Special Education and Incarceration

NOTE: This piece was selected for publication by the NYU Undergraduate Law Review, which then promptly ceased to exist.


Children who find themselves in a carceral setting are generally entitled to special education provisions similar to those of public school students, but there are differences between their services and the services of students in a free school setting. Incarcerated students must have been identified as qualified for special education services prior to their transition out of school and into a carceral setting. Such students also are granted fewer guarantees in terms of the nature of their special education services. There have been repeated claims of injustice when considering the practical application of special education law to students who are incarcerated. This paper reviews a history of special education in a carceral setting and the various failures of its equitable implementation, as well as potential solutions to the inequity.


Disability has long been seen as a shameful condition which should both be hidden and utilized in justification of discrimination against those folks with impairments. The state of being incarcerated for a crime, or being under suspicion of having committed a crime, is also historically stigmatized and rarely sympathized with. In recent decades, both disabled and incarcerated communities have been making inroads towards achieving justice. While education issues have been more prominent and palatable topics, their intersection with disability and incarceration were continually stigmatized.

Juvenile offenders and incarcerated youth have been secondary in the discussion surrounding disability rights in education. While the Civil Rights Movement of the 1960’s through the 1980’s revolutionized special education and disability services across the nation, incarcerated youth were almost entirely left behind. When disability activists occupied offices, government buildings, and streets, very few thought to include incarcerated folks in their demands. Indeed, landmark legal cases and legislation of the time failed to be specifically applied to these youth. It wasn’t until the mid to late 1980’s that incarceration within the special education sphere began to be grappled with in the courts. Additionally, though there has been much legal progress in terms of providing special education services for the general population of incarcerated students, disabled students of color continue to be disproportionately discriminated against.[1] Not all disabled students are treated equally, and this paper will discuss ways in which discrimination exists and the extent to which it is being dealt with in special education spaces.


Several cases laid preliminary groundwork for later cases that were more specific to disabled students who were incarcerated. Brown vs. Board of Education (1954) is most commonly associated with racial de-segregation in schools, but it also found more generally that “separate facilities are inherently unequal.”[2] This is now commonly cited precedent for elements of future disability legislation which would require disabled students to be placed in the least restrictive environment that it is possible for them to learn in.[3] Pennsylvania Association for Retarded Children (PARC) et al. v. Commonwealth of Pennsylvania et al (1971) specifically strengthened the right of disabled children to receive free and public education.[4] Both cases allowed for the application of the Fourteenth Amendment— specifically, its Equal Protection Clause— to guaranteeing all children a free and equal education.[5] The PARC decision also utilized the Fifth Amendment which guarantees due process; the court found that the state did not properly notify parents of disabled children of their right to a special education evaluation.[6]

Mills vs. Board of Education (1972) and Wyatt v. Stickney (1972) both mandated that children who are disabled and/or mentally ill are required to be afforded access to publicly funded education, and in the latter case, in the least restrictive setting possible.[7] [8]


When it comes to cases that specifically pertain to incarcerated students, Green v. Johnson (1981) determined that incarcerated children under the age of twenty two are entitled to special education services due to their right to a free and appropriate education.[9] In Pennsylvania Department of Corrections v. Yeskey (1998), the Court found that inmates cannot be excluded from services, particularly those of an educational nature, on the basis of their disability.[10]

Several cases, including John A. v. Castle (1990) and D.B. v. Casey (1991), addressed living and education conditions in youth facilities. Andre H. v. Sobol (1991) determined that youth detention facilities must fully implement relevant disability and special education legislation, including screening for disabilities that would call for special education and procuring records from past educational settings or facilities.[11] The Andre H. Court found that not providing special education services and failing to seek past records of education violated incarcerated students’ rights under IDEA, which will be discussed later in this piece. Johnson v. Upchurch (1993) established even more basic protections and reforms for incarcerated students, including the ability to procure special education while incarcerated.[12]

Smith v. Wheaton (1987) has not yet been settled, but it attempts to address the lack of special education and disability testing done within long-term carceral facilities for youth. It also alleges that the youth facility it names— the Long Lane School in Connecticut— failed to provide Individualized Education Plans to students identified as needing special education services, which would violate IDEA.

Litigation has long been a tool used to create and improve special education services for incarcerated youth. It has also been used to ensure that laws and standards to do with special education in carceral facilities are being enforced. However, according to a report by the NCEDJJ,  “The Department of Education has never withheld funds from states that fail to provide adequate special education programs in their juvenile correctional facilities,” meaning the full scope of the government’s power to enforce the law, when it comes to youth receiving special education services, is not often utilized.[13] Given the government’s hesitance to use the full extent of its power to enforce IDEA, and other important special education legislation, within youth detention facilities, it is unlikely that advocates for youth who are incarcerated in these facilities will be able to refrain from resorting to costly and time-consuming litigation in order for incarcerated youth to be provided with special education services.


There are many major pieces of legislation which reckon with the problem of disability and special education. The Elementary and Secondary Education Act of 1965 laid the groundwork for basic protections of students.[14] This did not explicitly include protections for incarcerated youth who required special education, but it is oft referenced in future legislation and litigation. Crucially, it addresses the equal opportunity for education of poor, non-white, and otherwise marginalized communities and their children. These are the same communities who are overrepresented in carceral settings for youth.[15]

The Rehabilitation Act, Section 504 of 1973 is another important piece of legislation. It outlaws discrimination based on disability, and includes students in its ranks of those who are protected.[16] It also applies to prisoners in state and federal facilities, or facilities which receive any federal money. This act initially established the concept of FAPE, or Free and Appropriate Public Education, as a right of a disabled student. FAPE was further elaborated upon in the most relevant piece of legislation to the issue of special education for incarcerated students.

Additionally, the Americans with Disabilities Act of 1990 provided all disabled Americans with the right to non-discriminatory treatment by any entity that receives federal or state funding. This would apply both to schools and youth detention facilities.[17]


The Individuals with Disabilities Education Act of 2004, formerly known as the Education for All Handicapped Children Act of 1975, is most often cited as the piece of legislation which provides a basis for special education for students who are incarcerated.[18] It dictates that students with disabilities are entitled to a free and appropriate public education (FAPE). The law applies to students between the ages of 3 and 21, for once you turn 22, you are no longer entitled to special education services.

IDEA requires that programs which receive state or federal funding, including detention facilities, provide FAPE in the least restrictive environment (LRE) possible. Educating disabled students in the LRE has been a historically debated topic, but the United States Justice Department and the Department of Education had this to say in a letter they distributed on December 05, 2014.

The IDEA requirements related to least restrictive environment (LRE) apply to the education of students with disabilities in correctional facilities. IEP teams or placement teams must make individualized placement decisions, and may not routinely place all students with disabilities in correctional facilities in classes that include only students with disabilities, even if this means creating placement options or using other arrangements, to the maximum extent appropriate to the student’s needs. This may include, for example, having special education and general education teachers co-teach in the regular classroom.[19]

This letter made it clear that FAPE and LRE both apply in cases of students receiving special education services while incarcerated.

After the passage of IDEA, cases brought to various courts no longer had to rely on things like the Equal Protection Clause or claims of due process violations in order to demand equal access to special education services. However, lawsuits that specifically focus on rights for incarcerated special education students often focus on establishing the actual implementation of these rights, which is often not as appropriately executed for youth detention facilities. Very few IDEA-based cases to do with incarcerated youth exist, and if they do, they were almost always settled before a judicial opinion could be issued.[20]

A 2006 amendment to IDEA established that incarcerated students with disabilities between the ages of 18 and 21 are not entitled to special education services if they were not identified as qualifying for services before the age of 18.


Little is known about the current practical state of special education in youth detention facilities. What we do know is that the rate of disability and need for special education is higher in incarcerated youth populations than in general youth populations. Around 13 percent of the general population of students receives special education services, and students of color are more likely to be identified as needing special education services.[21] By contrast, just over 30 percent of all incarcerated youth have been identified as disabled.[22]


Special education services for incarcerated students are often inadequate, largely because of a lack of funding and resources for juvenile detention facilities. The link between a disabled student’s home district and their correctional facility is usually poor.[23] In order for a juvenile detention facility to obtain a youth’s prior educational records, they would need to know where the youth was before their incarceration, and this can take the form of multiple, if not many, schools and districts, some of which often involve truancy, suspension, or other issues.[24]  There should be better communication between school districts and the juvenile facilities to which their students are sent. This might look like a formal program in which the educational needs of incarcerated students are linked with the needs that were identified during their outside educational experience; this may also be achieved by directives such as the one authored by the U.S. Department of Education Secretary Arne Duncan and the U.S. Attorney General Eric Holder in 2014. They instructed juvenile detention facilities and school systems to work together to expedite the transfer of documents and records in order to better adhere to IEPs and other educational plans. In this way, special education will not fall by the wayside when students are transferred between educational systems.[25]

It is paramount that juvenile detention facilities receive the funding necessary to enact laws such as the ADA and IDEA. When money is limited, access to special education services is often among the first things to be cut. This may look like advocacy for more funds, or better utilization of existing funding.  Ultimately, special education programs in youth detention facilities should provide a comparable education to that of what would be given in a non-carceral setting.


Additionally, the quality of instruction from teachers in juvenile facilities, especially those assigned to special education, should be comparable to that of the quality of teaching in an average home, public school district.[26] For reasons ranging from factors that preceded incarceration to incarceration itself, students involved in the criminal legal system often trail behind their non-incarcerated peers when it comes to educational benchmark performance. Special education students in youth detention facilities need even more care and attention, given a likelihood of a history of trauma and neglect.[27] It would be prudent for teachers and administrators in youth detention facilities to have the proper training, funding, and resources to provide services to youth who are justice involved. This may look like increased professional development for teachers in juvenile facilities, better pay, and ongoing and consistent evaluation. It may also look like ensuring that staff have the credentials necessary under state and federal law to teach in a juvenile detention setting; high quality instructors are guaranteed to students by IDEA.[28] Some states have required teachers in juvenile facilities to achieve a certain level of qualification, but it is not federally mandated.[29] This would be a worthwhile effort for the U.S. Justice Department and the Department of Education.


According to a 2002 study by facilitators at Northwestern Medical School, when studying detained juveniles in Cook County, Illinois, the number of youth who are diagnosed with mental health conditions (disabilities) is vastly outnumbered by those who qualify for a diagnosis, but have not been diagnosed and therefore are not receiving special education services.[30] Regardless of whether or not a youth has been diagnosed, trauma informed care should be routinely administered, in the event that a youth has inappropriately been overlooked for diagnosis, or simply because incarceration inherently heavily involves trauma.[31]

A factor in under-diagnosis may be a lack of funding or training for facilities and school districts who are meant to be diagnosing students. They also may be attributing malice and misbehavior (through suspension and other punitive measures) to what can more accurately be attributed to disability and a need for special education services. It is paramount that districts and facilities be supported in their need to properly identify and provide services for students with disabilities.

It is worth mentioning that there has long been a common practice of placing students of color into special education at a higher rate than their peers. Students of color are also more likely to be incarcerated in youth facilities. However, students of color are less likely to receive appropriate special education services, for their behavior is often pathologized and categorized as a mental and emotional disorder rather than a learning disability or other, similar impairments.[32] All students should be receiving special education that is appropriate for their diagnosis, and all students should be properly assessed and diagnosed when necessary. Students of color are not met with this standard, and so particular care should be taken to employ culturally and racially sensitive medical professionals and counselors, and to promote awareness and incorporation of racial justice oriented special education.


One of the most prevalent and destructive problems within the juvenile justice system as it pertains to special education is a lack of effective and centralized transition services back into school districts. It is recommended, but not often implemented, that juvenile facilities and home schools and school districts maintain timely and effective communication in order to seamlessly integrate a student back into their former school setting.[33] Re-entry and transition services should be carefully considered beginning the moment a youth enters custody, and upon their release, they should be awarded immediate credit for the academic work they performed in custody.[34]

It is imperative that youth who re-enter their home district after time at a youth detention facility are not further stigmatized by their school, for the stigma of being a youth who receives special education services is only exacerbated by the stigma of having been incarcerated. Youth reentry often fails to consider exactly how traumatic and likely ineffective the treatment and education was at the juvenile facility. Approximately two thirds of youth will be re-arrested after their release from a juvenile facility; it is the job of schools and other community organizations to prevent recidivism and further spiraling by the student. That being said, many youths who offend come from communities which are not well equipped to serve them academically in the first place, let alone receive them well upon their return.[35]


It is increasingly clear that the problem faced by justice involved youth in special education is deeply systemic. Funding and resources are inadequate, students of color are discriminated against, transition services are disjointed. This is the case because justice-involved youth, especially those receiving special education services or those who are disabled, are not prioritized in American society, and never have been. Due to systemic racism and classism, as well as a general disdain for “criminality,” disabled students who find themselves in juvenile detention facilities are unlikely to receive adequate care. It is incumbent upon those who know that these youth are being left behind to do better in their name by rectifying the issues that are seen in the carceral special education system.

[1] Leone, Peter & Wruble, Pamela. (2015). Education Services in Juvenile Corrections: 40 Years of Litigation and Reform. Education and Treatment of Children. 38. 587-604. 10.1353/etc.2015.0026.

[2] Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954)

[3] Individuals With Disabilities Education Act, 20 U.S.C. § 1412 (2004).

[4] “Pennsylvania Association for Retarded Citizens (Parc) v. Commonwealth of Pennsylvania: The Public Interest Law Center,” Public Interest Law Center, accessed March 15, 2022, https://www.pubintlaw.org/cases-and-projects/pennsylvania-association-for-retarded-citizens-parc-v-commonwealth-of-pennsylvania/.

[5] U.S. Const. amend. XIV, § 1.

[6] U.S. Const. amend. V.

[7] Mills v. Board of Education of Dist. of Columbia, 348 F. Supp. 866 (D.D.C. 1972)

[8] Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971)

[9] Green v. Johnson, 513 F. Supp. 965 (D. Mass. 1981)

[10] Yeskey v. Commonwealth, Pa. Dept., Correct, 118 F.3d 168 (3d Cir. 1997)

[11] Rousseau, Marilyn K., and Roy Davenport. “Special Education in Urban and Correctional Education in The Year 2000: A Response to Ludlow and Lombardi.” Education and Treatment of Children 16, no. 1 (1993): 90–95. http://www.jstor.org/stable/42899295.

[12] Educational Advocacy for Youth With Disabilities, accessed March 19, 2022, https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/walls/sect-03.html.

[13] Peter E. Leone and Sheri Meisel, “Improving Education Services for Students in Detention and Confinement Facilities,” The National Center on Education, disability and juvenile justice, accessed March 19, 2022, http://www.edjj.org/Publications/pub12_20_99.html.

[14] Catherine A. Paul, “Elementary and Secondary Education Act of 1965,” Social Welfare History Project, January 5, 2022, https://socialwelfare.library.vcu.edu/programs/education/elementary-and-secondary-education-act-of-1965/.

[15] Sawyer, Wendy. “Youth Confinement: The Whole Pie 2019.” Youth Confinement: The Whole Pie 2019 | Prison Policy Initiative. Accessed March 19, 2022. https://www.prisonpolicy.org/reports/youth2019.html#:~:text=Of%20the%2043%2C000%20youth%20in,while%20white%20youth%20are%20underrepresented.

[16] United States. Department of Health, Education, and Welfare. Office for Civil Rights. Section 504 of the Rehabilitation Act of 1973 : Fact Sheet : Handicapped Persons Rights under Federal Law. Washington :Dept. of Health, Education, and Welfare, Office of the Secretary, Office for Civil Rights, 1978.

[17] U.S. Department of Justice, Civil Rights Division, Public Access Section. The Americans with Disabilities Act : Title II Technical Assistance Manual : Covering State and Local Government Programs and Services. [Washington, D.C.] :U.S. Dept. of Justice, Civil Rights Division, Public Access Section, 2005.

[18] Individuals With Disabilities Education Act (2004).

[19] “IDEA Letter,” UNITED STATES DEPARTMENT OF EDUCATION, accessed March 19, 2022, https://sites.ed.gov/idea/files/idea-letter.pdf.

[20] LEONE, supra note 13.

[21] “NDTAC Fact Sheet: Youth with Special Education Needs in Justice Settings,” Neglected Delinquent (The National Evaluation and Technical Assistance Center), accessed March 19, 2022, https://neglected-delinquent.ed.gov/sites/default/files/NDTAC_Special_Ed_FS_508.pdf.

[22] Quinn, Mary & RUTHERFORD, ROBERT & Leone, Peter & Osher, David & POIRIER, JEFFREY. (2005). Youth With Disabilities in Juvenile Corrections: A National Survey. Exceptional Children. 71. 10.1177/001440290507100308.

[23] LEONE, supra note 13.

[24] Cheryl Healy, “Discipline and Punishment: How School Suspensions Impact the Likelihood of Juvenile Arrest,” Chicago Policy Review, April 21, 2014, https://chicagopolicyreview.org/2014/03/26/discipline-and-punishment-how-school-suspensions-impact-the-likelihood-of-juvenile-arrest/.

[25] Arne Duncan and Eric Holder, “Guiding Principles for Providing High-Quality Education in Juvenile Justice Secure Care Settings,” Department of Education, December 2014, https://www2.ed.gov/policy/gen/guid/correctional-education/guiding-principles.pdf.

[26] Id at 14.

[27] Sue Burrell, “Trauma and the Environment of Care in Juvenile Institutions” (National Child Traumatic Stress Network), accessed March 20, 2022, https://www.nctsn.org/sites/default/files/resources/trauma_and_environment_of_care_in_juvenile_institutions.pdf.

[28] Individuals with Disabilities Education Act, 34 CFR § 300.156 (2004)

[29] Juvenile Justice Policy and Oversight Committee, “Transforming Juvenile Justice Systems – University of New …” (Tow Youth Justice Institute, January 2017), https://towyouth.newhaven.edu/wp-content/uploads/2020/09/Transforming-Juvenile-Justice-Systems-to-Improve-Public-Safety-and-Youth-Outcomes.pdf, p. 18.

[30] Teplin, L. A., Abram, K. M., McClelland, G. M., Dulcan, M. K., & Mericle, A. A. (2002). Psychiatric disorders in youth in juvenile detention. Archives of general psychiatry59(12), 1133–1143. https://doi.org/10.1001/archpsyc.59.12.1133

[31] Id at 27.

[32] “Disproportionate Identification of Students of Color in Special Education,” Learning Disabilities Association of America, accessed March 20, 2022, https://ldaamerica.org/lda_today/disproportionate-identification-of-students-of-color-in-special-education/#:~:text=Black%20students%20may%20be%20placed,as%20speech%20or%20language%20impairment.

[33] Education Law Center – PA, “Educational Aftercare & Reintegration Toolkit for Juvenile Justice Professionals,” Models for Change, accessed March 20, 2022, http://www.modelsforchange.net/publications/225/Educational_Aftercare__Reintegration_Toolkit_for_Juvenile_Justice_Professionals_2nd_ed.pdf, p. 9.

[34] Supra note 29, at 19.

[35] Daniel P. Mears and Jeremy Travis, “The Dimensions, Pathways, and Consequences of Youth Reentry,” Urban Institute Justice Policy Center, 2004, https://www.urban.org/sites/default/files/publication/57861/410927-The-Dimensions-Pathways-and-Consequences-of-Youth-Reentry.PDF.

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