Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
HANDBERRY v. THOMPSON
August 28, 2002
ZAKUNDA-ZE HANDBERRY, ET AL., PLAINTIFFS,
WILLIAM C. THOMPSON, JR., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Motley, District Judge.
OPINION ON THE PARTIES' CROSS-APPLICATIONS TO AMEND THE
Reformation, like education, is a journey, not a
Mary Belle Harris, I Knew Them in Prison
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
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.
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
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
B. Notice and Requests for Services
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
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.
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.
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
[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
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. ...