Depriving Washington State's Incarcerated Youth of an Education: the Debilitating Effects of Tunstall v. Bergeson

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 4SPRING 2003

NOTE

Depriving Washington State's Incarcerated Youth of an Education: The Debilitating Effects of Tunstall v. Bergeson

Jamie Polito Johnston(fn*)

"In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."(fn1)

I. Introduction

Although the United States Constitution does not guarantee a fundamental right to education, all U.S. states recognize a right to primary and secondary education in state constitutions or confer that right by statute.(fn2) As the United States Supreme Court has observed, "education is perhaps the most important function of state and local governments."(fn3) Both compulsory school attendance laws and the great expenditures for education demonstrate the recognition of the importance of education to our democratic society.(fn4) "Today, [education] is a principal instrument in awakening [a] child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."(fn5) The failure of some correctional facilities to provide juvenile(fn6) inmates an adequate education, including special education, deprives juveniles of a critical resource that can assist them in becoming productive members of society upon release.(fn7)

Approximately 125,000 young people are now in custody in public and private correctional facilities in the United States.(fn8) "The majority of youth enter correctional facilities with a broad range of intense educational, mental health, medical, and social needs. "(fn9) A recent study has estimated that 35.6% of juvenile offenders have learning disabilities and an additional 12.6% have mental retardation.(fn10) Another twenty-two percent of those incarcerated have significant mental health problems.(fn11) "Large numbers of incarcerated juveniles are marginally literate or illiterate and have experienced school failure and retention."(fn12) These youths are also disproportionately male, African-American, poor, and have significant learning and/or emotional problems that entitle them to special education and related services.(fn13) While illiteracy and poor academic performance are not direct causes of delinquency, studies demonstrate a strong link between marginal literacy skills and the likelihood of becoming involved in the juvenile justice system.(fn14)

The negative consequences of marginal literacy extend well beyond the greatly heightened risk for incarceration among adolescents.(fn15) The rate of poverty among those in the labor force without a high school diploma is approximately three times that of high school graduates. Eighteen to twenty-three year olds least proficient in the basic skills of reading and mathematics are more likely to be unemployed, living in poverty, and not enrolled in any type of schooling.(fn16)

Educating juveniles in correctional institutions serves as an effective method in preventing crime and reducing the rate of recidivism. According to the Washington Department of Corrections ("DOC"), in 1998, eighty-six percent of the 1,027 youth incarcerated in Washington's adult prisons served sentences often years or less.(fn17) National studies have estimated a recidivism rate among prisoners as high as seventy percent.(fn18) A recent U.S. Department of Education study, however, has shown that inmates who receive schooling through vocational training or classes at the high school or college level are far less likely to return to prison within three years of their release.(fn19) Inmates who receive two years of post-high school education while in prison have a re-arrest rate of ten percent compared to the national rate of sixty percent.(fn20) Thus, educating juvenile inmates during incarceration can help them to redirect their lives and effectively reduce juvenile delinquency and recidivism.

Despite compelling evidence that educating incarcerated youths reduces recidivism while increasing post-release success in employment and other life endeavors, the lack of attention given to educational rights of delinquent youth is part of a disturbing national trend in providing incarcerated youth with minimal or no educational services. In many states around the country, the education offered to delinquent and incarcerated youths is seriously deficient. Applicable correctional standards generally fail to protect the rights of children in detention to receive an adequate education. In Pennsylvania, an expelled student under the age of seventeen has a right to only minimal education (about five hours per week, versus the usual 27.5 hours), and an expelled student seventeen or older is not entitled to education at all.(fn21) In Maryland, the only standards with which all jails and detention facilities in the state are required to comply make no provision for inmate education.(fn22) Sadly, the State of Washington has been, and continues to be, a part of this trend in light of the recent Washington Supreme Court decision, Tunstall v. Bergeson.(fn23)

The state high court in Tunstall effectively ruled incarcerated individuals over age eighteen do not have a statutory or constitutionally protected right to basic education.(fn24) Furthermore, the Court held the State was not required to provide special education to inmates between eighteen and twenty-two years of age.(fn25) The Court's failure to provide education to all school-aged youth in Washington is not only costly to our society, but also violates the most important right guaranteed by the Washington Constitution-the right to an education provided through a uniform public school system under Article IX.(fn26)

Tunstall v. Bergeson was wrongly decided because the Basic Education Act and Article IX both require state-funded education for incarcerated youths up to age twenty-one, and the Education Programs for Juvenile Inmates Act is unconstitutional as it violates Equal Protection. This Note discusses the impact of Tunstall v. Bergeson, and the educational rights of incarcerated youth, specifically those between the ages of eighteen and twenty-one, who are denied their statutory and constitutional right to basic and special education while confined in Washington State's correctional facilities. The Note reviews the relevant state and federal laws and constitutional provisions that entitie incarcerated juveniles to educational services they are wrongfully denied as a result of the Tunstall decision.

The analysis begins in Section II with a general overview and summary of Tunstall v. Bergeson. Section III presents a brief legislative background of the statute at issue in Tunstall, Education Programs for Juvenile Inmates, RCW section 28A.193. Section IV discusses Tunstall's misinterpretation of these statutory provisions, demonstrating the Education Programs for Juvenile Inmates' disregard of the paramount duty to provide education to youth under twenty-one pursuant to the Basic Education Act and violation of the Washington Constitution, as discussed in Section V. Next, Section VI argues that because the right to education is a fundamental right under state law, the Education Programs for Juvenile Inmates statute violates the Equal Protection Clause of the Washington Constitution. Finally, Section VII examines the juvenile inmates' right to special education, both under the state Special Education Act, and the federal Individuals with Disabilities Education Act.

II. Summary of Tunstall v. Bergeson

In 1998, the Washington State Legislature passed the Engrossed Substitute Senate Bill ("ESSB") 6600, providing for the education of inmates under the age of eighteen who are incarcerated in adult prisons.(fn27) That year, a class of inmates under age twenty-one and inmates with disabilities brought suit against the State Superintendent of Public Instruction, the Secretary of the Department of Corrections ("DOC"), and several school districts in the state, challenging ESSB 6600, now codified as RCW chapter 28A.193.(fn28) RCW chapter 28A.193 provides for the education of juveniles incarcerated in adult prisons; however, it limits the availability of basic education to inmates under the age of eighteen and fails to provide for special educational opportunities.(fn29) The inmates claimed the newly enacted statute violated Article IX of the Washington Constitution, the Basic Education Act, the federal Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and Due Process and Equal Protection under the Washington Constitution and the United States Constitution.(fn30)

The trial court granted summary judgment for the inmates on their state constitutional claims, ruling that the State had a paramount duty under Article IX of the Washington Constitution and the Basic Education Act to provide basic education to incarcerated juveniles under twenty-one, and to provide special education to disabled, incarcerated youth under twenty-two.(fn31) The trial court also ruled RCW chapter 28A.193 unconstitutional for not providing for special education for disabled juvenile inmates and for impermissibly limiting basic education to incarcerated youths under the age of eighteen.(fn32) The trial court dismissed all of the plaintiffs' federal claims.(fn33)

On appeal, the State, as appellants and cross-respondents, challenged the trial...