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HANDBERRY v. THOMPSON

August 28, 2002

ZAKUNDA-ZE HANDBERRY, ET AL., PLAINTIFFS,
V.
WILLIAM C. THOMPSON, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Motley, District Judge.

      OPINION
OPINION ON THE PARTIES' CROSS-APPLICATIONS TO AMEND THE EDUCATION PLAN

I. Introduction

Reformation, like education, is a journey, not a destination.
Mary Belle Harris, I Knew Them in Prison (1936)*fn1

Almost exactly six years ago, plaintiffs brought this class action suit against defendants the City of New York, the Board of Education of the City of New York ("BOE"), the New York City Department of Correction ("DOC"), and various city officials (collectively the "City defendants"). Also named as a defendant was the Commissioner of the New York State Education Department. The plaintiff class consists of inmates incarcerated at DOC facilities on Rikers Island who are sixteen to twenty-one years of age and have yet to receive a high school diploma or its equivalent. Plaintiffs allege that defendants have failed to provide them with educational services to which they are entitled under federal and state law.

In January 2000 this court granted plaintiffs' motion for declaratory and partial summary judgment against the City defendants, finding that the City defendants had violated the constitutional and statutory rights of plaintiffs. The court ordered the City defendants to submit for the court's approval a remedial plan "for providing full and complete educational facilities and services to all eligible Rikers Island inmates." Order, Jan. 7, 2000, ¶ 12. In April 2000 the City defendants submitted their "Education Plan for the Rikers Island Academies" ("Education Plan" or "Plan"). The court only reluctantly approved the Plan, noting that the Plan would "not meet all the needs of incarcerated youth inmates" and that it was "deficient in many respects." Order, June 29, 2000, ¶ 2. The court therefore simultaneously appointed a monitor to observe the Education Plan in action for a period of one year. See id. ¶¶ 3-4. After the one-year period of observation, the monitor was to file a report with the court and make recommendations for improvements to the Plan. See id.

The court-appointed monitor, Dr. Sheri Meisel (the "monitor"), filed her Final Report with the court in December 2001, and in response the parties submitted proposed modifications to the Education Plan. The Final Report and the parties' submissions make clear that the City defendants continue to fail to meet their obligations under state and federal law. Indeed, the City defendants appear to concede that modification to the Education Plan is necessary; they have submitted a four-page "Corrective Action Plan" for the court's approval which, they assert, will address any remaining shortcomings.

On April 12, 2002, the court heard the parties on their proposed modifications to the Education Plan, and the court permitted defendants to file post-argument replies. For the reasons stated in this opinion, the court will order several modifications to the original Education Plan. The court, however, is not inclined to engage in the sort of micromanaging that plaintiffs have proposed.

Finally, the court would be remiss if it failed to note that significant improvements have been made at Rikers Island over the past six years with regard to the educational services provided to classmembers. See Final Rep. at 8-9; Lisante Decl. ¶ 5; Conry Decl. ¶ 6. The court is pleased with the progress that has been made, and the court is confident that the City defendants — with a sensible degree of judicial nudging — can come into full compliance with the law. The Education Plan will be modified accordingly.

II. The Declaratory Judgment

As an initial matter, the court would like to correct a misapprehension that the City defendants have. The City defendants insist that this court's entry of a declaratory judgment against them was only "based on plaintiffs' procedural due process claim[s]," and that the court "made no rulings on plaintiffs' IDEA, Rehabilitation Act, Americans with Disabilities Act, and state law claims." City Defs.' Resp. at 2. The City defendants are mistaken.

First, the court reminds the City defendants that the court granted plaintiffs' motion for declaratory judgment at the close of oral argument, reading out a handwritten order which stated "the motion for a declaratory judgment by plaintiff[s] in [their] favor is granted." Order, Jan. 7, 2000, ¶ 12. There were no restrictions placed on that grant. As plaintiffs' moving papers make clear, their motion for declaratory judgment was premised on the New York Constitution, New York Education Law, New York State Education and Executive Department regulations, the Individuals with Disabilities in Education Act ("IDEA") and implementing regulations, the Rehabilitation Act and implementing regulations, the Americans with Disabilities Act ("ADA") and implementing regulations, 42 U.S.C. § 1983, and the United States Constitution. See Mem.Supp. Pls.' Mot. Declaratory J. & Partial Summ.J. Against City Defs. at 5-25.

Second, the court's subsequent opinion served primarily to reject the City defendants' purported "defenses" (mootness, abstention, and failure to exhaust administrative remedies) and to explain the rationale for the court's denial of the City defendants' cross-motion for summary judgment — a motion upon which the court had yet to rule. See Handberry v. Thompson, 92 F. Supp.2d 244, 247-48 (S.D.N.Y. 2000). Since the court had already granted plaintiffs' motion for declaratory judgment from the bench, the court, in the interest of efficiency, kept the remainder of the opinion rather brief — the entire opinion consumes only five pages of the Federal Supplement 2d. The court did not survey the volumes of evidence presented that supported plaintiffs' claims, nor did the court survey all the relevant law upon which it relied when it had granted the motion two months earlier.

The court also reminds the City defendants that the court found that their original Education Plan did not "meet all of the needs of incarcerated youth inmates on Rikers Island and [was] deficient in many respects as disclosed by plaintiffs' proposed plan." Order, June 29, 2000, ¶ 2. If the court had, in fact, relied only upon plaintiffs' due process claims in evaluating the Plan, the court would not have found the Education Plan to be so inadequate.

Finally, to think that the court would only rule on plaintiffs' constitutional claims and no others strains credulity. The court would not have simply held the remaining claims in abeyance for two years without ruling on them, nor does the court believe that plaintiffs' zealous counsel would have sat by idly if everyone did not know that the court had, in fact, ruled on plaintiffs' statutory and regulatory claims as well as their constitutional ones. The City defendants' contention that their liability was premised only on plaintiffs' procedural due process claims is therefore without merit.

III. The Final Report of the Monitor

The court-appointed monitor, Dr. Sheri Meisel, issued her Final Report on December 5, 2001. In her Report, she details her observations regarding the provision of educational services at Rikers Island. The monitor based her findings upon numerous site visits over the course of the year, interviews with inmates, consultations with BOE and DOC employees and administrators, and an examination of BOE and DOC documents as well as submissions of the parties. Dr. Meisel, a non-lawyer, also makes some legal conclusions and recommendations concerning modification of the Educational Plan.

In their papers filed in response to the Final Report, plaintiffs have urged the court to simply adopt the Final Report's factual findings as findings of the court See Pls.' Resp. at 5-6. At oral argument, however, plaintiffs retreated from that position: "We just wanted to make clear that our suggestion was simply, with respect, that the court adopt the uncontroverted findings . . . [W]e were only asking that the court adopt those findings that are not in dispute." Oral Arg.Tr. 04/12/02 at 71.

The City defendants, in response to the Final Report, have submitted declarations from Steven Conry (DOC Bureau Chief of Management and Planning), Marjorie Weiner (a DOC research scientist), and Timothy Lisante (BOE Deputy Superintendent for Alternative, Adult and Continuing Education, Schools and Programs). These declarations contradict or clarify several findings of the monitor.

The court declines plaintiffs' initial invitation to a wholesale adoption of the Final Report. Rather, the court will adopt only specific factual findings contained in the Report, and only those findings which have been uncontroverted by the City defendants' submissions. The court will disregard the monitor's legal conclusions. Finally, while the court greatly appreciates the monitor's recommendations for improvement, for reasons explained below, it cannot adopt many of them.

The court will not separately summarize or survey the facts contained in the Final Report or those contained in the City defendants' declarations submitted in opposition. This opinion will assume the reader's familiarity with those documents as well as the history of this case. Each issue addressed below will reference relevant portions of the record. Any factual findings of the court will be limited at this time to those that are made herein.

IV. The Nature of Relief

In the sections that follow, the court will survey the areas of alleged noncompliance with federal and state law. Where the court finds violations of federal or state law, the court will order compliance. Much of the relief requested by plaintiffs falls beyond the scope of "least intrusive" and "narrowly drawn." That, however, does not diminish the fact that the City defendants, by their own admission or by failing to dispute the findings of the monitor, remain non-compliant with applicable state and federal law after years of litigation. The court is therefore compelled to order compliance. The order filed herewith, the court believes, is crafted in a way that is narrowly drawn and extends no further than necessary to achieve compliance while keeping in mind public safety and the operation of the criminal justice system.

V. Basic Issues Concerning Access to Educational Services

A. Definition of Entitled Inmate

The parties dispute the time-frame in which an eligible inmate becomes entitled to receive educational services. Citing one set of regulations, plaintiffs argue that an inmate becomes eligible after ten days of incarceration. See N.Y.Comp.Codes R. & Regs. tit. 9, § 7070.1 (stating that all "eligible inmates are entitled to receive educational services"); id. § 7070.2 (defining "eligible inmate" as one "incarcerated in a local correctional facility for 10 or more calendar days" or who is "expected to be incarcerated for a period of 10 or more calendar days").

The City defendants, pointing to another set of regulations, argue that they have an additional ten school days before an inmate becomes entitled to receive services. See N.Y.Comp.Codes R. & Regs. tit. 8, § 118.4 ("Instruction shall commence not later than the 11th school day following the school district's receipt of a request for educational services.").

No evidence has been submitted, however, that the City defendants have failed to provide services within ten days of incarceration. See Final Rep. at 10-11. The court will therefore not address the issue at this time. Should the City defendants cease to provide services within ten days of incarceration, plaintiffs can renew their request for a determination of the definition of "entitled inmate" under New York law.

B. Notice and Requests for Services

In her Final Report the monitor expresses her dissatisfaction with the notification procedures the City defendants have utilized to inform eligible youth of their right to receive educational services. See Final Rep. at 12-16. The monitor notes three ways in which the City defendants attempt to apprize eligible inmates of their entitlement to educational services: (1) A videotaped presentation that covers a wide range of jail regulations and services is shown during facility orientation sessions, including a brief segment on the availability of educational services; (2) correctional officers read or paraphrase a few sentences from the Request for Educational Services form concerning eligibility prior to distributing them; and (3) a notice is posted in housing units, the law library, school hallways, and in program carts. See id. at 12. The monitor was made aware of a version of the form available in Spanish, but she never observed it actually being made available to inmates during orientation. Id. In one instance, the monitor observed that detainees were required to complete the form prior to the video and prior to the oral presentation. Id. In every instance observed by the monitor, the staff member's oral presentation failed to "cover[] all of the information printed in Part IV of the Request." Education Plan ¶ 10. The monitor ultimately concludes that the City defendants' practices and procedures "do not constitute sufficient notification and do not adequately encourage participation in educational services." Final Rep. at 12.

The monitor makes many thoughtful recommendations which, in her professional opinion, would increase levels of participation by incoming detainees. Plaintiffs urge the court to adopt the monitor's recommendations and compel the City defendants to implement the monitor's proposed notification scheme. Plaintiffs cite relevant state regulations in support of their request. See N.Y.Comp.Codes R. & Regs. tit. 9, § 7070.1 ("Eligible youth . . . shall be encouraged to become involved in an educational program."); id. § 7070.4(d) ("Facility staff shall make reasonable efforts to assist all eligible youth, including those who may be non-English speaking, to understand the information provided concerning the educational services program.").

The City defendants respond by arguing that they have complied with the minimum requirements of the applicable state regulations. See N.Y.Comp.Codes R. & Regs. tit. 9, § 7070.4(b). The City defendants also state that they are in the process of modifying the admission orientation to include the presentation of a video produced by BOE, in English and Spanish, about its educational services.

The court cannot say that the City defendants' procedures for notification (i.e., the proposed BOE video presentation coupled with the requirements of paragraph 10 of the Education Plan) fail to "encourage" eligible youth or that they are "unreasonable." While the court has no doubt that plaintiffs' proposed procedures would result in more students participating, maximization of enrollment is not the business of the court — compliance with the law is.

The court finds, however, that the City defendants have failed to consistently and adequately follow the notification procedures mandated by the Education Plan and applicable regulations, both with regard to the oral presentations and in making translations available to non-English speakers. The court will therefore order the City defendants to comply with the terms of the Plan and applicable law.

C. Escorts and Security

The Final Report documents several instances of students arriving to class late or not at all because DOC failed to provide escort officers or sufficient security personnel. See Final Rep. at 16-17. This failure to provide escorts or sufficient security personnel resulted in many instances of inmates not receiving the total number of educational contact hours to which they are entitled by law.

In response, the City defendants have only controverted or (more accurately, clarified) two of the factual observations documented in the Final Report. See Conry Decl. ¶ 12. As for the other instances, the City defendants apparently concede that improvement is needed in this area because "DOC is implementing a 3-point remedial plan to ensure among other things that all compulsory education entitled inmates . . . are brought to the school area, including inmates in mental observation and gay housing units." City Defs.' Resp. at 12; see also id. at 9 ("DOC has instituted a 3-part education and self-monitoring program to rectify problems concerning timely arrival to class and to ensure that no compulsory education entitled inmates miss school unless legally excused from class."). This three-part program is described in the Conry Declaration. See Conry Decl. ¶¶ 11-13. The three-part program, however, is nowhere detailed in the city's proposed Corrective Action Plan.

The court hereby finds that the City defendants have repeatedly failed to provide escorts and sufficient security personnel to ensure that entitled inmates receive the total number of educational contact hours to which they are legally entitled. The court will therefore order the City defendants to assign a sufficient number of correction officers for escort and security in each facility during each school period so that each eligible inmate arrives on time and receives the minimum number of hours of educational services to which the inmate is legally entitled. The court will also direct the City defendants to establish appropriate procedures and training programs to effectuate this order.

D. Minimum Instructional Time for General Educational Services

The parties have spilled considerable ink concerning the minimum instructional time required by New York law. Plaintiffs argue that the City defendants must provide 5.5 hours of general education services daily (Monday through Friday) for compulsory-age inmates (i.e., 16 and 17-year-olds) and 3 hours per day for 18 to 21-year-olds. City defendants insist that they need provide only 3 hours per day for all eligible inmates.

Section VII of DOC Directive 3503R indicates that DOC's policy is that every reasonable effort should be made to provide space sufficient for BOE to provide 5.5 hours of instruction per day to compulsory-age inmates and 3 hours per day to other eligible inmates. The City defendants argue, however, that they are not required to provide 5.5 hours of instruction per day.

In support of their argument, the City defendants point to section 3202 of New York Education Law which provides that

A person under twenty-one years of age who has not received a high school diploma and who is incarcerated in a correctional facility maintained by a county or by the city of New York or in a youth shelter is eligible for educational services pursuant to this subdivision and in accordance with the regulations of the commissioner.

N.Y.Educ.L. § 3202(7)(a). Part 118 of the state education commissioner's implementing regulations, entitled "Instructional Programs for Students Incarcerated in Correctional Facilities Maintained by Counties or the City of New York," states that "[t]he amount of instructional time provided to each student shall total not less than three hours per school day." N.Y.Comp.Codes R. & Regs. tit. 8, § 118.4(b).

Plaintiffs, in support of their argument for a minimum of 5.5 hours per day for 16 and 17-year-olds, point to section 3205 of New York Education Law, which provides that "each minor from six to sixteen years of age shall attend upon full time instruction," and that "the board of education shall have power to require minors from sixteen to seventeen years of age who are not employed to attend upon full time day instruction until the last day of session in the school year in which the student becomes seventeen years of age." N.Y.Educ.L. § 3205(1)(a), (3); see also Bylaws of the Bd. of Educ. of the City of New York § 4.1 (June 20, 2001) ("Each minor child residing in New York City from six to seventeen years of age shall attend full time instruction, except upon completion of a four year high school course of study."). In support of their argument that "full time" means a minimum of 5.5 hours per day, plaintiffs point to Part 175 of the commissioner's regulations, entitled "State Aid," which provides that

The daily sessions for pupils in grades seven through 12 shall be a minimum of five and one-half hours including time spent by students in actual instructional or supervised study activities, exclusive of time allowed for lunch, and including hourly units of time spent by all teachers and other instructional staff within a grade level or school building attending upon staff development activities relating to implementation of new high learning standards and assessments as authorized by section 3604(8) of the Education Law.

N.Y.Comp.Codes R. & Regs. tit. 8, § 175.5(a)(3). Plaintiffs concede that eligible inmates aged 18 to 21 years of age are only entitled to 3 hours of instruction per day.

Plaintiffs also seem to argue that the City defendants have somehow waived their right to argue that they are only legally required to provide 3 hours of instruction per day to compulsory-age inmates:

[The City defendants' argument] is an attempt to whitewash the fact that the City has long insisted that it does provide 5.5 hours of instruction to adolescents, and the monitors' [sic] reports demonstrate that, even this far into remedial litigation, it still has failed to do so. The City should not be permitted to threaten to provide fewer services in response to its failure to meet its own standards.

Pls.' Reply at 7 (original emphasis).

The court is not persuaded by plaintiffs' arguments. The statute cited by plaintiffs speaks only in general terms while the statute cited by the City defendants specifically refers to incarcerated student programs. The regulation cited by plaintiffs indicates in its section heading and part heading that it concerns the "[l]ength of school day . . . for State aid purposes," and the regulation was implemented pursuant to a different statute than the one upon which plaintiffs' rely. N.Y.Comp. Codes R. & Regs. tit. 8, § 175.5 (emphasis added). Moreover, that same section of the regulations contemplates a fewer number of hours for alternative education programs.*fn2 See id. § 175.5(e). In contrast, the regulation cited by the City defendants, in its section heading, part heading, and substance, specifically indicates that it applies to instructional programs for incarcerated persons. See id. § 118.4. Moreover, its history indicates that it was enacted pursuant to section 3202 of New York Education Law. See id.

While the court is certainly sympathetic to plaintiffs' desire to maximize instructional time — a mere three hours of instruction per day strikes the court as rather anemic in the grand scheme of things — the court is of the opinion that New York law requires only three hours per day of instruction. While that amount is small, it is not so small as to be de minimis or nonexistent, and thus it is not in and of itself constitutionally infirm. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 37, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Campaign for Fiscal Equity, Inc. v. State, 744 N.Y.S.2d 130 (N.Y.App.Div. 2002) (describing minimal educational requirements under state constitution).

As for the City defendants' alleged misrepresentations concerning the amount of services they have provided, the fact that the City defendants may have said they intended to provided five and one-half hours of instruction per day is irrelevant to the determination of what they are legally obligated to provide. Moreover, the City defendants' position has always been that they were only legally required to provide three hours of instruction per day. ...


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