Abstract
This article describes the Brazilian juvenile justice system and the educational rights of incarcerated adolescents with learning disabilities, to discuss how and why they are “invisible” and deprived of adequate treatment for their specific needs. The main reasons reside (a) in the complex national legal structure of the juvenile justice system; (b) in the lack of specific legislation concerning the rights of students with learning disabilities in general and of incarcerated adolescents in particular, both groups not eligible for special education services; and (c) the general difficulty to diagnose learning disabilities, especially in correctional facilities. Paradoxically, despite the complexity of the juvenile justice system legal organization, nationally, there is no specific law on education for incarcerated adolescents; moreover, the lack of data collection on the prevalence of learning disabilities does not allow the federated states to create suitable laws and programs.
Brazil is a federal country with a decentralized and complex organization with respect to the juvenile justice system (JJS) as well as to education policies and regulation. The largest country in Latin America, it has a very large population—approximately 210 million inhabitants in 2019 (Instituto Brasileiro de Geografia e Estatística [IBGE], 2020b) and strong economic differences among its 26 states and regions—which is reflected in the disparities and inequalities of the correctional confinement programs and educational systems (Neri, 2018; Osorio, 2019). This is a result of a combination of poverty and low education standards in general, among other factors such as the low economic activity and the increase in government expenditures at all levels of the federation (Neri, 2018). Although the processes of social reform in Brazil—launched by the Federal Constitution of 1988 (IBGE, 2020b)—have shown significant progress when compared with previous periods and especially in protecting children and adolescents—roughly 25% of the population (IBGE, 2018a), the implementation of the Constitution is still incomplete and there is ample scope for improvement in equity and education.
In the past 30 years, the universalization of the first 3 years of basic education has been practically achieved (Instituto Nacional de Pesquisas Educacionais Anísio Teixeira [INEP], 2018; Neri, 2018). On the contrary, according to recent official data, only 25% of the children aged less than 4 years attend day care; 20% of the children aged between 4 and 6 years, and 60% of the young people aged 14 to 17 years do not attend school (IBGE, 2018c). Another problem is the generally poor quality of public education, with less than half of the children having acquired adequate reading skills at the end of the third year of basic education (INEP, 2018). At the end of 11 years of basic education, only 9% of the students have acquired the expected knowledge in mathematics and there is no guarantee that they have learned the minimum skills required in their respective school grades (Programme for International Student Assessment, 2018). These circumstances disproportionately punish the African Brazilian population and the communities in the poorest rural areas (IBGE, 2018b).
Concerning incarcerated adolescents, 60% of whom are Black or Brown (Ministério da Justiça, 2018), a national research conducted by the National Council of Justice (Conselho Nacional de Justiça [CNJ], 2012) in 2012 found that 57% did not attend school before incarceration, 86% had not completed elementary school, and 8% were illiterate. In this aspect, the inequality between the different Brazilian regions becomes evident in the National Council of Justice’s research. In the Northeast, 20% of the incarcerated adolescents do not know how to read, while in the South and the Midwest this proportion was only 1%. Similar data were found in a survey restricted to the State of São Paulo (i.e., the wealthiest state in the country [IBGE, 2020a]), where 30% of the juvenile incarceration facilities are located (Conselho Nacional do Ministério Público, 2019), only 32% of incarcerated adolescents reported attending school before admission, while 30% were not even enrolled and another 37% were enrolled, however, did not attend classes (Instituto sou da Paz, 2018, p. 22).
Among repeat offenders, the picture is even more critical. About 60% dropped out of school by the age of 14, half of the inmates said they were never enrolled, and 30% did not return to school after their previous incarceration (Instituto sou da Paz, 2018, p. 23). Illiteracy, failing in school, truancy, and dropping out are recognized factors in making students more vulnerable to criminal activity (Bazon et al., 2013; Rolim, 2016). In the United States, similar conclusions were achieved: “Truancy, along with associated school failure, is also viewed as a powerful predictor of delinquency.” (Zhang, 2010, p. 230).
Considering all the previously mentioned circumstances, this article describes the Brazilian JJS and the educational rights of incarcerated adolescents with learning disabilities (LD). The conclusion is that they are “invisible” and deprived of adequate treatment for their specific needs due to three main reasons: (a) the complex national legal structure of the JJS; (b) the lack of specific legislation concerning the rights of students with LD in general and of incarcerated adolescents in particular, both groups not eligible for special education services; and (c) the general difficulty to diagnose LD, especially in correctional facilities. To sustain these findings, this article starts with a brief description of the JJS’s legal grounds and the education rights of incarcerated adolescents, followed by a discussion about emerging issues, paradoxes, and possibilities.
Three basic premises can be extracted from the report of the United Nations Special Rapporteur on the Right to Education (Muñoz, 2009): (a) people with learning disabilities and difficulties are made even more vulnerable by penal systems that invariably fail to recognize, understand, or support their specific needs; (b) research into learning disabilities and difficulties in prisons is limited to a handful of states, being often inconclusive, contradictory, and rarely touching upon education; and (c) many prison systems are not aware that they hold people with learning disabilities and learning difficulties. As pointed out by Muñoz (2009), “Consequently, no special provision is made for them, despite their complex and multifaceted needs which require inter-disciplinary cooperation, both within and outside prisons, and a long-term commitment” (Muñoz, 2009, p. 123).
Since in Brazil there is no legal definition for LD, this article adopts the definition from the Individuals with Disabilities Education Act (IDEA, 2004) from the United States: a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.
Legal Framework
State and federal constitutional and statutory provisions provide the framework that governs how the Brazilian JJS is structured. The primary sources affecting the JJS (which comprises the 26 states’ correctional systems and institutions) are as follows: The Federal Constitution of 1988; The Child and Adolescent Statute of 1990 (Law No. 8,069)—ECA; The National System of Correctional Socio-Education of 2012 (Law No. 12,594)—SINASE; and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty of 1990 (A/RES/45/113) (United Nations, 1990).
Among other federal statutes, the National Education Act of 1996 [BR] (Law No. 9,396)—NEA and the Juvenile Act of 2013[BR] (Law No. 12,852), both determining overall guidelines at the national level, define the set of provisions relating to the educational rights of incarcerated adolescents. The legal control of public basic education resides with the states while still adhering to the NEA of 1996. States also retain the primary legal responsibility for juvenile correctional institutions and public education services for incarcerated adolescents (Article 94, X of the NEA; Articles 4 and 15 of the SINASE of 2012) as long as laws and actions are consistent with constitutional safeguards (such as full protection of the child and adolescent) and with education rights. In relation to children and adolescents, the right to education has absolute priority (Article 227 of the Federal Constitution of 1988 [BR]); as such, access to free and compulsory education is seen as a subjective right (Federal Constitution of 1988, Article 208, §1), the universalization of which and the responsibility of the public authorities ensured in case of not providing or offering it irregularly (Federal Constitution of 1988, Article 208, §2). The universalization of the access to basic education, based on the fundamental principles of non-discrimination and equality of educational opportunities, also guaranteed by Article 206, I of the Federal Constitution, is evidently extended to incarcerated students.
The ECA of 1990 plays an essential role in defining the responsibilities of family members and guardians, schools, and government authorities, based on the full protection of the child and adolescent doctrine (Federal Constitution of 1988, Article 227). The ECA of 1990 focuses on protecting young people from birth to age 18 from all forms of negligence, discrimination, exploitation, abuse, cruelty, and oppression (Articles 2 and 4). Article 98 provides a broad array of protective measures; among the most significant is the medical, psychological, and psychiatric care, as well as government assistance programs for families, children, and adolescents (Article 101).
Incarcerated adolescents who had committed infractional acts (i.e., crimes and misdemeanors as defined by the law—ECA of 1990, Article 103) are submitted to a special legal regime with a predominantly pedagogical nature, named “socio-educational system” (i.e., as stated by the National Council for the Rights of Children and Adolescents, Resolution n. 119/2006), which comprises “social-educational measures” set out in Article 112 of the ECA of 1990. The SINASE of 2012 establishes rules related to the misdemeanor process and for the execution of socio-educational measures, which can be carried out in liberty (i.e., assisted freedom or community service which are under the municipalities’ responsibility; Article 5, III) or in confinement (i.e., semi freedom and internment, which are the states’ responsibility; Article 4, II).
Meeting the socio-educational measures (e.g., such as the duty to repair the damages caused, perform community service) will depend on the requirements established in the individual attendance plan (PIA), an instrument for elaborating, registering, and managing the activities to be carried out with the adolescent (SINASE of 2012, Article 52). The PIA should be defined individually by the technicians of the correctional entity in cooperation with the adolescent and his or her family. Thus, objective socio-educational actions are outlined ideally to ensure a beneficial adaptive and productive life plan. Parental participation is required during the entire socio-educational program (SINASE of 2012, Article 53). It is worth noting, however, the existence of practical restrictions to the full personalization of the PIA and to the involvement of family members in this process. Limitations such as the need for common goals and rules among all the inmates, as well as the absence of some of the families, interfere negatively in this task (Instituto Sou da Paz, 2018, p. 36).
Many states’ correctional institutions do not provide education in the facilities, so a period of 1 year was established for all students to be included in a regular public school (SINASE of 2012, Article 82). The State of São Paulo provides public education to incarcerated adolescents, who are only assessed in grammar and mathematics (São Paulo’s State Education Department, Resolution SE-SJDC n. 2/2017). There is no mandate for further evaluation to determine specific learning disabilities or to identify any tutoring or supplemental individualized educational needs.
Education programs in confinement institutions are integrated with the public schooling system to allow for continuation of education upon release (Ministério da Educação [MEC] Ministry of Education, 2001); after leaving the socio-educational system, adolescents are obliged to continue school attendance (Article 24 of the CNE Resolution 3/2016). Despite the legal guarantees, young people have many difficulties to continue studying after they return in their home communities. A survey, conducted by the Instituto Sou da Paz (2018) with adolescents from the São Paulo State JJS, found that 30% of the youth did not return to school after incarceration. Furthermore, many of these adolescents experienced discrimination on the part of other students as well as teachers when they returned to their community. The study highlighted that 48% of the young people interviewed stated that they would like to receive support to return to school after the end of the social-education measure, to assist them in the process of preventing a future infraction cycle.
Learning Disabilities Among Incarcerated Adolescents
In 2015, the National Education Council (Conselho Nacional de Educação [CNE], 2015) estimated that nationwide 1.7% of incarcerated adolescents had a learning disability (CNE Opinion 008/15, p. 22). Notwithstanding, there is neither accurate diagnosis nor statistical data about incarcerated students with LD (i.e., data are not imposed by the law and, therefore, not collected). Neither are there specific regulations for this group, whether at federal or state level. The problem is broader, as there is no regulation for students with LD in general, let alone a legal definition for LD. In addition, LD is not included by NEA of 1996 among the disabilities or disorders attended by special education. The specialized educational service is for students with disabilities, global developmental disorders, and high intelligence quotient (IQ) abilities (NEA of 1996, Article 4, III).
Disabilities, as defined by the United Nations Convention on the Rights of Persons with Disabilities—UNCRPD (United Nations, 2006), ratified by Brazil (Decree No. 6,949 of 25 August 2009), and the Persons with Disabilities Act of 2015 [BR] (Law No. 13,146)—APD, are those that cause long-term physical, mental, intellectual, or sensory impairments and can obstruct their full and effective participation of a person in society on equal terms with others. Development disorders include alterations in neuro-psychomotor development, impaired social relationships, communication or motor stereotypes, including students with autism, Asperger syndrome, Rett syndrome, childhood disintegrative disorder (i.e., psychosis), and invasive disorders with no other specification. Students with a high IQ are those with high potential in intellectual, academic, leadership, psychomotricity, or arts fields (CNE Resolution no. 04/2009, Article 4, II and III). These definitions are restrictive and, as such, do not include students with functional disorders, which would be the case of dyslexia, dysorthography, dysgraphia, dyscalculia, and attention and hyperactivity disorder, among others.
For all these reasons, adolescents with LD in general are “invisible” and not adequately treated mainly in the public school, despite their educational rights (Ranieri, 2010). These rights are governed primarily by three federal statues: (a) the UNCRPD, (b) the APD of 2015, and (c) the ECA of 1990, which impose many legal obligations to the states. First, they must assure the rights of disabled children and adolescents even before other groups of disabled people; priority in rights signifies immediate and differential treatment. Second, full protection, as stated in ECA of 1990, is a corollary of the constitutional principle of protection from all forms of negligence and discrimination. Third, concerning special education, the requirements of equality, priority, and full protection stated by the APD of 2012 lead to the interpretation that the Federal Government is obliged to guarantee technical and financial support to all states’ education systems. Fourth, all the school procedures, including individual assessment in correctional institutions, must be coherent with the idea of inclusive education. Fifth, nothing is required of the individuals to be eligible for special education apart from their special needs.
Another noteworthy educational right is the preferential integration of the students with disabilities in regular classes of basic education (NEA of 1996, Article 58; APD of 2015, Article 27). This implies that the school and the correctional institution must adapt themselves to the specific needs of each student with a disability regardless the number of students. Students with special needs are also entitled to regression recoupment and to alternate assessments aligned to alternate achievement standards (NEA of 1996, Article 24, V). Unfortunately, none of that occurs in the individual state correctional institutions.
Empirical and academic research (CNJ, 2012; CNE, 2015; Julião, 2009) found that, among the main problems regarding education for incarcerated adolescents, the following stands out: (a) a lack of national policy; (b) a lack of national planning as a consequence of non-defined education incumbencies among federal and state secretariats and departments; (c) a precariousness of educational actions due to lack of resources and infrastructure; (d) an absence of curricular and methodological proposals; (e) a lack of information about the psychosocial profile of inmates, since the PIA is confidential and restricted to each adolescent’s individual file; and (f) a lack of trained professionals and teachers. In addition, the subordination of the education services to the disciplinary regime of the incarceration units makes the presence of the students in the classroom impossible, in various situations, since the correctional entities often use the restriction of classes as a disciplinary method. In this scenario, one would not expect that the education needs of adolescents in correctional institutions are met in the light of the UNCRPD, of the APD OF 2015 and of the ECA OF 1990.
As stated by Article 112 (§3o of the ECA of 1990), only incarcerated adolescents with mental illness or long-term disabilities are entitled to individual and specialized treatment with respect to their conditions. The terms “treatment” and “mental illness” refer to mental health care and not to the educational needs. Likewise, SINASE only guarantees treatment to special mental health problems, including those related to the use of alcohol and other psychoactive substances, as well as attention given to adolescents with long-term disabilities (Article 60, III). In short, the legal provisions of ECA of 1990s and the SINASE of 2012s are focused only on adolescents with mental health problems.
Even so, in the area of education, the CNE recommends that specialized educational services for students with disabilities and specific pedagogical monitoring must be provided to adolescents inside the correctional system (CNE Resolution n. 3/2016). The National Council for the Rights of Children and Adolescents (Conselho Nacional da Criança e do Adolescente) also recommends specialized education services for incarcerated adolescents with disabilities (Resolution No. 119 of 2006). However, neither resolution specifies how these services should be provided; and regardless, they are not binding. As already noted, regulation education—including special education and education in correctional institutions—depends on legislation of individual states that, in general, tends to be restricted to the minimum required by the federal law (MEC, 2008).
Emerging Issues and Recommendations
How and to what extent can the legal system guarantee and promote the right to education for incarcerated adolescents with LD? Some recommendations are proposed to teachers, correctional institution technicians, and authorities:
In state educational systems, appropriate education for persons with LD in general, and among incarcerate adolescents in particular, should be guaranteed in specific legislative instruments in compliance with international law standards.
The educational services must be structured in an intersectional and cooperative way, associated with social assistance public policies, health, sports, culture, leisure, work, and justice, in compliance with Article 227 of the Federal Constitution of 1988. To this end, collecting and systematizing the data in the PIA confidential individual files is a critical and urgent measure.
The state education systems, together with correctional institutions, should arrange comprehensive education programs aimed at the development of the full potential of each incarcerated adolescent, with attention to those with disabilities, LD included.
It is necessary that each state education system defines the implementation and follow-up of the schooling of incarcerated adolescents and those who have left the system.
States should, in addition, (a) reinforce the participation of education professionals in elaborating and following-up the PIA; (b) assure appropriate educational assessment of all incarcerated adolescents from entry in correctional institutions to release, taking into account possible LD; and (c) guarantee trained teachers and ongoing professional development, a safe working environment, adequate working conditions, and compensatory remuneration.
However, there are many constraints that call into question the effectiveness of these measures: (a) the lack of political commitment, (b) the non-continuity of public policies aimed at incarcerated adolescents, (c) the shortage of budgetary resources, and (d) specialized personnel. Incomplete data on the National Basic Education School Census for students in incarceration units, as well as for students who meet socio-educational measures in freedom (CNE, 2009; CNJ 2012), do not allow the states to create suitable laws and programs as a consequence.
Conclusion
The complex national legal structure of the JJS, the absence of specific legislation concerning the rights of incarcerated adolescents with LD, their non-eligibility for special education, and the general difficulty to diagnose LD are some of the constraints defying the effectiveness of the education rights of this particular group. Ranging from inadequate infrastructure to unreliable statistical data, it is also observed that funding as a constraint makes it difficult for special education programs to meet the needs of incarcerated students in general. These problems are not exclusive to Brazil, as mentioned by the United Nations Rapporteur to the Right to Education, and do not diminish the responsibilities of authorities and society.
If the history of Brazilian education has been characterized by exclusion, this becomes even more evident in view of the inequality that affects incarcerated adolescents. This historic heritage affects the impact of education as an instrument of social mobility. Although the processes of social reform in Brazil—launched by the Federal Constitution of 1988—are showing significant progress when compared with previous periods, especially in the educational area, the educational reforms are still incomplete and there is ample scope for improvement in efficiency and equity.
Quality education assurance for all is the central question to focus upon. A lot remains to be done: (a) promotion of learning, (b) the war against functional illiteracy, (c) professional valorization and investment in teacher training, (d) data assessment and monitoring in order to correct distortions, (e) the issuing of a federal statute that expands the clientele entitle to special education, and (f) overcoming restrictive interpretations of the law. Objective measures, such as those mentioned in these recommendations, can ensure the minimum conditions for providing an adequate education for students with disabilities in correctional institutions.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.