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A high school senior in need of speech and language therapy who was sent to prison last October waited five months before getting any special education services.
An incarcerated sophomore with a “significant mental health history” – and a reading level somewhere between that of a fourth and fifth-grader – needed 16 hours per week of services, but only received two.
Because of problems with staffing and conflicting prison interests, young people who need and want special education services in New Mexico Corrections Department facilities don’t always promptly get what they are entitled to.
That’s a problem because when someone is incarcerated before they get their high school diploma or equivalent, they have a right to a free and appropriate public education, says Max Kauffman, staff attorney for Disability Rights New Mexico. Specifically, any young adult with disabilities under 22 who is incarcerated in New Mexico and who previously got educational services in state-supported schools is entitled to them.
That’s a right that’s laid out in the national Individuals with Disabilities Education Act, and includes getting special education and related services – like speech therapy.
The Public Education Department in June cited the Corrections Department for denying the rights of some students and ordered it to come up with a comprehensive plan by Aug. 1.
Providing the correct education and services for students with disabilities is more than a right, said Kaufman.
“It can give a lot of these students a purpose and a drive, while they’re in custody, to better themselves,” Kauffman said. “These individuals may have the chance to get a diploma, may have a chance for higher education, for employment opportunities, and to have a meaningful life outside of custody and … give back to the community.”
To help give those students a “fighting chance,” and to help make significant improvements in education in the state prison system, Kauffman filed a complaint against the Corrections Department on behalf of a student with a disability and all those in similar situations.
The state PED’s Special Education Division investigation of that complaint resulted in PED citing the Corrections Department on four main issues involving its handling of special education and related services.
All of the issues, the PED said, must be corrected.
“NMPED has a significant interest in ensuring that all of our state and county correctional facilities provide appropriate services to eligible students within these facilities in order to ensure that all educational and rehabilitative services are accessible to them,” a PED spokeswoman told the Journal in a statement.
In its own statement, the Corrections Department said it’s “fully complying” with the corrective action plan and timeline that the PED laid out to fix the issues.
The agency said it’s developing training for staff on how to evaluate student needs as well as to better comply with its own policies and procedures for serving students who are eligible and willing to receive special education services.
“Education opens the doors to new ideas and new paths and allows for individuals to focus on themselves and their futures,” the department wrote. “NMCD is committed to providing a variety of programming opportunities to all incarcerated individuals.”
The PED reviewed five people eligible for special education services in creating its report. None of them was identified, for privacy reasons.
Monthslong wait
Some students waited several months to receive special education services, even though they were eligible or had asked for them, the PED found. That includes the senior in need of speech services, who according to the PED’s report was the student who was named in the original complaint.
That student still hadn’t gotten the speech services when the report was filed, the PED said.
Prisons have indicated that students can receive special education services once they’re in the system.
Many of the individualized education plans, or IEPs, the PED reviewed were “more aligned with the needs of the facility” than with individual students’ needs, the department found.
Some students, like an 11th-grader who also had an elementary-school reading level, were only provided two hours of special education services per week under Corrections Department supervision. That student had previously received over 17 hours per week.
The 10th-grader with a “significant mental health history” also only received two hours of special education services per week, even though the student had previously received 16. That student’s IEP also contained no mental health services, the PED found.
NMCD said one of the biggest hurdles to implementing IEPs is scheduling, and the PED acknowledged that facilities can modify the plans for “penological interests.”
Corrections Department spokeswoman Carmelina Hart said that could include modifying the hours of services students receive per week based on if they need to be kept away from a facility’s general population – like, for example, if the student is deemed a danger to themselves or others.
Prison lockdowns can also interfere with classes, she said.
Yet another part of the problem is finding the people to provide the special education services students need – an issue many New Mexico public schools also face.
For example, the student who needed speech services didn’t get them in part because of a “lack of a provider.”
Still, “shortage of personnel is not an excuse for failure to implement the IEP in a prison setting,” the PED wrote, adding there needs to be a balance between security interests and educational needs.
And in fact, it’s in the interest of correctional facilities to make sure that young adults are getting the services they need, Kauffman argues.
“When we talk about a correctional facility, we assume that the point there is not to just sit around in custody and do nothing and then get released, but that the facility does something to help rehabilitate those in its custody,” he said. “A big part of that is education, and access to education.”
In part because of the Corrections Department’s handling of IEPs, which included delays in some cases, the PED found students had been denied a free, appropriate public education.
High school education
A big concern for Kauffman was PED’s finding that the Corrections Department discouraged students from pursuing high school diplomas.
“They are responsible to almost the same extent as a public school to provide free and appropriate public education to those who are eligible,” he said.
The Corrections Department didn’t deny the PED’s finding, but said many of its students weren’t eligible anyway.
“All students within NMCD are encouraged to pursue an education,” the department said. “While pursuing a high school diploma is possible for someone under age 22, the majority of NMCD students are over that age and are pursuing a high school equivalency credential.”
The PED also found that in some cases, special education services weren’t provided based on students’ special education goals. Instead, they were geared toward completing high school equivalency tests.
Still, the department acknowledged that there was confusion in at least one case about whether students who were eligible for special education services wanted to pursue a high school diploma.
But special education-eligible students had to complete separate high school equivalency tests before they could go on to earn their diplomas, the PED said, adding that very few students have done so.
In addition to the confusion over whether students wanted to pursue diplomas, the PED said it wasn’t clear whether nine of the 28 students eligible for special education services who revoked consent for those services knew what that fully entailed. As an example, they said one student withdrew from services, but then later came back.
The Corrections Department said that students are made “fully aware of what revoking consent for services means” through written and verbal communication. The agency added that staff also work with students’ advocates to make sure everyone knows what passing up special education services means.
But it wasn’t clear if students understood or could read the revocation documents, the PED noted in the report. The department also said many of them reported they didn’t want a “special education label” at a correctional facility because it was a “sign of weakness.”
Fixing the problem
The corrective action plan requires NMCD to take several steps to fix the problems. Those include coming up with a comprehensive plan to identify students who are eligible for and want special education services, promptly delivering those services and informing students about their rights to those services and to pursuing a high school diploma.
The corrective action plan also requires the Corrections Department to train its staff on how to identify the needs of students, and to compensate each of the five students they reviewed with the education they didn’t receive, including with extra hours of services.
NMCD will need to report back to the PED, and the file will remain open until the PED is satisfied that the Corrections Department has fixed the problems.
If NMCD fails to abide by the corrective action plan, it could open itself up to “further consequences” from the PED. Kauffman said that could include taking the Corrections Department to court.
Making the changes NMCD needs to provide better education opportunities, Kauffman hopes, will help improve students’ lives while in prison and help keep them from going back once they’re out. In the long run, he hopes that will make New Mexico safer.
“It’s the humane thing to do,” he told the Journal. “I only see the benefit that it has, both for the inmates (and) for the community.”
