to succeed economically and personally." Vincent, 614 N.W.2d at 396. These values are the same as those that animated the U.S. Supreme Court in Brown when it stated that education "is the very foundation of good citizenship. Today it is a principal instrument in . . . preparing [children] for later professional training . . . ." Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
153. Under this approach, courts have declared the current system unconstitutional, retained jurisdiction, but have not specified what action needed to be taken to bring the system into compliance; if the new system was challenged again, then the court would evaluate it at that time. Matt Brooker, Comment, Riding the Third Wave of School Finance Litigation: Navigating Troubled Waters, 75 UMKC L. Rev. 183, 209 (2006). This preserved the traditional judicial function and allowed the legislature to prescribe prospective specific mandates. See also McDuffy v. Sec'y of Executive Office of Educ., 615 N.E.2d 516, 554 n.92 (Mass. 1993) (leaving to the legislative branch the responsibility of "defining the specifics and the appropriate means to provide the constitutionally-required education").
154. See, e.g., Montoy v. State, 102 P.3d 1160, 1164 (Kan. 2005) ("[W]e need look no further than the legislature's own definition of suitable education to determine that the standard is not being met under the current financing formula."). One potential downside of determining constitutional adequacy based on state standards is that it potentially gives states the incentive to make standards lower so that the state school system will not be in violation of the constitutional mandate. However, see Campaign II, in which the Court of Appeals of New York held that state standards would not always be sufficient to satisfy the constitutional minimum. 801 N.E.2d at 355-56. See also Koski & Reich, supra note 142, at 564-65.
155. See Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989); McDuffy, 615 N.E.2d at 554 (citing Rose for the capabilities a child must possess); Claremont Sch. Dist. v. Governor, 703 A.2d 1353, 1359 (N.H. 1997) (same); see also Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979) (listing similar capabilities).
156. New Jersey is one example. See Abbott II, 575 A.2d at 384.
157. See Julie K. Underwood, School Finance Adequacy as Vertical Equity, 28 U. Mich. J.L. Reform 493, 517-18 (1995).
158. For example, in Campaign II, the Court of Appeals of New York acknowledged that in Levittown it had held that the "Education Article guarantees not equality but only a sound basic education," but in evaluating whether the teaching was adequate in Campaign II, the court compared the pay, experience, certification, and turnover rate of teachers in the inadequate poor district with the same statistics in the rest of the state. 801 N.E.2d at 333 (internal citations omitted).
159. For instance, the Arkansas Supreme Court noted that "equal opportunity is the touchstone for a constitutional system and not merely equalized revenues." Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 495 (Ark. 2002).
160. Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684, 690 (Mont. 1989).
161. Abbott II, 575 A.2d at 408 (emphasis added).
162. See Lake View Sch. Dist. No. 25, 91 S.W.3d at 495 ("Nevertheless, because we conclude that the clear language of Article 14 imposes upon the State an absolute constitutional duty to educate our children, we conclude that it is unnecessary to reach the issue of whether a fundamental right is also implied. Many states, as we have already discussed, appear to get lost in a morass of legal analysis when discussing the issue of fundamental right and the level of judicial scrutiny. . . . The critical point is that the State has an absolute duty under our constitution to provide an adequate education to each school child. Like the Vermont and Arizona Supreme Courts, we are persuaded that that duty on the part of the State is the essential focal point of our Education Article and that performance of that duty is an absolute constitutional requirement.").
163. See, e.g., Alaska Const. art. VII, § 1 ("open to all children of the State"); Colo. Const. art. IX, § 2 ("wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously"); Fla. Const. art. IX, § 1 ("for the education of all children residing within its borders"); Ind. Const. art. VIII, § 1 ("equally open to all"); Mont. Const. art. X, § 1 ("[e]quality of educational opportunity is guaranteed to each person of the state"); N.Y. Const. art. XI, § 1 ("wherein all the children of this state may be educated").
164. See infra notes 188-99 and accompanying text for a more detailed discussion.
165. In re RM, 102 P.3d 868, 874 (Wyo. 2004). For a full discussion of the case, see O'Kelley H. Pearson, Case Note, Education Law - Fundamentally Flawed: Wyoming's Failure to Protect a Student's Right to an Education, RM v. Washakie County School District Number One, 102 P.3d 868 (Wyo. 2004), 6 Wyo. L. Rev. 587, 604 (2006).
166. See Feld, supra note 14, at 695-96.
167. Id. at 695.
168. Mass. Gen. Laws Ann. ch. 119, § 53 (West 2003). The Massachusetts Supreme Court has interpreted this section as focusing on the rehabilitative ideal: "This court has often recognized the unique character of the Juvenile Courts as forums in which, to the extent possible, the best interests of the child serve to guide disposition. This rehabilitative goal applies equally to juveniles charged with the most serious offenses as to those charged with minor offenses." Police Comm'r v. Mun. Court, 374 N.E.2d 272, 287 (Mass. 1978).
169. See Feld, supra note 14, at 692 (noting that "jurisdictional, jurisprudential, and procedural" changes have made juvenile courts more like adult criminal courts and that, in particular, sentencing is now more punitive and is often based on the severity of the offense and the juvenile's prior record rather than on the best interests of the child).
170. Ind. Code Ann. § 31-10-2-1 (LexisNexis 2003). See also the West Virginia Code, which includes among its purposes to "[p]rovide a system for the rehabilitation of status offenders and juvenile delinquents." W. Va. Code Ann. § 49-1-1 (LexisNexis 2004). In interpreting this provision, the West Virginia Supreme Court has held that while rehabilitation is the first goal of the juvenile justice system, it is not the only goal; deterrence and protection of society are also appropriate objectives. See State ex rel. D.D.H. v. Dostert, 269 S.E.2d 401, 410 (W. Va. 1980). See also New Jersey Code of Juvenile Justice, which states as its purpose: "Consistent with the protection of the public interest, to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute therefor [sic] an adequate program of supervision, care and rehabilitation, and a range of sanctions designed to promote accountability and protect the public." N.J. Stat. Ann. § 2A:4A-21 (West 2007).
171. 387 U.S. 1 (1967). See Barry C. Feld, The Constitutional Tension Between Apprendi and McKeiver: Sentence Enhancements Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts, 38 Wake Forest L. Rev. 1111, 1140-43 (2003).
172. 403 U.S. 528 (1971). See Feld, supra note 163, at 1143-50. Similarly, in cases challenging the conditions of confinement for juveniles, the U.S. Supreme Court has continued to emphasize the state's "parens patriae interest in preserving and promoting the welfare of the child . . . which makes a juvenile proceeding fundamentally different from an adult criminal trial." Schall v. Martin, 467 U.S. 253, 263 (1984) (internal citation and quotation marks omitted).
173. In re J.F., 714 A.2d 467, 471, 475 (Pa. Super. Ct. 1998).
174. State v. Schaaf, 743 P.2d 240, 243 (Wash. 1987) ("The fact that juveniles are accountable for criminal behavior does not erase the differences between adult and juvenile accountability.").
175. In re ALJ, 836 P.2d 307, 313 (Wyo. 1992).
176. See supra notes 44-46 and accompanying text outlining the importance of education for rehabilitation.
177. 457 U.S. 307, 315 (1982) ("The mere fact that [respondent] has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment.").
178. Id. at 320.
179. Santana v. Collazo, 714 F.2d 1172, 1180 (1st Cir. 1983). See also Alexander S. v. Boyd, 876 F. Supp. 773, 787 (D.S.C. 1995) ("[J]uveniles possess a clearly recognized liberty interest in being free from unreasonable threats to their physical safety. . . . The level of restraint to be used for each juvenile should be based upon some rational professional judgment as to legitimate safety and security needs.").
180. Alexander S., 876 F. Supp. at 795.
181. R.G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006).
182. Id. at 1155-56 (holding that isolation was an "excessive, and therefore unconstitutional, response to legitimate safety needs of the institution" in the context of isolating lesbian, gay, and bisexual juveniles for their own protection). See also H.C. v. Jarrard, 786 F.2d 1080, 1085-86 (11th Cir. 1986) (holding that shoving a juvenile into a solitary confinement cell amounted to a violation of due process because it was not required to maintain discipline); Milonas v. Williams, 691 F.2d 931, 940 (10th Cir. 1982) (finding that use of "isolation rooms" violated the juveniles' Fourteenth Amendment rights).
183. 714 P.2d 399, 405 (Ariz. 1986) (considering challenge under Article II, § 4 of the Arizona Constitution).
184. See Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 246-48 (Alaska 2006) (discussing state cases granting higher protections under state due process clauses than under the federal Due Process Clause).
185. Many cases challenging restraints on liberty are brought under the federal Due Process Clause because under the Supremacy Clause all states are bound by it; unless the state due process protections are stronger than the federal protections, the court will rely on the U.S. Constitution. See, e.g., Large, 714 P.2d at 405 ("In construing the Arizona Constitution we refer to federal constitutional law only as the benchmark of minimum constitutional protection.").
186. This argument that the right to education may be infringed only for certain legitimate government interests is more limited than the federal due process argument discussed earlier. See supra Part II.B. The state constitutional argument is not for an affirmative right to training under the Due Process Clause, but is merely arguing that the state is not justified in restraining a right that is granted elsewhere in the constitution and that is wholly consistent with the purpose of confinement. In this context, the state's constitutional guarantee of education guarantees the right which must be balanced against the legitimate government interest in safety. In contrast, the former argument discussed, based solely on Youngberg, would be seeking an affirmative right to treatment under the Due Process Clause.
187. Hanna v. Toner, 630 F.2d 442, 444 (6th Cir. 1980) (citing Jones v. Metzger, 456 F.2d 854, 855 (6th Cir. 1972)).
188. 482 U.S. 78 (1987).
189. Id. at 89.
190. Id. at 89-90. Note that the fourth factor is not a "least restrictive alternative" test but is just one factor to determine the reasonableness of the prison regulation. Id. at 91.
191. 539 U.S. 126, 133-34 (2003) (holding that restrictions on visitation for prisoners with substance abuse problems did not violate due process).
192. See Thirty-Fifth Annual Review of Criminal Procedure, 35 Geo. L.J. Ann. Rev. Crim. Proc. 929, 929-40 (2006) (listing cases upholding regulations and cases striking down regulations based on Turner standard in various contexts). It is important to note that while the Turner standard is deferential, it does not result in automatic approval of regulations and has been used to strike down prison regulations as in violation of prisoners' constitutional rights. Id. The Court has also sometimes used a less deferential standard in some contexts. See, e.g., Johnson v. California, 543 U.S. 499, 509 (2005) (applying strict scrutiny to an equal protection challenge).
193. See Payne v. Commonwealth Dep't of Corr., 871 A.2d 795, 810 n.11 (Pa. 2005) ("[W]e agree with the Department that the standard set forth in Turner v. Safley is equally applicable to the instant claim under the Pennsylvania Constitution."). Massachusetts has also adopted the Turner standard in some contexts. In Cacicio v. Secretary of Public Safety, the court analyzed an inmate's claim under Article 16 of the Declaration of Rights of the Massachusetts Constitution and held that "[w]hen such activities are involved, the analysis in Turner v. Safley . . . is called for, and, in this particular area, we have held that an inmate's Federal and State constitutional free speech and expression rights are subject to the same analysis." 665 N.E.2d 85, 92 (Mass. 1996).
194. Rasheed v. Comm'r of Corr., 845 N.E.2d 296, 301 (Mass. 2006) ("[T]he Massachusetts Constitution is more protective of the religious freedoms of prisoners than the United States Constitution, and . . . the proper standard of review to be applied to the infringement of such freedoms is consequently more demanding.").
195. 51 F. Supp. 2d 611, 636 (E.D. Pa. 1999) (citing Transcript of Trial at 12 (No. 96-7991)).
196. In re RM, 102 P.3d 868, 877 (Wyo. 2004).
197. Doe v. Superintendent of Sch., 653 N.E.2d 1088, 1095 (Mass. 1995).
198. In re Jackson, 352 S.E.2d 449, 456 (N.C. Ct. App. 1987).
199. The Nebraska Supreme Court adopted similar reasoning in Kolesnick v. Omaha Public School District, 558 N.W.2d 807, 813 (Neb. 1997), when it held that a student's expulsion was constitutional. However, the plaintiff challenged his expulsion directly, and the provision of alternative education was not at issue.
200. Phillip Leon M. v. Greenbrier County Bd. of Educ., 484 S.E.2d 909, 914 (W. Va. 1996) ("[W]e find that the 'thorough and efficient' clause of Article XII, Section 1 of the West Virginia Constitution, requires the creation of an alternative program for pupils suspended or expelled from their regular educational program for a continuous period of one year for the sole reason of possessing a firearm or other deadly weapon at an educational facility.").
201. See, e.g., In re Jackson, 352 S.E.2d at 455 ("A student's right to an education may be constitutionally denied when outweighed by the school's interest in protecting other students, teachers, and school property, and in preventing the disruption of the educational system."); Cathe A. v. Doddridge County Bd. of Educ., 490 S.E.2d 340, 350 (W. Va. 1997) (noting the government's interests of "protection of students, teachers and other school personnel" and "the need to effectively deter other students from engaging in prohibited conduct").
202. See, e.g., In re RM, 102 P.3d at 874 ("Educational services are provided with reasonable conditions because the Wyoming constitution requires that all students receive an equal opportunity to a quality education. The actual receipt of educational services is accordingly contingent upon appropriate conduct in conformity with state law and school rules." (citation omitted)); see also Doe, 653 N.E.2d at 1095 ("The right which [the student] does have is that of an equal opportunity to an adequate education, a right which she may lose by conduct seen to be detrimental to the community as a whole.").
203. As of 2000, eleven states require school districts to provide alternative education opportunities to students who are suspended or expelled. See Advancement Project & the Civil Rights Project, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline 12 (2000), http://www.advancementproject.org/reports/opsusp.pdf. Similarly, the IDEA requires school districts to continue to provide educational services to suspended or expelled disabled students. 20 U.S.C. § 1412(a)(1)(A) (2000).
204. Cathe A., 490 S.E.2d at 350-51. The court reasoned that if the student could be safely provided educational services in an alternative program then the state was required to provide them, regardless of whether the parents of the child could afford the services; increased expense alone was not enough to justify denying a child education.
205. See Kolesnick v. Omaha Pub. Sch. Dist., 558 N.W.2d 807, 813 (Neb. 1997) ("We decline to hold, in the context of student discipline, that a student has a fundamental right to education, which would trigger strict scrutiny analysis whenever a student's misconduct results in expulsion for the interest of safety.").
206. See In re RM, 102 P.3d at 876.
207. This argument is similar to the argument that has been accepted by courts in the preschool context. See James E. Ryan, A Constitutional Right to Preschool?, 94 Cal. L. Rev. 49, 78-81 (2006).
208. See generally Advancement Project & the Civil Rights Project, supra note 195.
209. There is not currently data to support a claim based on outputs, such as student test scores, but if states begin to comply with the NCLBA, the AYP reports they are required to provide could provide the basis for an output-based claim.
210. See Plainfield letter, supra note 7, at 2, 19-20 ("[Y]ouths remain on the unit all day with no school work or instruction. . . . [C]lasses in Cottage 13 are held erratically or not at all . . . .").
211. Id. at 19 & n.15. There is also a delay upon arrival to this facility during which students do not receive any education for the first two weeks that they are in the juvenile detention center. Id. at 19.
212. See Coalition for Juvenile Justice, supra note 5, at 4.
213. See Human Rights Watch, supra note 1, at 38.
214. Baltimore letter, supra note 53, at 21.
215. Sele Nadel-Hayes & Daniel Macallair, Ctr. on Juvenile and Criminal Justice, Restructuring Juvenile Corrections in California: A Report to the State Legislature 12 (2005), http://www.cjcj.org/pdf/restructuring.pdf.
216. Moody, supra note 78, at 105 (noting that teachers in Oregon youth corrections facilities are required to have only the lowest form of teaching license and no special training); see also Dimitria D. Pope & Sylvia Martinez, Tex. Youth Comm'n, Coke County Juvenile Justice Center Audit 10 (2007) (noting that school has curriculum based on computerized courses, but teachers are teaching subjects that they are not certified to teach and were not providing instruction to children in security unit); Arizona letter, supra note 56, at 18 (noting that the detention facility provided only three special education teachers for eighty special education students).
217. Abbott v. Burke (Abbott II), 575 A.2d 359, 408 (N.J. 1990).
218. See Plainfield letter, supra note 7, at 18; see also Nadel-Hayes & Macallair, supra note 207, at 23 (noting that some children in the juvenile justice system in California do not have access to GED preparation or other employment preparation programs).
219. See Human Rights Watch, supra note 1, at 38.
220. Id. at 37.
221. Leandro v. State, 488 S.E.2d 249, 254 (N.C. 1997).
222. See Alexander S. v. Boyd, 876 F. Supp. 773, 791 (D.S.C. 1995) (noting that "day-rooms" were also used as dormitories); Abrams, supra note 6, at 1031 (noting "grossly overcrowded" detention facilities with "insufficient classroom space"); see also Burrell, supra note 20, at 6 (noting that 62% of juveniles in detention centers were in overcrowded facilities in 1995).
223. See generally Ryan, supra note 199.
224. Id. at 50.