September 9, 2005

The Honorable Mitch Daniels
Governor, State of Indiana
Office of the Governor
State House, Room 206
Indianapolis, IN 46204-2797
Re: 	 Investigation of the South Bend Juvenile

Correctional Facility, Indiana 

Dear Governor Daniels:
I am writing to report the findings of the Civil Rights
Division’s investigation of conditions at the South Bend Juvenile
Correctional Facility (“South Bend”) in South Bend, Indiana. On
February 10, 2004, we notified you of our intent to conduct
investigations of South Bend and two other juvenile correctional
facilities, the Logansport Juvenile Diagnostic/Intake Facility
(“Logansport”) and the Plainfield Juvenile Correctional Facility
(“Plainfield”), pursuant to the Civil Rights of Institutionalized
Persons Act, 42 U.S.C. § 1997 (“CRIPA”) and the pattern or
practice provision of the Violent Crime Control and Law
Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141").1
As we noted, both CRIPA and Section 14141 give the Department of
Justice authority to seek a remedy for a pattern or practice of
conduct that violates the constitutional or federal statutory
rights of children in juvenile justice institutions.
On May 12-14, 2004, we conducted an on-site inspection of
South Bend. We were accompanied by expert consultants in mental
health care, juvenile justice, and special education. We
interviewed staff members, youth residents, mental health care
providers, teachers, and administrators. Before, during, and
after our visit, we reviewed an extensive number of documents,
including policies and procedures, incident reports, youth
detention records, mental health records, grievances from youth
residents, unit logs, orientation materials, staff training
materials, and school records. Consistent with our commitment to
1

Our findings regarding Logansport and Plainfield are
provided by separate letters, but are referenced here.

- 2 
provide technical assistance and conduct a transparent
investigation, at the conclusion of our tour, we conducted an
exit conference with facility and Indiana Department of
Correction (“IDOC”) officials, during which our consultants
conveyed their initial impressions and concerns.
At the outset, we commend the staff of South Bend for their
helpful, courteous, and professional conduct throughout the
course of the investigation. We also wish to express our
appreciation for the cooperation of IDOC officials.
Consistent with our statutory obligation under CRIPA, we now
write to advise you of the findings of our investigation, the
facts supporting them, and the minimum remedial steps that are
necessary to address the deficiencies we have identified. As
described more fully below, and in the findings letters also
issued today in regard to Logansport and Plainfield, we conclude
that certain deficiencies at South Bend violate the
constitutional and federal statutory rights of the youth
residents.
I.

BACKGROUND

South Bend is a 138-bed facility for boys from ages 12 to
18. Although a juvenile correctional facility has existed at the
same site since 1980, the current South Bend facility opened in
March 2002. South Bend reports that the average length of stay
for youths is six months. The residents of South Bend are housed
in eight 16-bed dormitory units, which open into two large day
rooms. There is also a ten-bed transitional unit for youths who
are approaching release from the facility.
South Bend is a minimum security facility housing low-risk
to medium-risk juveniles. At the time of our tour of South Bend,
approximately 8 percent of its residents were “status
offenders.”2
South Bend utilizes a level program that is mandated by the
IDOC as part of its comprehensive case management system. The
program consists of several levels that a youth is required to
complete in order to qualify for release. A youth’s progress
through the levels is measured against his “Individual Growth
Plan,” which is a set of long-term and short-term cognitive and
behavioral goals specifically designed for the youth by his
2

Status offenders are juveniles adjudged to have
committed an act that would not be a crime if committed by an
adult (for example, truancy from school or alcohol consumption).

- 3 
interdisciplinary treatment team, as well as interventions to be
utilized to achieve those goals. The youth’s treatment team,
which includes custody, mental health, and educational
professionals, decides when a youth has successfully completed a
level. Unanimous approval by the team is required for a youth to
move to the next level.
All male juveniles entering the IDOC, including those who
ultimately are committed to South Bend, are initially sent to
Logansport for a 13-day intake period. According to Logansport
officials, during this intake period each youth undergoes a
physical examination; dental, vision and hearing screenings; an
intellectual and educational assessment; a risk and needs
assessment; a substance use assessment; a crimino-psychosocial
history; and, if deemed necessary, is referred to a psychiatrist
and/or psychologist. See Logansport Findings Letter at 2. At
the conclusion of the 13-day intake process, juveniles are
classified and transferred to one of seven IDOC operated juvenile
treatment facilities (which include South Bend), or to one of
four privately-operated facilities.
II.

FINDINGS

We find that South Bend fails to adequately protect the
juveniles in its care from harm. We also find constitutional
deficiencies in the facility’s mental health care. Finally,
South Bend fails to provide juveniles with disabilities education
services required by the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1401.
A.

PROTECTION FROM HARM

As a general matter, the State must provide confined
juveniles with reasonably safe conditions of confinement.
Youngberg v. Romeo, 457 U.S. 307 (1982); Nelson v. Heyne,
491 F.2d 352 (7th Cir. 1974). Such constitutionally mandated
conditions include the right to be free from undue restraint and
the use of excessive force by staff. Youngberg, 457 U.S. at 31516; Nelson, 491 F.2d at 356. Juveniles in state custody also
have a constitutional right to be reasonably protected from harm
inflicted by third parties. K.H. v. Morgan, 914 F.2d 846, 851
(7th Cir. 1990). Neither the Supreme Court3 nor the Seventh

3

See Ingraham v. Wright, 430 U.S. 651, 669 n.37 (1977)
(Although holding that the Eighth Amendment is inapplicable to
the paddling of schoolchildren, the Court declines to consider
(continued...)

- 4 
Circuit4 has determined definitively whether the Eighth Amendment
or the Fourteenth Amendment provides the governing constitutional
standard for conditions in juvenile facilities. For purposes of
this letter, we need not resolve which standard governs because
we find that the conditions at South Bend violate even the more
stringent Eighth Amendment standard.
1.	

Youth Violence

Juveniles in institutions have a constitutional right to be
reasonably safe from harm inflicted by other juveniles in the
facility. K.H. at 851; see also A.M. v. Luzerne Cty. Juvenile
Detention Ctr, 372 F.3d 572, 585 n.3 (3rd Cir. 2004). We find
that there is an unacceptably high rate of youth violence at
South Bend. The atmosphere at South Bend is chaotic and
dangerous. Youths frequently fight with each other without
detection or intervention by staff. Often, staff only become
aware of an assault after the fact, when a youth comes forward
for medical attention or staff review a video surveillance tape.
Moreover, as discussed below, staff members and youths agree that
staff members are unable to control the situation due to
inadequate staffing. The following are examples of incidents of
youth-on-youth assaults, as reported in facility investigative
reports:
•	

On May 9, 2004, a youth attacked another youth in the shower
area, breaking the victim’s nose. The victim also received
stitches to close another wound. No staff reported
observing the incident. Initially, the victim reported that
he was injured when he slipped in the shower. Only after
the facility nurse determined the injury to be the result of
a direct blow to the nose did the victim acknowledge that he
had been attacked.

•	

On March 30, 2004, a video surveillance camera filmed a
youth beating another youth without detection by staff.

3

(...continued)
whether the Eighth Amendment applies to conditions in juvenile
institutions).
4

In Nelson, the Seventh Circuit held that the State
violated the Eighth Amendment rights of confined juveniles by
administering abusive corporal punishment and forced
tranquilizing medication, but violated their Fourteenth Amendment
rights by failing to provide them with minimally acceptable
rehabilitative treatment. 491 F.2d at 357; 360.

- 5 
-

•	

Only after the victim reported the assault and the tape was
reviewed did this incident come to light.
On March 25, 2004, staff observed one youth hitting another
youth in his dormitory bed “constantly,” until staff
restrained the aggressor and took him to segregation.

•	

On March 21, 2004, two youths on Treatment Unit East were
observed punching each other with closed fists numerous
times, leaving bruises and scrapes on one of the two youths.

•	

On March 2, 2004, two residents of Treatment Unit East were
filmed by the dormitory surveillance camera hitting another
youth “multiple times in his body with closed fists, and
then [running] back to their beds.” Later that same
evening, the same two residents assaulted the same youth
again, hitting him multiple times as he lay in his bed.
These attacks went undetected by the staff on duty at the
time. A report was not written until more than a week
later. The victim sustained bruises across his body.

•	

On February 25, 2004, a youth in the recreation area emerged
from the rest room and began striking a peer “with closed
fists numerous times in the face area.” The victim was
treated for injuries to his face.

•	

On February 22, 2004, two separate fist fights on Treatment
Unit West were reported. In one of the fights, staff
observed the aggressor strike the victim with a closed fist
several times, leaving him with a bloody nose and other
injuries.

Moreover, the actual number of youth assaults is likely much
higher than what is reported. During our tour, youths
consistently reported that there are numerous incidents of youthon-youth violence about which staff are unaware. The youths
explained that because they sleep in large dormitories with
minimal monitoring by staff, there are ample opportunities for
fights to occur without staff’s knowledge. Moreover, although
South Bend recently installed cameras to monitor the dormitories,
youths are able to avoid being recorded by fighting in the
cameras’ “blind spots.” Likewise, youths report that because the
shower areas are not adequately supervised by staff, youth
assaults commonly occur there without staff interference. Thus,
in light of the high potential for undetected and unreported
youth violence, the amount of violence is likely much higher than
what the facility documents.
The most obvious and glaring reason for the frequency of
violence among youths in this minimum security facility is that

- 6 
there are not enough staff to supervise the youths adequately.
Constitutional standards require that juvenile facilities have a
sufficient number of adequately trained staff members to ensure
the safety and security of its juvenile residents. Without an
adequate number of officers on duty, existing staff cannot
respond in a safe and timely manner when violence and other
crises do occur. Moreover, without adequate numbers of qualified
staff, correctional officers do not have the time to build the
relationships with youths that are necessary to identify when
trouble is brewing on their unit and prevent incidents from
occurring.
At South Bend, there are rarely more than two staff assigned
to supervise as many as 64 youths. This ratio places the youths
– as well as staff – at significant risk of serious harm.
Moreover, the facility’s large day rooms and open sleeping
dormitories permit significant numbers of residents to congregate
in largely unstructured settings, increasing the potential for
serious problems to develop among the youths. Our observations
during our tour underscore this point. During one afternoon, we
observed a day room filled with youths who did not appear to be
engaged in any programming. There was one staff present. He
explained that it was “Team Day,” i.e., the day youths meet with
their treatment team to discuss their progress in the treatment
program and, consequently, the youths did not have to attend
school. The atmosphere in this day room was particularly chaotic
and unstructured; many youths were congregating in groups, some
were watching TV, some were sleeping on the floor, and others
were sitting idly. Large groups of idle juveniles can be very
dangerous when adequate staffing is not provided. Juveniles who
are not engaged in structured activities are more likely to
engage in mischief which, if adequate staffing is not provided,
has the potential to spiral into fighting, assaults and other
dangerous activities.
We also repeatedly observed residents in the transition unit
without any staff present. When we inquired about this, staff
reported that these youths were being monitored via the control
room. Camera surveillance can enhance security by providing for
a faster response to calls for back-up staff as well as
facilitating the identification and prosecution of aggressors.
However, cameras cannot ensure a timely response to crises if no
staff are present to intervene, nor can they identify potential
crises and prevent youth attacks from occurring. It is dangerous
and unacceptable for any group of incarcerated juveniles to be
without direct staff supervision.

- 7 
Our findings regarding the inadequate number of staff at
South Bend are not likely to surprise its staff or residents.
During our tour, staff readily acknowledged that there are not
enough of them to safely supervise the youths in their care. As
one correctional officer informed us, “We need more people. We
can’t do what we need to be doing.” The residents echoed these
sentiments to us. One youth summed the situation up by stating,
“With two staff to 64 kids, no way staff can control it.”
2.

Use of Lethal Force

Juveniles at South Bend have a right to be free from
unnecessary restraint and the use of excessive force. Youngberg,
457 U.S. at 315-16; Nelson, 491 F.2d at 356. See also H.C. v.
Jarrad, 786 F.2d 1080, 1089 (11th Cir. 1986); Milonas v.
Williams, 691 F.2d 931, 942 (10th Cir. 1982). IDOC’s use of
physical force policy includes a provision regarding “Lethal
Physical Intervention.” The provision appears in a section
entitled, “Juvenile Facilities Step Definitions,” and appears to
be the final measure in a series of graduated steps to be taken
by staff in the event of an incident that might result in the use
of force on a youth. “Lethal Physical Intervention” is not
defined in this policy, although a separate definition section of
the policy includes “deadly force,” which is defined as “any
force which creates a substantial risk of serious bodily injury
or death or which the person using the force reasonably believes
creates a substantial risk of causing serious bodily harm or
death.” In any case, the policy includes no guidelines or limits
as to when the use of lethal force is permissible. A policy that
permits the use of lethal force, in any setting but particularly
in a juvenile facility, without clear limits and guidelines
places juveniles at significant risk of serious harm or death.
3.

Grievances

The dysfunctional grievance system at South Bend contributes
to the State’s failure to ensure a reasonably safe environment.
An adequately functioning grievance system ensures that youths
have an avenue for bringing serious allegations of abuse and
other complaints to the attention of the administration. It also
provides an important tool in evaluating the culture at the
facility, and alerting the administration about dangers and other
problems in the facility’s operations.
Our investigation revealed a number of encouraging aspects
to South Bend’s grievance system. For example, we were pleased
to find that South Bend provides grievance forms and locked
grievance boxes on the units, and that a grievance specialist

- 8 
checks the boxes on a daily basis. The residents are aware of
the grievance process and know the identity of the grievance
process manager. In fact, the youths regularly utilize the
grievance system at South Bend.
Nevertheless, we find that South Bend’s grievance system to
be inadequate. In many other cases, grievance reviewers appeared
to ignore the substantive allegations made by the youths, even
when the grievance contained serious allegations of deprivations
of rights and/or abusive or inappropriate conduct by staff. The
following examples are illustrative:
•	

On May 10, 2004, a youth filed a grievance stating that he
had been in the segregation unit for five days and could not
get a grievance form. He also wrote that he was not issued
a toothbrush or toothpaste for three days. The May 13
response said only, “The forms are replenished on the units
weekly.”

•	

A youth filed an undated grievance alleging that a staff
member had made sexually graphic comments about his mother
and sister, and called him a “fool” and “ignorant.” The
youth requested that the staff member be told to stop name
calling and “putting us students down.” The grievance was
filed on the wrong form. The April 29, 2004 response stated
only, “You must use a Step 1 Grievance. See attached.”5

•	

A grievance was filed by another youth on April 11, 2004,
alleging that a staff person called a different resident
profane names and threatened to have the resident
reclassified. The grieving resident suggested that the
incident should be “looked into.” The April 16 response
stated, “You cannot file a grievance for another student.”

•	

On April 5, 2004, a youth filed a grievance alleging that a
staff person “has disrespected me by saying shut up and she
don’t give a f--- what I think [expletive deleted].” The
youth suggested that the staff person be “written up.” The
May 4 response said, “You cannot suggest punishment for
staff.”

5

“Complaint Step 1" refers to a specific form that
residents must first submit, notifying the Grievance Specialist
of his desire to file Grievance, which is defined in IDOC’s
policy as “a legible, formalized version of a complaint...that
has been signed and dated by a student and the Grievance
Specialist.”

- 9 
South Bend’s grievance process policy also provides that a
youth’s access to the grievance process may be denied if it is
determined that the youth is “attempting to flood the procedure
with frivolous complaints.” See Section XX of South Bend’s
“Offender Grievance Process.” Access to the mechanism through
which youths can communicate serious allegations and concerns to
the administration is a critical element of ensuring that youths’
rights are protected. We acknowledge that certain limitations
may be imposed on repetitive and frivolous filings. But the mere
existence of this provision, without appropriate guidance for
staff, may inhibit the filing of grievances and, therefore,
undermines the purpose and effectiveness of the process.
B.

MENTAL HEALTH CARE

The Constitution requires that youths in juvenile justice
institutions receive adequate mental health care. Youngberg,
457 U.S. at 323, n.30.; Nelson, 491 F.2d at 360; see also K.H.,
914 F.2d at 851; A.M., 372 F.3d at 585 n.3. We find that certain
aspects of the mental health care at South Bend are
constitutionally inadequate. Specifically, we find that South
Bend fails to provide adequate psychopharmacological services.
As noted above, youths placed at South Bend first spend
thirteen days at Logansport, purportedly for evaluation and
assessment. And, as we explain in our letter issued today
regarding mental health services at Logansport, when a youth is
admitted to Logansport and reports that he is currently receiving
psychopharmacological treatment,6 he is typically permitted to
finish whatever medication he has with him at the time of intake.
If the youth reports that he is currently receiving
psychopharmacological treatment but does not have any medication
with him, then Logansport’s intake nurse will refer him to the
psychiatrist, who will meet with the youth within seven days. In
either scenario, however, unless the youth is overtly exhibiting
the symptoms the medication purports to treat, medication is
automatically discontinued once the youth’s personal supply has
been exhausted.7 Logansport’s psychiatrist reports that the
6

Psychopharmacological treatment refers to the use of
psychotropic medications to control symptoms of mental illness.
7

In interviews during our visit, Logansport’s
psychiatrist stated that it was his understanding that the
discontinuation of psychotropic medications once a youth exhausts
his personal supply is mandated by IDOC policy. IDOC’s medical
director, however, stated that no such policy exists. Thus, the
(continued...)

- 10 
purpose of this discontinuation practice is to institute a “washout” period. A wash-out period is a medication-free time during
which, in theory, the mental health professional will monitor the
youth’s behavior and assess whether any psychopharmacological
treatment is appropriate.
A wash-out period, if implemented appropriately, can be a
useful diagnostic tool for ensuring the appropriate use of
psychotropic medications. However, in order to meet generally
accepted professional standards of care,8 a youth who undergoes a
wash-out period must be carefully monitored and assessed by a
qualified mental health clinician before, during, and after
discontinuation of the medication in order to determine whether a
return to medication is warranted. Without adequate monitoring
and assessment throughout this time, youths are exposed to a
number of potential harms. Most obviously, youths whose mental
health needs are not adequately identified and treated may suffer
mental distress and anguish, as well as an increased risk of
suicidality. Additionally, the youths are less likely to be able
to successfully complete the rehabilitation program, a
requirement for release from the treatment facility. Moreover,
juveniles with unmet mental health needs are more likely to
demonstrate unacceptable behaviors that elicit punitive responses
from staff.
Because residents are transferred out of Logansport shortly
following the discontinuation of medication,9 the bulk of the
7

(...continued)
origin of this practice remains unclear.
8

In assessing the constitutional adequacy of mental
health care practices at South Bend, we must consider whether
professional decisions substantially depart from accepted
professional judgment. See Youngberg, 457 U.S. at 323; Estate
of Cole v. Fromm, 94 F.3d 254, 262-63 (7th Cir. 1996) (deriving
the standard for assessing the adequacy of mental health care
provided to pretrial detainee from Youngberg).
9

We also find the characterization of IDOC’s medication
discontinuation policy as a diagnostic wash-out period to be
problematic. The fact that youths entering Logansport are
permitted to finish whatever quantity of medication they may
happen to bring in with them before the prescription is
discontinued suggests that the subsequent discontinuation is not
driven by medical considerations. Indeed, if the driving force
for discontinuing a medication is truly a lack of need for that
(continued...)

- 11 
requisite monitoring and assessment should occur at the treatment
facility to which a youth is transferred, in this case, at South
Bend. In our review of South Bend’s mental health services,
however, we found that youths whose medications are discontinued
at Logansport are not provided with adequate monitoring and
assessment at South Bend to determine whether there is a need to
resume the psychopharmacological treatment.
We found that the failure to reassess juveniles after
medication is discontinued at Logansport occurs most frequently
with youths who had been taking medication to treat Attention
Deficit/Hyperactivity Disorder (“ADHD”). ADHD is one of the most
common of the psychiatric disorders that appears in childhood and
is characterized by problems with inattentiveness, over-activity,
impulsivity, or some combination of these symptoms. A youth with
untreated ADHD can exhibit a variety of behaviors such as being
unable to sit still, talking excessively, interrupting and
intruding on others, failing to pay attention in school and on
the unit, failing to listen and follow directions, and having
difficulty engaging in activities that require sustained
cognitive effort. Most medications that are prescribed to treat
ADHD are short-acting. That is, within a day or two of
discontinuing the medication, a youth will return to his
unmedicated baseline status.
Over one third of the juveniles whose mental health records
we reviewed had entered South Bend with an order from Logansport
for an ADHD evaluation. For 80 percent of these youths, their
evaluations were significantly delayed. Some of the youths had
to wait for two months to be assessed. Many others were still
waiting to be assessed even though they had entered the IDOC
several weeks prior to the time of our tour. These delays expose
juveniles to the serious and potentially harmful consequences
identified above, including unnecessary suffering, risk of
suicidality, and interference with a youth’s ability to be
successful in South Bend’s rehabilitation program as well as in
school. Moreover, given that South Bend’s rehabilitation program
focuses on cognitive and behavioral improvements, precisely the
areas that treatment for ADHD addresses, delaying ADHD
assessments for several months is a particularly troublesome
practice.
9

(...continued)
medication, then it should be discontinued regardless of whether
the juvenile brought in a supply of his own. And, in fact, when
we asked Logansport’s psychiatrist what the rationale is for
permitting residents to finish medications they have with them,
he stated that it was to avoid the medication going to waste.

- 12 
C.

SPECIAL EDUCATION SERVICES

South Bend violates the federal statutory rights of students
with disabilities by failing to provide adequate special
education in its school program,10 in violation of the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§1401 et seq.11 At the time of our tour, approximately
40 percent of all South Bend residents had been identified as
qualifying for special education services under the IDEA.
At the outset, we note that there are several positive
aspects of the educational program at South Bend. For example,
we were impressed with the enthusiasm of the teaching staff at
South Bend. Additionally, the school publishes a literary
magazine which is an excellent vehicle for student expression and
recognition. The utilization of university students to tutor
South Bend students is a laudable effort to provide positive role
models to students. We were also pleased to see that students
with disabilities spend most of their school day in general
education classes, as envisioned under the IDEA. 34 C.F.R.
§ 300.550(b)(1)(requiring that “to the maximum extent
appropriate, children with disabilities, including children in
public or private institutions or other care facilities, are
educated with children who are nondisabled”). Nevertheless, we
find that South Bend fails to provide special education services
to juveniles with disabilities as required under the IDEA.
1.

IEPs

The IDEA requires that each student with a disability have
an Individualized Education Program (“IEP”), and describes the
IEP components required to ensure that each student receives
adequate special education services. 34 C.F.R. §§ 300.346,
300.347. The IEPs developed at South Bend, however, give us
great pause as to whether students with disabilities receive
required special education services.
Specifically, we are concerned whether the IEPs developed by
South Bend are not sufficiently individualized to meet the unique
10

South Bend’s school program is called the Council Oaks
Jr./Sr. High School.
11

We note that the IDEA was reauthorized and amended by
the Individuals with Disabilities Education Improvement Act of
2004, PUB. L. NO. 108-446, 118 Stat. 2647 (2004), effective July
1, 2005. The IDEA provisions cited herein are substantively the
same as those in force at the time of our tour.

- 13 
needs of each student with a disability, as required under the
IDEA. 34 C.F.R. §§ 300.346, 300.347. The vast majority of IEPs
we reviewed contained “boilerplate” language regarding the amount
of special education services a student needs. For example, all
of the 18 randomly-selected IEPs we reviewed provided that
either 13 percent or 8.5 percent of the students’ instruction
should be comprised of direct special education services. If
South Bend’s IEPs were truly based on the individual needs of the
student, it is highly unlikely that such a large percentage of
its students with disabilities would require identical levels of
direct special education services.
We also found several instances where a youth’s direct
special education services were dramatically lower than what he
had received in his previous educational setting without adequate
justification. In two of the IEPs we reviewed, for example, the
youths’ daily special education services were reduced from
100 percent at their previous schools to 13 percent at South
Bend. Two other youths’ special education services were reduced
from 100 per cent to 8.5 percent daily. These drastic reductions
in services without adequate justification, as well as the
boilerplate language used in many of its students’ IEPs, suggest
that South Bend is tailoring IEPs to what is available, rather
than to the students’ individualized needs.
2.	

Instructional Services for Students 

with Disabilities

a.	

Individualized Instruction

The IDEA requires that students with disabilities receive
specially designed instruction in which the content, method,
and/or delivery of instruction is adapted as necessary to meet
the unique needs of the student, and to ensure his access to the
general curriculum. 34 C.F.R. § 300.26(a)(3). For example, a
student with disabilities may require a seating change, more time
on written assignments, oral testing, specific instructional
cues, etc. The general education teacher typically is
responsible for implementing the instructional adaptations
identified in the IEP. South Bend fails to provide special
education students with modified instruction as required by their
IEPs. In fact, during our tour, we observed no individualized
instructional adaptations or assessment accommodations in any of
our classroom observations.
South Bend’s provision of insufficiently individualized
instructional services to students with disabilities appears to
result from several factors. First, some of South Bend’s general

- 14 
education teachers are teaching subjects in which they are not
licensed. This further inhibits their ability to provide
appropriate individualized instructional adaptations in those
subjects. Additionally, the absence of a system for obtaining
qualified substitute teachers, coupled with a high rate of
teacher absences, further reduces the amount and quality of
individualized instruction provided to students with
disabilities.
Finally, at the time of our tour, South Bend did not have a
principal to administer the school, nor are we aware of any plan
in effect to recruit a school principal. The lack of a school
principal contributes to the inadequate instructional services
provided by the school’s education staff. Without a school
principal, there is not adequate oversight of the timely
provision of adequate and appropriate special education services,
or evaluation of teacher performance.
b.

Curriculum

The IDEA provides that all students with disabilities are
guaranteed a free and appropriate public education which meets
the standard of the State education agency. 20 U.S.C.
§§ 1401(9)(b); 1412(a)(1)(A). See also 34 C.F.R.
§ 300.600(a)(2)(ii). South Bend fails to provide special
education students the curriculum necessary to meet State
standards. For instance, it does not offer classes in physical
education, health, foreign language or elective courses. All of
these are required courses for completion of secondary studies in
Indiana public schools.12
The IDEA further requires that students with disabilities
receive instruction that is specially designed to meet the
students’ unique needs, including instruction in vocational
education13 when necessary to meet the students’ unique needs.
34 C.F.R. § 300.26(a)(2)(iii). No vocational education services
are offered to South Bend students. Curiously, in the sample of
12

13

511 IN. ADMIN. CODE § 6.1-5-4(c).

“Vocational education” means “organized educational
programs that are directly related to the preparation of
individuals for paid or unpaid employment, or for additional
preparation for a career requiring other than a baccalaureate or
advanced degree.” 34 C.F.R. § 300.26(b)(5).

- 15 IEPs we reviewed, not one student was identified as needing
vocational education even though several IEPs identified needs
for vocational rehabilitation after students leave South Bend.
Again, this suggests that these students’ IEPs were developed
based on the courses available at South Bend, rather than on the
students’ individual needs.

c.

Access to Instruction

The IDEA requires that students with disabilities have
access to free and appropriate public education services which
comport with the standards of the State education agency.
20 U.S.C. §§ 1401(9)(b); 1412(a)(1)(A). See also 34 C.F.R.
§ 300.600(a)(2)(ii). It is critical that students with
disabilities have access to sufficient instructional time in
order to access the general education curriculum and achieve
academic success. South Bend unacceptably limits access to
instructional time in three significant ways.
First, South Bend only provides class instruction four days
per week. On Wednesdays, no students attend classes. Instead,
multi-disciplinary team conferences are held with certain
students to discuss the student’s progress in the facility’s
rehabilitation program. Students who are not attending team
conferences that day are sent to “study hall” for the entire day,
during which time they receive no instructional services and
rarely even have school work to complete. While we appreciate
South Bend’s dedication to implementation of its rehabilitation
program, this progress review cannot be at the expense of
required education services to students with disabilities.
Second, South Bend’s policy regarding student orientation
unnecessarily restricts access to special education services for
juveniles with disabilities. Upon arrival at South Bend, all
students spend approximately two weeks in “orientation” before
they are enrolled in school. During this time, they are given a
packet of facility information to review. Once the student is
finished with the packet (an exercise that takes no more than a
few hours to complete), he essentially sits in study hall with
nothing to do for the remainder of the two weeks. Significantly,
this two-week delay in school enrollment follows the student’s
13-day stay at Logansport, during which time no special education
services are provided. Thus, youths with disabilities spend

- 16 
their four weeks in the IDOC without access to any special
education services.14
Third, segregated students with disabilities do not have
adequate access to special education services. Although
educational packets are provided to students in segregation, the
materials do not relate to current class work and, consequently,
do not allow the student to continue access to appropriate
instruction. This practice has the potential to severely limit
the progress of students with disabilities.
III.

REMEDIAL MEASURES

In order to rectify the identified deficiencies and protect
the constitutional rights of juveniles confined at South Bend,
IDOC should implement, at a minimum, the following remedial
measures:
1.	

Ensure that youths are adequately protected from physical
violence by other youths;

2.	

Ensure that there is sufficient, adequately trained staff to
safely supervise the residents at all times;

3.	

Develop and implement a use of force policy that provides
clear guidelines and appropriate limits on the use of force;

4.	

Provide adequate training and supervision to correctional
staff regarding safe and appropriate use of force and
physical restraint;

5.	

Develop and implement a grievance system that ensures
resident access to a functional and responsive grievance
process;

6.	

Provide adequate psychopharmacological treatment to youths.
If a wash-out period is implemented for youths who enter
Logansport on psychotropic medication, IDOC should:
a.	

Conduct an adequate baseline assessment of the youths
and ensure adequate documentation of the baseline;

b.	

Provide adequate monitoring during the wash-out period;

14

Given that some youths at South Bend are status
offenders who have been incarcerated for truancy, denying access
to education services is particularly inappropriate and ironic.

- 17 
c.	

Provide timely follow-up assessments to determine
whether a return to treatment with medication is
warranted; and

d.	

Ensure that psychopharmacological treatment is promptly
resumed when necessary;

7.	

Develop and implement adequate IEPs to students with
disabilities;

8.	

Provide individualized instructional services to students
with disabilities in accordance with the IDEA;

9.	

Ensure students with disabilities have sufficient access to
an adequate curriculum; and

10.	 Ensure students with disabilities have sufficient access to
instructional services.
*

*

*

As stated above, we appreciate the cooperation we have
received from IDOC officials and facility staff throughout this
investigation. We hope to be able to continue working with the
State in an amicable and cooperative fashion to resolve the
deficiencies found in the operation of this facility. Provided
that our cooperative relationship continues, we will forward our
expert consultants’ reports under separate cover. Although the
reports are the consultants’ work – and do not necessarily
reflect the official conclusions of the Department of Justice –
the observations, analyses, and recommendations contained in the
reports provide further elaboration of the issues discussed in
this letter and offer practical assistance in addressing them.
In the unexpected event that we are unable to reach a
resolution regarding our concerns, the Attorney General is
empowered to institute a lawsuit pursuant to CRIPA to correct the
deficiencies of the kind identified in this letter 49 days after
appropriate officials have been notified of them. 42 U.S.C.
§ 1997b(a)(1).
We would prefer, however, to resolve this matter by working
cooperatively with you. We have every confidence that we will be
able to do so in this case. The lawyers assigned to this matter
will be contacting your attorneys to discuss this matter in
further detail. If you have any questions regarding this letter,
please call Shanetta Y. Cutlar, Chief of the Civil Rights
Division’s Special Litigation Section, at (202) 514-0195.

- 18 Sincerely,
/s/ Bradley J. Schlozman

Bradley J. Schlozman
Acting Assistant Attorney General

cc:	 The Honorable Steve Carter
Office of the Indiana Attorney General
J. David Donahue, Commissioner
Indiana Department of Correction

Dawn Buss, Superintendent

South Bend Juvenile Correctional Facility

Curtis Correll, Superintendent

Plainfield Juvenile Correctional Facility

Kellie Whitcomb, Superintendent

Logansport Juvenile Intake/Diagnostic Facility

The Honorable Joseph S. Van Bokkelen

United States Attorney

Northern District of Indiana

The Honorable Susan W. Brooks

United States Attorney

Southern District of Indiana

John H. Hager
Assistant Secretary
Office of Special Education and Rehabilitative Services
United States Department of Education
Troy Justeson

Acting Director

Office of Special Education Programs

United States Department of Education