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Each year, thousands of children end up in the juvenile justice system, at least one-third of whom have a disability. These students become dependent on educators and resources at correctional facilities not only to provide an education but also to furnish special education services, as required under the Individuals with Disabilities Education Act (IDEA). A recent Hechinger Report investigation found that in Mississippi students with disabilities are often pushed into the justice system for behavior that is directly related to their disability. Once in the justice system, they may receive an inferior education and few services. The problem is not limited to one state.

In December, the US Department of Education published a set of guidelines intended to improve the educational services that children receive while in the justice system, including a “dear colleague” letter specifically addressing the services students with disabilities should be receiving. These guidelines came on the heels of the My Brother’s Keeper Task Force report released in May, which made recommendations to improve outcomes for boys and young men of color, who are also overrepresented in the juvenile justice system and are disproportionately referred to special education.

The Oakley Youth Development Center holds youth convicted of crimes for up to 20 weeks. At any given time, a third of the students there will qualify for special education services. (Photo by Jackie Mader)

The Hechinger Report spoke to Michael Yudin, acting assistant secretary for the Office of Special Education and Rehabilitation Programs (OSERS), and Melody Musgrove, director of the Office of Special Education Programs (OSEP) about the recently released guidance and how it is intended to impact incarcerated students with disabilities.

Hechinger Report: Why did you decide to write the dear colleague letter now, when we know the issues have been going on for such a long time? Why are these issues so important?

Michael Yudin: First, as you may know, the report to the president on My Brother’s Keeper was really looking to improve opportunities for boys and young men of color and all kids. Juvenile justice and correctional education was one of the areas where the report to the president identified we need to create greater opportunities for kids to have better outcomes. The data that we get through the Office of Civil Rights [OCR] around kids with disabilities, kids with color being suspended and removed from classrooms at crazy rates. There’s a whole set of data points that are just unacceptable not only to us here but, frankly, to the president, to the secretary of education [Arne Duncan] to the attorney general [Eric Holder]. The secretary released his correctional education guidance along with Attorney General Holder at a juvenile justice facility in northern Virginia. Their commitment to improving opportunities and improving the educational opportunities is absolutely real.

This is one piece to a set of policy proposals. We put forward discipline guidance last year. We just put out a new framework of guidance around early childhood suspension.

Related: Pipeline to Prison: special education too often leads to jail for thousands of American children

HR: With this dear colleague letter and the other policies that you’ve put together, how are you getting these guidelines out to the states and making sure the people who need to see them are seeing them, understanding them and following them?

MY: That’s clearly a critical question. First, it’s definitely a comprehensive effort, not the least of which is, again, the Attorney General and the Secretary of Education appearing at a juvenile justice facility to announce it. There was a lot of press there. That being said, [we are] putting out this guidance to every state and district in the country. Putting it out and sharing it on our various list serves, which have tens of thousands of folks receiving this guidance as well as the educators. The partnerships with our friends at the Department of Justice are critical to getting this information out. We’ve done already some technical assistance webinars, technical assistance calls with our state directors of special education. Our parents and training information centers, which are critical in this space, have also been trained on it and have meaningful information on what this looks like. Obviously, at the end of the day parents and communities need to understand their rights under IDEA (Individuals with Disabilities Education Act) to ensure that their kids do in fact get a high-quality education and, at the least, a free, appropriate public education that they’re entitled to.

HR: When we were in Mississippi reporting, we found that very little of this was happening. Is there any way to ensure these new guidelines are being followed, especially considering a lot of these juvenile justice facilities are getting federal funding?

Melody Musgrove: We’ve changed accountability system in special education and we’re now including student outcomes in the way we make decisions about the effectiveness in special education. We’re using this rubric to look at various pieces of information when we look at states. One of the pieces of information is suspension/expulsion data. We have not yet used it because we like to post the speed limit and let states know where we’re going in the accountability system. But that’s really an important part of information. OCR is looking at their levers for using the data to get states to do a better job with this. We have a number of different ways that we can approach this to put pressure on states to improve the services that children with disabilities are getting in correctional education.

At the end of the day parents and communities need to understand their rights…to ensure that their kids do in fact get a high-quality education. – Michael Yudin, US Department of Education.

MY: Part of the purpose of the letter really was to remind states of their obligation under the law; under IDEA they have general supervision responsibilities, so I hope we clearly articulated what those responsibilities are and obligations are. Again, having a meaningful outreach effort is really critical to ultimately better understanding opportunities and [providing] access to high quality and a free, appropriate public education. This question [about enforcing the guidelines] was asked to Secretary [of Education]Duncan when we released the guidance and he said, “Our Office of Civil Rights is open for business.” What we hope happens is people hear these issues and are aware of these issues and we are absolutely open for folks to file complaints.

Related: Pipeline to Prison: How the juvenile justice system fails special education students

HR: In Mississippi, what we found in our investigation is that not all detention centers have a certified special education teacher. Should it be up to the state to make sure the certification requirements of IDEA are met? Is there a role for the federal government to play in making sure those teachers are where they need to be?

MM: Under the law, IDEA personnel qualifications are pretty straight forward and those apply. The state educational agency must establish and maintain qualifications to ensure all personnel are [able] to carry out the purposes of IDEA and are appropriately and adequately prepared and trained to do so. That’s part of what we put forward in our guidance — what the obligations are at state and local levels — the requirements under the law around having adequately trained and qualified staff. Part of the guidance that came out was a set of resources and best practices and a set of principles regarding high-quality correctional education and what those should look like. There’s a lot of information of what should be happening with regards to personnel and educators. But, again, there are certain obligations under the law and those apply here as well.

This interview was edited for clarity and length.

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