by Ed Lyon

On July 15, 2021, a settlement agreement and order was entered in U.S. District Court for the District of New Jersey, putting an end to a four-year-old class action lawsuit against the state’s Department of Corrections (DOC) and Department of Education (DOE) over the pitiful state of education offered to youthful offenders with special needs incarcerated in state prisons.

The suit was originally filed on January 11, 2017, with three young plaintiffs: Adam X., Brian Y. and Casey Z. According to Rebecca Rogers, managing attorney and co-counsel for New York City-based Disability Rights Advocates (DRA), which is one of those representing the plaintiffs, all three entered DOC “between the ages of 18 and 19” and spent time in administrative segregation (Ad-seg). At times, she said, they were even caged while being taught. When they asked questions, they were often told to save them to ask a prisoner tutor.

After class certification in the suit, the three original plaintiffs and other class members have been represented by private attorneys Brian C. Friedman and William C. Silverman in conjunction with the state chapter of the American Civil Liberties Union (ACLU), the Arc of New Jersey (ARC) and DRA.

The suit addressed DOC and DOE’s failure to meet the demands of emotionally disturbed and other special-needs prisoner students regarding their educational requirements, training and attainment under state and federal law. For those in a prison’s general population (GP), schooling provided was at best dismal and at worst effectively nonexistent, with extensive reliance on the use of worksheets in GP and even more so in Ad-seg, where nearly all class members resided for at least part of their sentences as a result of special needs-driven behavior not seen as such by officials and therefore inappropriately punished.

To DOC and DOE’s credit, they began working with plaintiffs’ attorneys in 2018 to effect positive and meaningful changes through negotiations, according to ACLU attorney Tess Borden, who said that “[o]ver the course of these years the defendants, the departments of Education and Correction have really taken steps to commit to remedying these failures.”

She added the settlement ruling is “substantive” because in addition to the state agencies’ commitments to “provide and monitor special education services, it also has procedural elements built in,” namely a “robust” five-year monitoring term for a special court-approved third party to oversee implementation of the settlement agreement and report to the court.

Rogers said she believes this settlement agreement “will serve as a national model,” though she said it was not known if other corrections departments in other states offer similar programs.

Perhaps the most striking feature about the suit is the state’s acquiescence to the settlement, with no appeal. This is quite a turnaround for a system that a few years ago was trying to school young offenders kept in cages.

Another feature of note is compensatory funds for the lead plaintiffs. Adam X. will receive $16,000, Brian Y. $32,000 and Casey Z. $16,000, as well as an incentive award of $5,000 apiece for their participation in the lawsuit. Compensatory education and funding is available for other affected class members, up to $8,000 every year the prisoner-student was denied services, provided they apply within two years after the effective date of the settlement agreement judgment. That was set to be formally entered after a fairness hearing in January 2022.

DOE will monitor DOC’s compliance with and implementation of the settlement’s terms and requirements. The external civilian monitor, Dr. Susan Roberts, will have access to the same records that DOC submits to DOE, as well as access to prison units and classrooms. The five-year monitoring period will be divided into three increments for the purpose of reporting compliance to the court. Plaintiffs’ counsel may access any of the monitor-held information pursuant to written request or court order. Some of the many things that DOC is obligated to do under the settlement include:

• seeking out and identifying prisoner-students who are special-education eligible;

• cultivating and applying state-compliant Individualized Education Plans as well as § 504 plans tailored to each student’s needs;

• giving personalized educational transitional services to qualified prisoner-students;

• providing classroom instruction four hours daily;

• limiting “cell study” time and providing for in-person instruction even in those circumstances;

• not using worksheets as primary instruction tools;

• requiring properly certified teachers and proven instructional techniques;

• ensuring educational conditions for prisoner-students in close-custody units to emulate those in GP units; and

• providing translators for special needs prisoner-students who are not fluent English speakers.

Named plaintiff Casey Z. is now 25 years old. In a court declaration he stated, “Before this litigation, I was not getting a proper education, materials, or assistance from real teachers or tutors when I was supposed to be receiving special education services. These experiences made me feel like I was ready to quit and give up.”

The defendants also agreed to pay $975,000 in attorney fees and costs to the plaintiffs’ counsel, the ACLU of New Jersey.

DOC spokesperson Liz Velez promised that her department “remains steadfast in its commitment to expand its offerings that support holistic rehabilitation for all.” See: Adam X. v. New Jersey Dept. of Corrections, USDC (D.N.J.), Case No. 3:17-cv-00188-FLW-LHG. 

Additional sources: Bergen Record, InsiderNJ.com

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