Settlement Enhancing Particular Ed Providers in NJ State Prisons Preliminarily Accepted – Authorized Reader

The case, Adam X. et al. v. New Jersey Department of Corrections and Department of Education et al., was filed in January 2017 and offers a national example for special education services in prison.

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The New Jersey Department of Corrections (NJDOC) will drastically improve the provision of special education services for people in its prisons, according to a settlement preliminarily approved by the federal District Court for the District of New Jersey last month. The class action settlement resolves claims brought by three students who alleged they were denied special education in prison by the NJDOC and New Jersey Department of Education (NJDOE) in violation of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (ADA). The ACLU of New Jersey and The Arc of New Jersey joined the case as organizational plaintiffs. The plaintiffs were represented by the ACLU of New Jersey Foundation, Disability Rights Advocates, and Proskauer Rose LLP. Read the settlement agreement.

“After years of negotiations, special education services will now be meaningfully accessible to people in New Jersey prisons,” said ACLU-NJ Legal Director Jeanne LoCicero. “The changes achieved by this settlement drastically improve special education services for students in prison and put in place a comprehensive plan for monitoring the provision of those services for years to come.”

The settlement agreement comes more than four years after the plaintiffs filed their class action complaint in January 2017. The agreement will overhaul special education services in New Jersey state prisons by mandating the implementation of newly created policies across the NJDOC and providing comprehensive monitoring by the NJDOE. The NJDOC is adopting new policies that are designed to, among other things:

• Identify students who are eligible for special education;
• Develop and implement Individualized Education Plans and Section 504 Plans according to the individual needs of each student;
• Provide individualized transition services to eligible students;
• Provide at least four hours of instruction per day in a regular classroom setting, except in limited circumstances;
• Limit the use of “cell study” to certain limited circumstances and provide the opportunity for in-person instruction even in those circumstances;
• Prohibit the use of worksheets as the primary method of educational instruction.
• Require the use of appropriately certified teachers and evidence-based instructional methods;
• Develop and implement behavioral assessments and plans and conduct “manifestation determinations” for disciplinary incidents that occur during the day and result in a disciplinary charge (to determine whether those incidents were a manifestation of the student’s disability);
• Take specific steps to ensure conditions of education for students in close custody units reflect classrooms in the general population; and
• Provide interpretation and translation services to students with disabilities who are not fluent in English.

Read more about the NJDOC’s new policies.

The agreement also sets out a five-year term during which the NJDOE, with support from a Court-appointed External Monitor, Dr. Susan Roberts, will undertake robust monitoring of the NJDOC’s provision of special education and related services. During this term, the NJDOE and the External Monitor will conduct site visits, observe classes, interview NJDOC staff and students, and review records. The NJDOE will prepare Corrective Action Plans outlining remedial measures for the NJDOC to undertake and will then verify their implementation. The External Monitor will also produce periodic Monitoring Reports in which she will assess the NJDOC and NJDOE’s substantial compliance with the settlement terms.

“The settlement agreement will improve the lives of many people with disabilities held in New Jersey state prisons,” said Rebecca Rodgers, Managing Attorney at Disability Rights Advocates. “We are hopeful that the changes agreed to will serve as a model for other institutions across the country.” 

The settlement agreement achieves comprehensive relief and establishes a compensatory education program whereby class members can submit claims for services they were denied between January 11, 2015, and October 31, 2020, and may be awarded services or funds to be used for educational, vocational, or reentry purposes. New Jersey has the worst racial disparities in incarceration rates in the country; educational deprivations in state prisons have a disproportionate impact on people of color.

“We represent an incredibly vulnerable but too often ignored population: young people with disabilities being housed in adult prisons,” said Bill Silverman, pro bono partner at Proskauer Rose LLP. “As a result of this important and impactful case, we are pleased that NJDOC and NJDOE will take the necessary steps to provide appropriate special education and related services to class members. We will continue to partner with the ACLU of New Jersey and Disability Rights’ Advocates on this matter as well as other matters to help ensure equal access to justice.”

As part of the Court’s order granting preliminary approval of the settlement agreement, the Court also certified the class. The class includes people who were incarcerated in NJDOC custody any time on or after January 11, 2015, and were or should have been identified as being entitled to special education services. It also includes anyone who entered custody under age 18 and without a high school diploma during those years. It is estimated that the agreement impacts over 400 class members. For more information, read the class settlement notice.

As part of the notice plan approved by the Court, class members are being contacted with information about the settlement agreement. The U.S. District Court for the District of New Jersey has scheduled a Fairness Hearing on January 26, 2022. Read more information about the case, including information on submitting objections, inquiries, and compensatory education forms.

In May 2017, the Court appointed Dr. Joseph Gagnon to review and evaluate the NJDOC’s provision of special education—and the NJDOE’s oversight thereof. Dr. Gagnon spent nearly 95 hours on-site at New Jersey state prisons, interviewed over 60 incarcerated students, observed instruction provided to students with disabilities, met with teaching staff, and reviewed approximately 20,000 pages of documents. He then submitted a report and recommendations in 2018. More than three years of settlement negotiations followed, resulting in the agreement described above.

The ACLU of New Jersey works to defend liberty throughout our state. We are involved in litigation and advocacy on behalf of individuals, and we lobby on scores of bills in the state legislature and local councils. In addition, the ACLU is active in many public education and community organizing projects. We implement legal, legislative, and public education programs in conjunction with large numbers of volunteers to advance the ACLU’s goals of liberty and justice for all. For more information, visit www.aclu-nj.org

Founded in 1993, Disability Rights Advocates (DRA) is the leading national nonprofit disability rights legal center. Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-change, class action cases. DRA is proud to have upheld the promise of the ADA since our inception. Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting and housing. For more information, visit www.dralegal.org.

Proskauer is a leading international law firm with offices in major financial business centers in Asia, Europe, and North and South America. Proskauer has a longstanding commitment to providing legal services and aid to the disadvantaged and poor. It is deeply ingrained in our culture and in everything we do. We are proud to partner with organizations within our communities to make a difference for those who truly need help. Additional information about the firm can be found at www.proskauer.com.