Morales v. Turman

MEMORANDUM OPINION AND ORDER

JUSTICE, District Judge.

I. INTRODUCTION

If any parents shall wilfullie and unreasonably deny any childe timely or convenient marriage, or shall exercise any unnatural severitie towards them, Such children shall have free libertie to Complain to Authoritie for redresse.

Massachusetts Body of Liberties, 1641, No. 83: “Liberties of Children.” (Italics added.)

While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guarantees applicable to adults. . There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.

Kent v. United States, 383 U.S. 541, 555-556 , 86 S.Ct. 1045, 1054 , 16 L.Ed.2d 84 (1966). (Italics added.)

This civil action concerns both the adjudicatory and post-adjudicatory stages of the juvenile justice system in the State of Texas. The plaintiffs are minor children who represent a class consisting of all juveniles who are presently, have been in the past, or may be in the future adjudicated delinquent

1

and involuntarily committed to the custody of the Texas Youth Council (hereinafter called the TYC).

2

Defendants are Dr. James A. Turman, Executive Director of the TYC, members of the TYC (appointed by the Governor of Texas with the consent of the Senate), and various employees of the TYC responsible for supervision of the juveniles committed to TYC custody.

3

A.

Description of TYC System

The TYC has six training schools, three for girls and three for boys. The boys’ schools are: Giddings State Home and School for Boys (maximum capacity 480 boys); Gatesville State School for Boys (a complex of seven schools with a total maximum capacity of 1,560 boys); and the Mountain View State School for Boys (maximum capacity of 480).

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The girls’ schools are: Brownwood State Home and School for Girls (maximum capacity 240 girls); the Crockett State School for Girls (maximum capacity 209 girls); and the Gainesville State School for Girls (maximum capacity 390 girls).

4

The seven subschools of Gatesville are: Valley, Hackberry, Riverside, Terrace, Hilltop, Live Oak, and Sycamore. At the time the trial of this civil action began, the population of Gatesville School was 1,149; Mountain View, 361; Brownwood, 109; Crockett, 126; and Gainesville, 220. In fiscal year 1972, sixty percent of the males admitted to TYC institutions were committed for crimes of stealing, nine per cent for crimes of violence, nineteen per cent for disobedience and immoral conduct, and sixteen per cent for other reasons. Of the females admitted to TYC institutions, fifteen per cent were committed for crimes of stealing, four per cent for crimes of violence, sixty-eight per cent for disobedience and immoral conduct, and thirteen per cent for other reasons.

As of May, 1973, the ethnic composition of the TYC Central Office was eighty-four and three-tenths per cent Anglo, eight and six-tenths per cent Mexican American, and seven and one-tenth per cent Black. All but one of the Blacks and one of the Mexican Americans are parole officers.

Seven of the 254 Texas counties accounted for fifty per cent of the TYC admissions in fiscal 1972. In the same year, eighty per cent of the admissions to TYC were boys, and twenty per cent were girls. The ethnic backgrounds of the youths incarcerated in the TYC are as follows: Anglo, forty-three and two-tenths per cent; Mexican American, twenty-four and three-tenths per cent; and Black, thirty-two and four-tenths per cent. The average length of stay of juveniles in various TYC institutions is as follows:

Median Longest

Crockett 12.3 mos. 38 mos.

Gainesville 12.4 mos. 29 mos.

Brownwood 12.0 mos. 21 mos.

Gatesville 10.0 mos. 26 mos.

Mountain View 18.8 mos. 30 mos.

B.

Outline of the Opinion

The genesis of this civil action was hardly dramatic. More than three years ago, this court granted a preliminary injunction sought by two young attorneys who were attempting to confer privately with their clients and communicate with them by uncensored mail. The extensive litigation outlined in this memorandum opinion has been the outgrowth. The first portion of the opinion relates to challenges to the jurisdiction of this court, traces the early history of the case, and discusses the juvenile’s right to counsel and access to the courts. The second section / concerns the widespread abuse of procedural due process for juveniles in the adjudicatory stage, and includes an agreed judgment entered in an attempt to correct this abuse. The final part of the opinion concerns plaintiffs’ allegations regarding cruel and unusual punishment and the so-called right to treatment. A preliminary injunction in regard to some of the matters discussed in the final portion of this opinion was entered on August 31, 1973.

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II. ELEVENTH AMENDMENT

The defendants’ contention that this civil action is b'arred by the eleventh amendment to the Constitution borders on the frivolous; it is discussed here only because the defendants advance it with apparent seriousness. They argue, in essence, that execution of the relief

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requested by the plaintiffs, the United States, and the

amici

will necessitate the expenditure of state funds and thus constitute, in their words, a “raid on the treasury” of the state. Initially, it is noted that there is little or no evidence in the record to support the contention that any relief ordered by this court will be more costly than the maintenance of present conditions in the Texas Youth Council institutions. Indeed, there is some evidence that implementation of some of the kinds of requested relief — in particular the placing of more children in community facilities and fewer in residential institutions — would save the state a considerable sum. Yet it is not necessary for the court to make a finding with respect to the relative costs of various plans and compute whether the state may be put to an additional expense in complying with the court’s order. The Supreme Court has spoken on the subject very recently in Edelman v. Jordan, (1974) 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 :

The injunction issued in

Ex parte Young

was not totally without effect on the State’s revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in

Ex parte Young.

In Graham v. Richardson, 403 U.S. 365 , 91 S.Ct. 1848 , 29 L.Ed. 2d 534 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young. . . .

Id.

at 665, 94 S.Ct. at 1357 .

Consequently, even if compliance with the court’s order requires the expenditure of state funds that might not ordinarily be allocated for Texas Youth Council purposes, the eleventh amendment constitutes no 'obstacle. Were it otherwise, “a great number of federal district court judgments are void, and the Supreme Court has affirmed many of these void judgments.” Gaither v. Sterrett, 346 F.Supp. 1095, 1099 (N.E.Ind.), aff’d 409 U.S. 809 , 93 S.Ct. 68 , 34 L.Ed.2d 70 (1972).

III. NECESSITY FOR A THREE-JUDGE COURT

During the week before the trial of this case, the defendants made their first motion for the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 (1970). The motion was denied by an order of July 20, 1973. In the same order, certain issues were severed

(i.e.,

challenges to compulsory religious services and involuntary work practices) from the remaining issues in the case, and no relief is granted in respect to these issues. In their post-trial submissions, however, the defendants have renewed their arguments to the effect that a single judge cannot lawfully take any action in this case. In light of their renewed contentions and recent pronouncements by the appellate courts, the court here takes the opportunity to consider the issue anew.

The Three-Judge Court Act is, as the Fifth Circuit has recently noted,

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phrased in “deceptively simple language.” Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973):

An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

28 U.S.C. § 2281 (1970). That two of the essential elements designated by the statute — the prayer for an injunction and presence of a state officer as party defendant — are present in this case is not in controversy. The plaintiffs, the United States, and the other

amici

all contend, however, that the two other requirements are absent from this case: they argue (1) that they do not challenge a state enactment of state-wide application, and (2) that they do not seek a ruling that any statute or order is unconstitutional.

The only state

statutes

that could conceivably be involved in this litigation (excluding those statutes consideration of which was severed by the court’s order prior to trial) are the general “enabling statutes” for the Texas Youth Council. These statutes, however, are only very general grants of authority to the TYC. Moreover, the plaintiffs certainly have no quarrel with the statutes, since it is upon the language found therein that they rely in their argument that juveniles have a statutory “right to treatment.”

See

Tex.Rev.Civ.Stat.Ann. art. 5143d (1971). (“The purpose of this Act is to create a Texas Youth Council ... to provide a program of constructive training aimed at rehabilitation and reestablishment in society of children adjudged delinquent .”) It is obvious that plaintiffs are not attempting to challenge the constitutionality of those statutes, whether as written or as applied, since they seek in this action to compel the defendants to comply with the statutory mandate by actually providing rehabilitative care and treatment.

The defendants, however, have strenuously urged the similarity of the instant case to the case of Baker v. Estelle, sub nom. Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973). In

Baker,

the Fifth Circuit remanded for consideration by a three-judge court a civil rights case brought by a prisoner. The plaintiff therein challenged the constitutionality of two procedures followed in Texas Department of Corrections institutions — disciplinary procedures (related to the loss of good time and commitment to solitary confinement) and censorship of attorney-inmate correspondence. The plaintiff appellee argued before the Fifth Circuit that a three-judge court was not necessary, because his constitutional challenge was directed to

practices

rather than to

regulations.

That court disagreed with him, stating that:

No party has contended that Texas prison officials are acting outside the scope of their statutory authority in carrying on these allegedly unconstitutional practices. The “practices” whose enforcement the inmates seek to enjoin are, in reality, the Rules and Regulations of the Texas Department of Corrections,

as applied.

491 F.2d at 428 . Of course, as noted above, the plaintiffs herein

do

contend that the defendants are in violation of their statutory authority. Yet the more central weakness in the defendants’ argument, and the distinction between the present case and

Baker,

lies in the ephemeral, mythical, and indeed, almost non-existent character of the central policy of the Texas Youth Council. There are no “Rules and Regulations” that apply to all of the institutions under the authority of the TYC, as there were for the Texas Department of Corrections in

Baker.

The court has repeatedly invited the defendants to point to some body of

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central regulations that govern the conduct of

all

of the institutions of the TYC. The following colloquy took place between the court and counsel for the defendants at oral argument of their motion for a three-judge court:

BY THE COURT

Q Specifically, what regulations of state-wide application are here involved ?

A Now if the court is asking the additional question to point those out in the minutes [of the meetings of the Texas Youth Council] — is that what is being asked?

Q Yes.

A Not able really to point out — we have studied them to some degree with that in mind. I cannot point out to the court specifically the

The only evidence even alluded to by the state that suggests a central policy of the Texas Youth Council is the “minutes” mentioned by the defendants’ counsel in the above exchange. These are records of the meetings of the three-member Board of the Texas Youth Council. There is apparently no stenographer who makes a verbatim transcript of the meetings, because the Executive Director of the TYC testified in his deposition that “any one of a number of people can take the minutes.” The minutes are bound in a volume which is not codified, indexed by subject, or updated —it is simply a chronological compendium of summaries of all TYC meetings since 1949 or before. Dr. Turman testified that for a superintendent of an institution to have an adequate knowledge of TYC central policy, it would be necessary that he read all of the minutes as far back as 1949, and be familiar as well with “what special directives apply and what opinions of the Attorney General apply and what orders from the legislative budget office, the Board of Control, the Legislative Audit Committee, and the State Auditor apply.” The “minutes” are not circulated to the treatment staff generally — the teachers, correctional officers, houseparents, and caseworkers — but sent only to the superintendent and business manager of each institution.

The court has carefully inspected the compendium of the TYC minutes from 1957 to 1972 and has found nothing there but the most general discussion of issues. Much of the recorded discussion concerns budget planning, building and construction projects, public relations, and other matters only tenuously related to the task of rehabilitating individual children. It is thus wholly impossible to construe the minutes as “rules and regulations.” Compare Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972) with Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973). In the words of the Supreme Court, these fleeting notations do not “partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider.” Board of Regents v. New Left Education Project, 404 U.S. 541, 545 , 92 S.Ct. 652, 655 , 30 L.Ed.2d 697 (1972).

Indeed, one of the bases of the plaintiffs’ challenge to the conditions in TYC institutions is the very evident absence of any central leadership, direction or planning for the Youth Council. Practically every decision related to employment, treatment, education, discipline, institutional life, and allocation of resources in an institution is left to the superintendent of that institution (who may, in turn, delegate the decision, intentionally or by default, to an even lower-echelon staff member). The defendants, in fact,

stipulated

that:

Policies of the TYC are set forth in the minutes of council meetings, special policy directives and the Council’s publication “Administrative Organization of the Texas Youth Council,” Attorney General's Opinions; General Appropriations bills and riders thereto ; special directives received from the State Comptroller, the State Auditor, the Texas Education Agency, and the State Board of Control have the force and effect of policy directives received directly from the TYC. Specific policy directives may be commu

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nieated to staff either by memorandum or by word of mouth.

Superintendents of Training Schools in the TYC system exercise wide discretion in formulating the programs, services and ground rules in their respective schools. The program may vary with respect to inspection of mail, furloughs, visiting, disciplinary policies, and in the amount and type of off-campus freedom permitted for students. Superintendents, with assistance from department heads, select for employment the personnel of their respective institutions.

As an example of the quality of guidance emanating from the TYC Central Office, Dr. Turman testified in his deposition as follows:

Q Returning for a moment to the Security Treatment Cottage at Mountain View, Dr. Turman, are you aware of what the policy in the Special Treatment Cottage there is in regard to family visitation?

A Yes.

A It depends on a number of things, and this would be determined by the superintendent at the time of the visit.

Q What kinds of factors would he take into consideration?

A Whatever factors he considered important at that time.

Q Are you aware of any factors that he would consider to be important?

A Well, there are many.

Q Can you give me an example of factors that a superintendent should take into consideration in determining how long a boy should see his family when he is in STC?

A Well, I’d leave that up to his judgment.

Q That’s up to his discretion entirely ?

A Yes.

Q So that you have never, for example, sent any policy directives to the superintendent of Mountain View as to the visitation length of a child in STC?

A Not that I recall.

A study of the factual portion of this opinion will reveal, as one might expect after reading the above, vast differences between the various institutions run by the TYC. Some of the institutions— homes for dependent and neglected children — were not even the subject of this lawsuit. Others — for instance, the Brownwood State Home and School for Girls — have been treated by the plaintiffs, the United States, and the

amici,

as more adequate facilities, the very existence of which demonstrates that the deficiencies of the remaining institutions need not continue unabated.

To the extent that there are written policies in the TYC institutions, such as manuals for employees or students, they are written for one institution only and are distributed to the staff and inmates of that institution alone. There are often major differences between the rules of the various institutions.

See

Board of Regents v. New Left Education Project,

supra.

Furthermore, the rules that govern institutional life in TYC institutions may vary from dormitory to dormitory or cottage to cottage

within the same institution.

Thus, some “dorm men” at Gatesville allow boys to smoke, others never allow smoking, and still others permit it or not as their whims dictate. Such illustrations could be listed at length. That all of these practices may be

consistent

with some nebulous policy certainly does not imply that a challenge to the practices is necessarily a challenge to the policy. In fact, almost

any

action, however arbitrary, by an employee short of physical abuse of a child is probably

consistent

with TYC “policy,” because that “policy” is so vague as to be non-existent.

In summary, the only enactments of state-wide application that the defendants suggest are challenged herein

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constitute the enabling statutes of the Texas Youth Council and TYC central “policy” as embodied in the minutes of the TYC Board meetings. With respect to the statutory provisions, the plaintiffs do not challenge, but seek to invoke them, for they claim that the actions of which they complain are inconsistent with the statute. TYC “policy,” as embodied in the minutes, is close to undiscoverable and does not constitute a coherent body of regulations that are applied throughout the system; such rules and regulations as exist are local to single institutions or even subdivisions thereof. For all of these reasons, the court reaffirms its earlier ruling that a three-judge court, pursuant to 28 U.S.C. § 2281 , is neither the necessary nor the appropriate forum for the consideration and determination of this case.

IV. RIGHT TO COUNSEL AND ACCESS TO THE COURTS

In January 1971, Steven Bercu, Esq., an attorney associated with the El Paso Legal Assistance Society in El Paso, Texas, was retained to represent Johnny W. Brown, a minor child then incarcerated in one of the institutions under the jurisdiction of the Texas Youth Council. In connection with a habeas corpus petition filed on behalf of Brown in the Juvenile Court of El Paso County, Bercu obtained a discovery order permitting him to interview a number of other TYC inmates who had been committed by order of the juvenile court. Bercu sought the discovery order, which permitted him “to interview and depose and take affidavits from” eighteen inmates of the TYC, after learning that Brown and other minor children might have been committed to the TYC by the juvenile court without a court hearing or any other requisites of due process.

Roland Daniel Green, III, Esq., was an Assistant Attorney General for the State of Texas between September 1, 1967, and November 16, 1972. One of his duties was to give legal advice to the TYC and its employees and to represent that agency in court. By January 1971, Green not only was aware of two applications for the writ of habeas corpus (one on behalf of Brown) filed by Bercu in El Paso, but also knew that the newspaper and television media had initiated certain investigations into the activities of TYC. When he learned of the discovery order issued in the Brown case, Green contacted Dr. James A. Turman, Executive Director of TYC, so that, in Green’s words, “the Youth Council could be on the lookout for Mr. Bercu.”

On January 27, 1971, Bercu and William Hoffman, Jr., Esq., an attorney associated with the Youth Law Center of San Francisco, California, arrived at the Gainesville State School for Girls, for the purpose of interviewing the six girls named in the discovery order. When notified of Bercu’s and Hoffman’s appearance, Green conversed by telephone with Turman, Bercu, and Thomas Riddle, the school superintendent. In the course of the conversations, Green attempted to persuade Bercu to interview the six girls in the presence of Riddle. Bercu refused this condition and insisted that he was entitled to interview the girls privately. Ultimately, Green, who claims that he knew of no attorney-client relationship between Bercu and the children, advised Turman and Riddle that it was within their discretion to require a supervisor’s presence during any interviews.

Each of the six minors Bercu and Hoffman interviewed stated that she had received no hearing whatever before the Juvenile Court of El Paso County in connection with her adjudication and commitment to the TYC. The attorneys thereupon informed the girls that federal constitutional requirements, established by the United States Supreme Court, provide certain safeguards for juvenile court proceedings, and that minors incarcerated in disregard of these provisions might well be successful in seeking relief by way of habeas corpus. After receipt of this advice, the six girls requested legal representation by Bercu and Hoffman. As a result of these interviews, which continued through Janu

*65

ary 28, 1971, Bercu and Hoffman obtained written authorizations to represent the six girls. Copies of these agreements were left with Riddle.

On January 29 and 30, 1971, Bercu and Hoffman conducted similar interviews with six minor children in the Gatesville State School for Boys and in the Brownwood State Home and School for Girls. Like the interviews at Gainesville, which were conducted in the presence of Riddle, the interviews at Gatesville and Brownwood were in the presence of the respective school superintendents.

On February 10, 1971, nearly two weeks after their first visit to Gaines-ville State School for Girls, Bercu and Hoffman returned to Gainesville to confer with their clients regarding the preparation of habeas corpus petitions in the juveniles’ behalf. They brought with them sufficient affidavit forms to support actions

in forma pauperis

and other documents necessary to file habeas corpus actions for their clients in the District Court of El Paso County, Texas. Upon the arrival of Bercu and Hoffman at Gainesville, Riddle notified Green by telephone that Bercu was again objecting to the presence of a supervisor during his interviews with the girls. Green once more attempted to persuade Bercu to accept this procedure, maintaining that TYC policy required the presence of a supervisor during the interviews. (Following the first hearing in this court, however, Green admitted that his interpretation of the policy was erroneous.)

Green then discussed the situation with Turman, who upheld Riddle’s position.

6

Turman detailed his purported reasons for requiring the presence of a supervisor during the interview which were as follows:

concern

about solicitation of clients, concern that the children’s families knew of no relationship between their children and an attorney, the possibility that NBC television might be involved, concern that the children might be obtaining drugs, and a general concern for the welfare of the children.

Following his discussion with Turman regarding the reasons for requiring the presence of a supervisor during the interviews, Green talked with Robert Flowers, Esq:, the Chief of the Enforcement Division of the Office of the Attorney General of the State of Texas. Flowers authorized Green to call Riddle by telephone and inform him that he, Riddle, should be present during the interviews. Green also informed Riddle in the subsequent telephone conversation that “our office would support Turman and him [Riddle].”

On February 11, 1971, Bercu and Hoffman sought the assistance of the Chairman and Vice-Chairman of the Youth Affairs Committee of the Texas Senate in seeking to interview their clients without interference; but the Senators were unsuccessful in reaching Turman. On the following day, Bercu and Hoffman, on behalf of the twelve children who had retained them as counsel, filed this civil action in the Sherman Division of the Eastern District of Texas. On February 16, 1971, plaintiffs filed a motion for preliminary injunction, seeking to enjoin the TYC and their agents from interfering with the children’s right to confer privately with counsel and from impeding in any manner their correspondence with counsel through the mail.

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At the subsequent hearings, it became evident that TYC policy regarding inmate interviews with attorneys was unclear. Riddle testified at one point that he understood TYC policy to require a representative of the TYC to be present during an inmate-attorney interview; but at another point, under questioning from the court, he admitted that he was unsure of TYC policy.

7

Turman, on the other hand, testified that the Attorney General of the State of Texas determined whether or not an attorney-client relationship existed between TYC inmates and attorneys, and that if Turman were in doubt he would simply contact the Attorney General. It appears that Green did tell Turman that he thought that solicitation by Bercu and Hoffman had occurred. Yet Turman made no determination on or before February 10, 1971, that the attorney-client agreements between Bercu and the children were invalid, nor did Turman seek to determine whether or not Bercu and Hoffman were members of the State Bar of Texas on or before that date.

Both Turman and Riddle admitted that TYC policy included the censorship of both incoming and outgoing mail to all persons, including attorneys and judges. Although Riddle stated that he did not ordinarily make copies of letters sent to inmates, he did make copies of two letters sent to plaintiffs’ attorneys by two girls, a Miss Jorgenson and a Miss Arnold. Riddle testified that he was not sure why he needed copies of these two letters;

8

but he stated that censorship of the incoming mail was necessary to prevent correspondence relating to escape plans and to prevent passage of drugs. Possible communication regarding escape plans was also given as a justification for censorship of outgoing mail.

After a hearing on the motion for preliminary injunction, an order was entered by this court which found that each of the twelve named plaintiffs had entered into a valid attorney-client relationship with Bercu and Hoffman, and which enjoined the TYC and their agents from (1) interfering with the rights of the children to confer privately with counsel and (2) from impeding in any manner their correspondence through the mail with their attorneys.

9

In response to a subsequent motion for clarification of this order, the court slightly modified and supplemented the original order, so as to enjoin the agents of TYC from any harassment or intimidation of the persons seeking to exercise their rights under this order.

The preliminary injunction regarding communication of TYC inmates with their attorneys was extended to a permanent injunction regarding mail censorship generally in the emergency interim relief order entered in the third phase of this action. In the conclusions

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of law accompanying that order, it was stated that:

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THE WITNESS : Since I have been superintendent, I don’t believe we have had any. AVe have had bench warrants when the children went home.

THE COURT: But no one has come to the institution that represented — ?

THE WITNESS: Since I have been superintendent — before I was superintendent I think there was one, but since I have been superintendent I don’t remember any attorneys that came to my knowledge now.

THE COURT: Well, with reference to the one attorney that came, that had been there, did lie talk privately with the girl, or was the interview conducted — ?

THE WITNESS: This I would have no knowledge of. T suppose he did. I don’t know. I just know that lie had a relation with the girl.

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Although this limitation on permissible censorship of the mail of adult prisoners remains uncertain, it is clear that any restrictions upon the important first amendment freedom of communication must bear, at the very least, a rational relationship to the advancement of a legitimate state interest. . . . The defendants have advanced no legitimate state interest, much less a compelling interest, that is served by the reading or censoring of incoming or outgoing mail, or by limitation of the persons with whom inmates may correspond. A legitimate state interest in preventing the flow of contraband into Texas Youth Council institutions justifies only the least restrictive practices adequate to achieve that interest — in this case, the opening of incoming mail in the presence of the inmate to whom it is addressed for the sole purpose of examining it for contraband.

364 F.Supp. 166, 174 (E.D.Tex.1973). Approximately eight months after this court’s decision, the Supreme Court decided Procunier v. Martinez, 414 U.S. 973 , 94 S.Ct. 264 , 38 L.Ed.2d 216 (1974).

Martinez

concerned,

inter alia,

the question of censorship of adult prisoners’ mail. Although confronted with arguments addressed to the prisoners’ first amendment rights regarding mail communication, the Court chose to decide the case on what it concluded was the narrower issue of the non-prisoner’s first amendment rights to correspond with the prisoner. Under this analysis, it was concluded that censorship of adult prisoner mail is justified if two criteria are satisfied. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Secondly, the limitation of first amendment freedom must be no greater than is necessary or essential to the protection of the particular governmental interest involved. The court identified the governmental interests at stake in the adult prison area as the preservation of internal order and discipline, maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.

After a reconsideration of the evidence in the instant action in the light of the standards advanced by the Supreme Court for deciding whether specific regulations or practices constitute an impermissible restraint on the first amendment liberties of non-prisoner correspondents, this court is not persuaded that its conclusion should be modified. Indeed, two considerations undercut considerably any argument contending that the governmental interests asserted here in earlier stages of this action justify the interference with mail beyond that permitted by this court in its emergency relief order. First, TYC no longer imposes any censorship requirements on outgoing mail. Secondly, several TYC school superintendents testified that they no longer impose any such restrictions on incoming mail, and that the apprehension regarding a flurry of escape plans has proved to be unjustified.

With respect to plaintiffs’ claim regarding the right of inmates to confer privately with counsel, it should be observed that, although the right to counsel is fundamental, the state is not without some rights to make reasonable rules and regulations regarding access of inmates to attorneys. One influential court has stated: “The state has a legitimate interest in protecting juveniles under detention from visits by attorneys (or persons asserting themselves to be such) whom the juveniles have expressed no desire to see and who have not established authority to speak for them.” Negron v. Wallace, 436 F.2d 1139 , 1144 (2nd Cir. 1971) (Friendly, J.). A review of the record before this court at this time is not persuasive that the views stated by certain TYC and Attorney General personnel in the episode complained of by the plaintiffs represent a policy promulgated by the TYC. Thus, any further relief regarding a

*68

TYC “policy” must necessarily await a better record.

Since the defendants are now not without some guidelines in this area,

see

Negron v. Wallace,

supra

at 1144-1145, the court does not anticipate that future adjudication will be necessary. Any policy adopted by TYC must necessarily conform to the constitutional requisites. Hence, the detained juvenile has a constitutional right to consult with his or her attorney in privacy, undisturbed in any manner by supervising personnel. The state has the right, on the other hand, to impose certain reasonable regulations, in the absence of an emergency.

10

Any of these regulations must, however, be subject to the caveat that inmates cannot be denied access to an attorney either by telephone or otherwise at any time that a legitimate emergency arises. Moreover, state personnel who have received some assurance that the person purporting to be an attorney is, in fact, a licensed attorney but who still harbor some concern regarding ethical matters such as solicitation, or any other such problem, should properly share this concern with the appropriate state bar grievance committee and this court.

The final matter concerns plaintiffs’ claim for damages against Turman and Green under 42 U.S.C.A. Sec. 1983 . With respect to the claim against Green, it is concluded that Green, as the Assistant Attorney General charged with rendering legal advice to members and employees of the Texas Youth Council, was acting within the scope of his authority at all times when he advised TYC personnel, and that he therefore is immune from suit under Sec. 1983 as a “quasi-judicial officer.”

E. g.,

Guerrero v. Barlow, 494 F.2d 1190 (5th Cir. 1974). With respect to the claim against Turman, this court concludes that, since it is undenied that Turman was at all times acting pursuant to the advice of Green, Turman should not be held liable.

V. PROCEDURAL DUE PROCESS

Following extensive discovery efforts and lengthy negotiations regarding allegations of the denial of procedural due process to juveniles in the adjudicatory stage, the parties were able to agree to certain findings of fact, which are set out in a footnote.

11

On December 27, 1972, this court entered an agreed order, which is also shown in a footnote.

12

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VI. CRUEL AND UNUSUAL PUNISHMENT AND THE RIGHT TO TREATMENT

With respect to the plaintiffs’ contentions concerning cruel and unusual punishment, it is clear that the eighth amendment’s proscription applies to the state as well as to the federal government. Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962). Moreover, the protection applies to persons who have not been convicted of crimes, such as juveniles involuntarily committed to the state’s institutions. E. g., Lollis v. New York State Department of Social Services, 322 F. Supp. 473 (S.D.N.Y.1970).

The Court of Appeals for the Fifth Circuit has recently held that a person involuntarily committed to a state mental hospital in a civil proceeding has the constitutional right to receive such individual treatment as will give him a reasonable opportunity to be cured or to improve his mental condition. In this decision, the court articulated the two-part theory underlying the due process guarantee of a right to treatment under the fourteenth amendment. Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974). The first part of this theory holds that any non-trivial governmental abridgement of liberty must be justified in terms of some per

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missible governmental goal. The governmental goals or interests typically advanced are danger to self, danger to others, and the need for treatment, care, custody, or supervision. In the instant case, the state is charged with a statutory duty to provide “a program of constructive training aimed at rehabilitation and reestablishment in society of children adjudged to be delinquent.” Tex.Rev.Civ.Stat.Ann. art. 5143d (1971). This basis for commitment — to rehabilitate and re-establish the juvenile in society — is clearly grounded in a

parens patriae

rationale. Thus, under the

parens patriae

theory, the juvenile must be given treatment lest the involuntary commitment amount to an arbitrary exercise of governmental power proscribed by the due process clause.

Under the second part of the two-part due process theory, the government must afford a

quid pro quo

to warrant the confinement of citizens in circumstances in which the conventional limitations of the criminal process are inapplicable. The three central limitations on the government’s power to detain are: (1) that detention be retribution for a specific offense; (2) that it be limited to a fixed term; and (3) that it be permitted only after a proceeding where fundamental procedural ‘safeguards are observed. In their absence a

quid pro quo

must be extended by the government to justify confinement. As previously noted, the

quid pro quo

applicable here, by virtue of state statute, is rehabilitative treatment.

In tracing the support for the second part of the theory in

Donaldson ,

the Fifth Circuit noted five groups of relevant cases. Among the fifth group of cases (each of which ordered injunctive and declaratory relief requiring that adequate treatment be provided in state-run facilities) were cases concerning juvenile delinquents. The decisions cited by the Fifth Circuit in the juvenile delinquency area were: Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974), aff’g 355 F.Supp. 451 (N.D.Ind.1972) cert. denied 417 U.S. 976 , 94 S.Ct. 3183 , 41 L.Ed.2d 1146 (1974); Inmates of Boys’ Training School v. Affleck, 346 F.Supp. 1354 (D.R.I.1972); and this court’s earlier decision granting emergency interim relief in the instant case, 364 F.Supp. 166 (E. D.Tex.1973). Donaldson v. O’Connor,

supra,

493 F.2d at 534 n. 32.

See also

Martarella v. Kelley, 349 F.Supp. 575 , (S.D.N.Y.1972), enforced D.C., 359 F. Supp. 478 (non-delinquent juveniles held as being “persons in need of supervision”).

Moreover, although the Supreme Court has never directly faced the question of whether a juvenile involuntarily confined in a state institution has a constitutional right to treatment, the Court has spoken to the underlying theory of the second part of the due process argument. In the landmark decision In re Gault, 387 U.S. 1, 22 , 87 S.Ct. 1428, 1441 , 18 L.Ed.2d 527 n. 30 (1967), the Court declared that:

While we are concerned only with procedure before the juvenile court in this case, it should be noted that to the extent that the special procedures for juveniles are thought to be justified by the special consideration and treatment afforded them, there is reason to doubt that juveniles always receive the benefits of such a

quid pro quo.

... In fact, some courts have recently indicated that appropriate treatment is essential to the validity of juvenile custody, and therefore that a juvenile may challenge the validity of his custody on the ground that he is not in fact receiving any special treatment.

Finally, plaintiffs claim a right to treatment under state statute as well as the federal constitution, and the state concedes such a statutory right.

13

The basis for this statutory right to treatment is found in Tex.Rev.Civ.Stat.Ann. art. 5143d et seq. Jurisdiction of the state claims in this court is based on its pendent jurisdiction, since such claims

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and the federal claims “derive from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725 , 86 S.Ct. 1130, 1138 , 16 L.Ed.2d 218 (1966). For a discussion of this “promise” of treatment,

see

Smith v. State, 444 S.W.2d 941 (Tex.Civ.App.— San Antonio 1969).

VII. CONDITIONS AT TYC INSTITUTIONS

A.

Introduction

The findings of fact in this memorandum opinion are based upon evidence presented at the time of trial. The findings employ the present tense, for any changes that may have come about since the trial of the case do not affect the record upon which the court is solely entitled to rely. The only exception to this stylistic choice of verbs occurs when the court describes a practice that was prohibited by the court’s Interim Emergency Order of August 31, 1973; such practices are described in the past tense, compliance with the court’s order being assumed.

The defendants have moved to reopen the record in this case for the presentation of further evidence relative to the changes that have occurred in the TYC program since the time of trial. The trial of this action took six weeks; the transcription of the record consumed another two months, and the court was not in possession of all of the briefs until March of 1974. It has acted as expeditiously as possible, since the subject matter of the ease is of the utmost importance. A reopening would entail further delays, with the need for more discovery, trial, and briefing. The defendants had a great deal of time to prepare for this case; they were on notice from a very early date of the practices the plaintiffs were protesting and had, in the opinion of the court, ample opportunity to alter them prior to trial, if they had been so inclined. Moreover, the fact that conditions have changed, if it is a fact, does not alter the plaintiffs’ right to relief from the practices of which they complain, for the defendants would otherwise be free to return to their old practices once the threat of litigation was averted.

See

United States v. W. T. Grant Company, 345 U.S. 629, 632 , 73 S.Ct. 894 , 97 L.Ed. 1303 (1953); Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968); Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966). In the exercise of the court’s discretion, the defendants’ motion to reopen the record for the receipt of more evidence is denied.

One fruitful source of evidence concerning conditions at the TYC institutions was the testimony of four individuals designated by the court to be “participant observers.” These trained experts were permitted, by order of the court,

see

59 F.R.D. 157 (E.D.Tex.1972), to enter the premises of the various institutions, inspect the physical facilities, attend various functions, participate in daily activities, and speak to both staff and inmates. Their perceptions, so much sharper than those of an untrained visitor, were of invaluable assistance to the court, and form the basis for many of the court’s findings.

B.

Physical Brutality and Other Forms of Abuse

1. Maximum Security Confinement: Mountain View State School for Boys

The Mountain View State School for Boys is the maximum security facility operated by the TYC. It is surrounded by two fences, both of which are topped with barbed wire. Prior to entry of this court’s emergency interim relief order, a juvenile could be initially assigned to Mountain View on the basis that he had been adjudicated delinquent for a serious offense or he could be transferred there from one of the other TYC institutions for boys, usually Gatesville, as a result of a decision that his conduct was unsatisfactory. In either case, the decision was left largely to the discretion of the staff. Thus, there were at least some boys incarcerated at Mountain View whose delinquent behavior

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consisted of such “status” offenses as truancy, incorrigibility, or running away from home. Also present at Mountain View were some boys who had been transferred there from other schools for such essentially non-violent, uncooperative behavior as swearing at correctional officers, refusing to work, or running away.

Mountain View’s history, well known to the inmates of both Mountain View and Gatesville, has been one of brutality and repression. New boys placed at Mountain View are called “fresh fish,” and are “tested” by various forms of physical abuse, applied by staff or other boys with the encouragement of staff. For example, one entering boy, identified as C. W., was initially beaten by the other boys in his cottage with the tacit approval of Correctional Officer Flores. Later that day, the boys who administered the beating were, in turn, “racked” by Flores — that is, forced to line up against the wall with their hands in their pockets while the correctional officer punched each one in the stomach. On the following day, while Correctional Officer Stovall watched, C. W. was hit and kicked by seven or eight boys in the corner of the cottage day room for more than an hour. After C. W. had been knocked unconscious, Stovall stopped further abuse, announcing that he did not want any “dead fish” on his hands.

Staff brutality at Mountain View is not ignored, but — by precept and example — encouraged, by those in authority. It was in evidence, for instance, that Assistant Superintendent Mack Morris slapped one boy in the face for talking in the superintendent’s office. The evidence was also uncontradicted that the school principal slapped another boy in the face, back, and head for speaking Spanish. The Supervisor of Correctional Officers, Joe Gail Sassy, is notorious for his abuse. In one incident, Sassy called Correctional Officer Foster on the phone and directed him to send down a boy named “Slut” (M. A.). The boy went to Sassy’s office and returned shortly thereafter with swollen eyes and jaw, blaming Sassy. In another case, Sassy called a boy out of his cottage for not reporting on time. When the boy returned from Sassy’s office, his face was swollen and one eye was almost closed. In still another incident, Sassy broke up a fight between R. J. and H. C.; he then “racked” R. J. for approximately twenty minutes and R. C. for about four minutes.

Prior to entry of this court’s emergency interim relief order, staff brutality was a regular occurrence in the security wing at Mountain View, called the Security Treatment Center (STC). In the sordid parade of evidence brought before the court showing incident after incident of physical abuse, two occurrences seem particularly brutal and cruel. In one of the incidents, Correctional Officer Supervisor Sassy interrogated W. B., after W. B. had attempted suicide. When W. B. did not answer his questions, Sassy hit W. B. several times, knocking the boy to the floor, and sprayed tear gas in his face from close range, shouting,

“I

have a way to make you talk.” This outrage happened in a room five to six feet from Assistant Superintendent Morris’ office. W. B. was taken to the infirmary; but the attendant asked him no questions about the tear gas and administered no medical treatment. W. B., pursuant to Sassy’s instruction, made no mention of the tear gas in the subsequent incident report.

The second occurrence related to one, “Tweetybird,” an allegedly homosexual boy given to screaming fits. On the occasion in question, the boy, for an alleged rule violation, was called from his solitary confinement cell in the STC by Correctional Officer Johnston, who took him down a corridor to a central location in the STC. There, Johnston proceeded to “rack” Tweetybird severely, then bound the boy’s hands behind his back and blindfolded him. Johnston thereupon twirled the boy around several times and commanded him to run to his cell, the order being accompanied by threats of another beating if the boy did not proceed rapidly. In trying to follow

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Johnston’s order, Tweetybird ran headlong into the corridor walls several times; finally, screaming and crying, he fell to the floor. Johnston terminated the torture by placing his foot on Tweetybird’s stomach and covering the boy’s face with a mop. Complaints by another correctional officer to Supervisor Ross about this incident and other conditions in STC brought no results.

The use of tear gas on boys during the period preceding entry of this court’s emergency interim relief order was widespread. Many of the instances involving tear gas were the subject of “incident reports,” which are designed to record instances of the use of physical force by both inmates and staff of TYC. One such incident report, dated January 13, 1971, and identified by Clarence Stephens, Casework Supervisor at Mountain View, reported that one, M. F., threw down his pick and started running from a work detail. The boy was placed in the STC, and, for shouting, was afterward subjected to tear gas in his cell. Stephens identified incident reports of April 19 and 20, 1973, reporting that tear gas was used on one, B. L., with the permission of Assistant Superintendent Morris, when the boy refused to work and threatened to run. After being administered tear gas, the boy was examined at the hospital and then returned to a work detail. • The next day, when B. L. again tried to run away and was apprehended, Morris once more gave assent to tear gas being used on the boy.

A third report, dated October 25, 1973, reflects that D. F. ran away from a security work detail. After he was caught, D. F. was held by two correctional officers and sprayed with tear gas. A report dated August 31, 1964, indicates that tear gas was administered to a boy in a cell in the STC, for being “troublesome” and “uncooperative.” The report reveals that Morris gave his approval to the procedure thus employed. Although Stephens reviews staff incident reports concerning staff brutality, including those reporting the use of tear gas, he has never inquired as to the meaning of the phrase “sufficient force to bring [a boy] under control,” which appears continually in these reports, often as a justification for the use of tear gas.

Although certain instances involving physical abuse of inmates by the staff are accurately reflected in the incident reports, many more are either unreported or inaccurately reported. It is common knowledge at Mountain View that reported incidents are deliberately falsified to protect the correctional officer, and that witnesses do not file incident reports of staff brutality for fear of retaliation. Even boys who testified about Mountain View at the trial of the civil action feared for their physical safety upon returning. It is not only the correctional officers who pose a threat. Certain boys, known as “office boys,” are coerced or persuaded to act as enforcers for the officers in exchange for special privileges. Office boys will falsify reports to protect an officer, and may provoke an incident with a boy who has “snitched” to injure him or prejudice his chances for release.

Mountain View employment practices are not aimed at curbing staff brutality. The pre-employment screening of correctional officer staff at Mountain View consists of brief interviews with a correctional officer supervisor, the superintendent, and the assistant superintendent. There is almost no discussion of the use of force by the staff in these interviews. Furthermore, there is no pre-service training or orientation for correctional staff. New employees are instructed to follow other staff around to learn the rules on the use of force and to use their “own discretion.” Prior to entry of this court’s emergency order, it was customary for correctional officers to accept the use of severe brutality against boys, for frivolous as well as serious kinds of disruption. Thus, conduct justifying this type of punishment included anything from spitting on the sidewalk to attacking a correctional officer. The school principal instructed a new physical education teacher to slap any student who did not follow instrue

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tions. A former correctional officer was admonished by his supervisor that his job was in jeopardy, because he did not “rack” boys for fighting and failed to kick them when they stepped out of marching lines.

At staff meetings, new officers’ requests for definitions of the phrase “out of control requiring force” were met with evasive answers. Although the correctional officers often talked among themselves about the brutality exercised against the children, the reporting of incidents of brutality to the superintendent was regarded as worthless, and only resulted in the suggestion to the reporting officer that he resign. One former correctional officer, Foster, was reluctant to testify about conditions, because he had heard that two teachers who testified concerning Mountain View were “blacklisted” from other state jobs.

Dormitories One and Nine at Mountain View were designated as “punk” dormitories, and were regarded by inmates and staff as the homosexual dormitories. Dormitory One has “homosexual” Black students; Dormitory Nine has only Anglo and Mexican American “homosexual” students. Prior

to

entry of this court’s emergency order, boys were placed in these dormitories for having “homosexual tendencies,” because they were “pressured” by other boys, or “didn’t get along in the other dorms.” The correctional officers, who are the least qualified and least educated of the staff and who have no special training in this regard, made these placement decisions. The Gates-ville school psychiatrist, Dr. Charles Smith, never criticized such segregation to his superiors. The Mountain View Casework Supervisor, Clarence Stephens, although not critical of the practice, conceded that it “might be detrimental and not therapeutic.”

The Director of Child Care for TYC, David Sandefur, was aware that Mountain View segregated certain boys by race, but did not know the reason. Although he testified that he trusted the judgment of the Superintendent and Assistant Superintendent as to this policy, he admitted that it would be more rational to separate the boys by passive and aggressive actions, rather than by race. He also conceded that labeling a child of thirteen to seventeen years of age as “homosexual” is detrimental to the child’s welfare in any case. Nevertheless, Sandefur approved of the policy as necessary to maintain institutional control.

Expert witnesses were unanimous in concluding, however, that such labeling is inappropriate, destructive, and often inaccurate, because some experimentation with the same sex by adolescents is normal. Experts also testified that such labeling and segregation strips a child of his individual identity, does much to force him to homosexuality as a permanent mode of sexual expression, and is, therefore, extremely anti-therapeutic.

2. Gatesville State School for Boys

Dwain Place, Superintendent of the Gatesville State School for Boys, described his philosophy with respect to control and discipline as follows: “We don’t have any punishment for discipline. We may have punishment for control. If you want to call it punishment, we use force for control. . ” Although incident reports have recorded certain instances of brutality, the supervisory staff and, specifically, Superintendent Place, have taken no action whatsoever to eliminate the uses of excessive force. Thus, in a special incident report dated May 30, 1973, the investigating staff member, Carroll Duke, concluded that a correctional officer had struck R. C. several times without justification. The only action taken against the correctional officer was a verbal reprimand; there was no recommendation for firing or referral for criminal prosecution.

14

In another inci

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dent, while a group of boys from the Hackberry Subschool of Gatesville were returning from a field trip by bus, one, Robertson, a teacher, in the presence of other teachers and correctional officers, struck, kneed, kicked, and punched W. H. and G. P. numerous times for pretending to fight in the bus. The boys in no way threatened the teacher or sought to fight back. W. H.’s eardrum was badly injured — “with a hole going straight through it.” At the instruction of Robertson, W. H. falsified his report of the incident, stating that the injury was an accident. A concerned teacher intern witnessing the beating reported it to another teacher. The teacher told him, “If you stay around the school long enough you better get used to it, because you’ll see plenty and worse.” Several witnesses testified that Correctional Officer Schultz used excessive force against students on numerous occasions. One of his innovations included placing a boy's head between his, Schultz’s, own legs and then running in place. Another of his variations was to stand on a boy’s stomach.

The frequent use of certain forms of brutality has given rise to a jargon peculiar to the Gatesville inmates and staff. A “peel” is administered by forcing a boy to bend over, then striking him hard on the back with a fist or open hand. A “tight” is applied by forcing a boy to bend down, holding his own ankles and toes, then striking him on the buttocks with the handle or straw end of a broom. A boy is subjected to “brogueing” when he is kicked in the shins. Such punishment has been meted out for “wearing pants too low;” “losing a baseball game;” “leaving shoes out;” or “leaving cards out.”

Gatesville incident reports, like those at Mountain View, are frequently never filed, and when filed, are often falsified. Victims do not report incidents of brutality to caseworkers or other staff, because such procedures are not explained to them. Retaliation for filing a report has included the assignment of extra duty to the complainant or his transfer to Mountain View for an eighteen-month stay.

Expert witnesses testified that it is very difficult, even with a conscientious staff, to detect brutality in a large institution. Although the most reliable source for such charges is inmate complaints, many inmates who first report brutality will often retract their reports. New or emotionally disturbed students, not knowledgeable in the ways of the institution, sometimes will “blurt out” instances of brutality. Dr. Jerome Miller, a particularly well-qualified expert, contended that such allegations should be investigated, even when the student later disclaims the charge. Dr. Miller explained that “most allegations, not all but certainly most, and virtually all of the serious allegations that come to us from young people, ultimately turn out to.have some sound basis in fact and in reality.” According to the expert witnesses, in a large institution such as Gatesville, which banishes the troublesome elements of its population to another institution such as Mountain View, repressive measures and corporal punishment are almost inevitable. Expert witnesses further concluded that knowledge of and opposition to brutality is apt to rise to the surface more quickly in small, community-based programs.

3. Girls’ Institutions

Although brutality in the girls’ institutions did not appear to be as widespread as that in the boys’ at' the time this court entered its emergency order,

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some instances of physical abuse were nevertheless present. Some incidents occurred in school, e.

g.,

one Gainesville girl was slapped hard by her teacher after she threw her book on the desk; another was struck by one of the school principals. Some of the physical abuse was administered by houseparents, referred to sometimes as “papa” or “mama.” A Crockett girl observed “Papa” Watson grab a girl by her hair and throw her into a STC cell. Another girl was similarly assaulted by “Papa” Watson when she did not sit down quickly; on four occasions, this same girl was injured when struck with an eighteen-inch key chain by “Mama” Watson.

4. Conclusions

Schools under the jurisdiction of the TYC, particularly Mountain View and Gatesville, have been the scenes of widespread physical and psychological brutality. In the emergency interim relief order, several practices found to be in violation of the eighth amendment’s proscription of cruel and unusual punishment were enjoined on the grounds that such practices were so severe as to degrade human dignity; were inflicted in a wholly arbitrary fashion; were so severe as to be unacceptable to contemporary society; and finally, were not justified as serving any necessary purpose.

See

Furman v. Georgia, 408 U.S. 238, 257-306 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) (Brennan, J.); see

also

Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).

Practices found by this court to violate the eighth amendment were: the widespread practice of beating, slapping, kicking, and otherwise physically abusing juveniles in the absence of any exigent circumstances,

see

Ingraham v. Wright, 498 F.2d 248 (5th Cir. July 29, 1974); the use of tear gas and other chemical crowd-control devices in situations not posing an imminent threat to human life or an imminent and substantial threat to property; the placing of juveniles in solitary confinement or other secured facilities, in the absence of any legislative or administrative limitation on the duration and intensity of the confinement and subject only to the unfettered discretion of correctional officers; the requirement that inmates maintain silence during periods of the day merely for the purpose of punishment; and the performance of repetitive, nonfunctional, degrading and unnecessary tasks. Included as such tasks (the so-called “make work”) were: requiring a juvenile to pull grass without bending his knees on a large tract of ground not intended for cultivation or any other purpose; forcing him to move dirt with a shovel from one place on the ground to another and then back again many times; and making him buff a small area of the floor for a period of time exceeding that in which any reasonable person would conclude that the floor was sufficiently buffed.

In addition to these practices, which obviously constitute some form of affirmative action on the part of the defendants, there are also certain abuses that arise because of a defendant’s failure to act. Confinement under circumstances giving rise to a high probability of physical injury to inmates, whether because of insufficient custodial staff or otherwise, may constitute cruel and unusual punishment.

E. g.,

New York State Association for Retarded Children v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973). Two practices fall in this category of eighth amendment violations. The first is the practice of housing up to forty boys in an open dormitory, with the only correctional officer on duty locked in a “cage” and prevented from assisting boys in an emergency. This “eageman” is confined to a small area, elevated above the dormitory and separated

from

the two areas of the dormitory by wire mesh. He must call by telephone to other correctional officers outside the dormitory for assistance in times of stress. The second such practice is the failure to administer proper psychological testing or other screening procedures to eliminate potential staff members unqualified to treat juvenile

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offenders. With respect to these two deficiencies, the National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Corrections recommends the following:

Correctional authorities should:

1. Evaluate their staff periodically to identify persons who may constitute a threat to offenders and where such individuals are identified, reassign or discharge them.

2. Develop institution classification procedures that will identify violence-prone offenders and where such offenders are identified, insure greater supervision.

3. Implement supervision procedures and other techniques that will provide a reasonable measure of safety for offenders from the attacks of other offenders. Technological devices such as closed circuit television should not be exclusively relied upon for such purposes.

Corrections Task Force Standard 2.4, Page 31.

In addition to certain practices found unconstitutional under the eighth amendment, the emergency interim relief order held that the racially segregated dormitories at Mountain View were unconstitutional, Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L. Ed. 873 (1954); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff’d 390 U.S. 333 , 88 S.Ct. 994 , 19 L.Ed.2d 1212 (1968), and that the segregation of some juveniles from the general population on the basis of suspected homosexuality, when performed by correctional officers untrained in psychology or any other field that would qualify them for such task, was unconstitutional as a violation of the juvenile’s right to treatment.

All such practices found constitutionally deficient in the emergency interim relief order, except those relating to the abuses of the large dormitory setting and inadequate personnel screening, will be the subject of a final injunction. With respect to the abuses relating to the large dormitory setting and the inadequate screening of personnel, the parties will be directed to seek to agree on a plan consistent with the guidelines set out above by the Corrections Task Force. This court further directs the parties to attempt to agree on a plan for a grievance procedure designed to bring to the attention of TYC personnel, and ultimately the TYC Board, allegations of staff brutality or other forms of physical or psychological abuse.

C.

Disciplinary Procedures

1. Security Treatment Center (STC), Mountain View

The security wing in the maximum security facility, Mountain View State School for Boys, is used to confine boys for disciplinary reasons. Although boys have been confined in security for as long as thirty days, the average period of stay is fifteen to seventeen days. The inmates are not informed of what conduct can or will result in security incarceration, and a decision to confine a boy is ordinarily within the complete discretion of a correctional officer. Records of Mountain View show that typical offenses and corresponding periods of incarceration include: “not doing exercises,” twenty-three days; “gambling for candy,” fifteen days; “trying to slip letters out,” twenty-five days; “writing love notes to another boy,” or “writing love letters to a lady academic teacher” or “refusing to work,” fourteen days; “throwing a bar of soap at a boy,” nine days; “masturbation,” twelve days.

Each cell in the STC is a six-by-twelve foot locked room, with a solid door. The door has a small window, which is painted over, and a narrow slit for food trays. The cell’s only artificial light resembles the headlamp on an automobile and is located in a wall near the door. This light is never turned off or dimmed and is presumably intended to keep the room’s occupant awake. Moreover, the cell is poorly ventilated; it is hot in summer and cold in winter. On weekends and after 3:30 o’clock, p. m., the guard does not have a key to the

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locked security cells. In an emergency, he must call out to a supervisor outside the unit to come and open a door. On one occasion, it took twenty minutes for the supervisor to open the cell of a sick boy.

Prior to the entry of the emergency interim relief order enjoining certain practices, the rules and work assignments were legion, and limited only by the sometimes vicious imaginations of the correctional officers in charge. Violation of the rules by a boy in the STC resulted in longer security incarceration or imposition of “racking.” Such boys were not allowed to speak except to answer a staff member; and they were not allowed to look out the window. Until the rule was suspended in the spring of 1973, inmates of the STC were not permitted to sit on their beds during the day, to attend school, to have school books, or to go to sleep until 10:00 o’clock, p. m. If they fell asleep before that time, they were required to buff the floor and walls of their cell with a towel. The “no sleeping” rule applied to all boys, including those on sleep-inducing medication.

Many other examples were submitted in evidence of practices sanctioned by TYC staff, prior to entry of the emergency order: boys in security were allowed one visitor per month for ten minutes, and the visitor had to be accompanied by a supervisor; the boys’ caseworkers were prohibited from visiting them in the STC; haircuts were administered to boys in the STC while lined up, heads bowed (boys who raised their heads were knocked down by a guard); while outside the security wing, boys in the STC were required to hold their heads down (although they were instructed not to do so when Special Agents of the Federal Bureau of Investigation photographed the security work detail).

One work detail for boys in security was “picking” — a useless, strenuous, degrading exercise performed five hours a day. When “picking”, boys were lined up foot to foot, heads down, and were required to strike the ground with heavy picks, swung overhead as the line moved forward. Nothing was ever planted in the picked ground. The regimen consisted of working for an hour and a half at a time with fifteen-minute breaks. During the breaks, the boys were required to sit in a line with their heads between their legs, looking down; they were not allowed to look in either direction or to talk. Boys in the STC who refused to leave their security cells to work on this detail were often forced to endure the introduction of tear gas into their cells. An infraction of a rule relating to the “picking” detail was the subject of summary, brutal punishment. For the less than heinous offense of talking while he was picking, one boy was punched in the chest by a correctional officer until he doubled over, and was then hit in the mouth. Others were beaten because they dropped their picks or became ill.

Review of placement in the STC is done twice weekly by the discipline committee, which consists of the superintendent, assistant superintendent, school principal, casework supervisor, correctional officer supervisor, and one chaplain. Before the entry of the emergency interim relief order, the committee review procedures were often violent. A boy under review by the discipline committee was required to run in his bare feet — at top speed — from the security wing to the committee meeting room. If the boy did not run fast enough, he was “racked” or beaten by a correctional officer. A boy before the committee had no advocate, and his caseworker was usually not there. He was never told at the meeting whether he was to be released or any reasons for the commitee’s actions.

Expert witnesses were unanimous in concluding that it is anti-therapeutic and psychologically destructive to confine a child in the STC for as long as thirty days for disruptive behavior. Expert witnesses also found no merit in the rule of enforced silence, the ban on sleeping, the unrestricted use of tear

*80

gas, and the demeaning procedures before the discipline committee. It was also their judgment that most other so-called disciplinary practices at the Mountain View STC have no rehabilitative value; that they are strictly punitive and serve only to degrade and belittle the boy concerned. Expert witnesses further testified that isolation (or complete segregation from the group and program) should take place only in a child’s individual room; that restrictions should be placed on the duration of the confinement; and that caseworkers should be required to visit the confined juvenile regularly.

2. Mountain View

Like the boys “on the hill” (in the STC), who are assigned the “picking” detail as punishment, those in the nonseeurity portions of Mountain View, prior to the entry of the emergency interim relief order, were also assigned certain degrading, make-work tasks. One such “extra duty” task was “grass pulling.” For as much as two hours at a time, without a break, and for as long as six hours a day, boys were required to pull grass from the ground. In fulfilling this task, they were ordered to bend at the waist, keeping their knees straight, without looking at or talking with other boys. Although this position was extremely uncomfortable and difficult to maintain for a long period of time, boys bending their knees were “racked,” kicked in the teeth, punched, and beaten.

Boys were put on this extra duty for such offenses as “talking back,” talking in the “chow line,” “not finishing all the food on their plate,”, “wearing shoes in the dormitory,” “not changing their pants,” “just irritating a correctional officer,” or “going in the peach orchard without permission.” At some time in the late spring of 1973, after experts and counsel had visited Mountain View, the grass pulling position was changed to permit the boys to bend their knees.

The “grass pulling” detail was often associated with various acts of violence by the staff. One particular incident is revealing. While on grass pulling duty in March 1973, R. J. became tired after three hours and bent his knees. For this, he was kicked in the back and punched in the mouth by Correctional Officer Doyle, and told to go back to pulling. When he again became tired and started to stand up, Correctional Officer Schnick kicked him in the head with his booted foot. (Sehnick’s height is six feet, two or three inches; he weighs about 200 pounds. R. J. was five feet, six inches in height and weighed approximately 110 pounds.) When R. J. complained that his side hurt, Schnick told him to keep pulling, and later kicked R. J. twice more in the head. Apparently desperate, R. J. escaped from the work detail and ran to the superintendent’s office. There, he met Correctional Officer Supervisor Freeman, who pulled the boy into his office by the neck. After slapping R. J., the officer told him to get up against the wall and put his hands in his pockets. Freeman (in the presence of Correctional Officer Supervisor “Chop Chop” Wimberly

15

) then struck the boy many times in the jaw and stomach with fist and open hand, and kicked R. J. when the boy fell down. Freeman thereupon ordered another boy to bring R. J. clean clothes (to replace his bloody ones), made R. J. sign a false incident report written by Freeman, and then hit R. J. in the jaw again. Subsequently, Freeman directed R. J. to run back to “grass pulling” duty. Freeman followed R. J. closely in a pickup truck, all the while racing its engine. Late that evening, R. J. was placed in the STC for running away from work duty.

A Mountain View teacher, Jones, who had observed Schnick’s brutality to R. J. on the grass pulling detail, reported to Correctional Officer Supervisor Freeman that he thought the discipline was “too rough.” In response, Freeman

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merely shrugged his shoulders. When Jones explained to Mountain View Superintendent Adams how the boy was punched and kicked, Adams told Jones that Schnick “probably thought he was doing the right thing at the particular time” and that “if [he] didn’t like the way things were run around there [Jones] could find another job.” Jones was not asked to make a written report on the incident or told that he could do so by either Freeman or Adams. Schnick was still employed at Mountain View as of July 1, 1973, at least four months after the incident.

In another incident, T. A., who was assigned one night to “grass pulling” duty, performed the task while resting his weight on both knees. When this violation of the rules was discovered, he was called to the supervisor’s office by Correctional Officer Supervisor Sassy. The officer had the room cleared, then instructed T. A. to put his hands in his pockets and get up against the wall. Sassy (described as being about six feet, two or three inches in height and weighing about 290 pounds) then “racked” T. A. and punched him in the face and chest, causing significant injury to T. A.’s nose and mouth. T. A. was subsequently ordered back to grass pulling. Late that evening, he was forced by Sassy to sign an incident report saying that the injuries were sustained when he was struck by a football. On this occasion, Sassy threatened T. A., stating that if T. A. did not sign the report, he would “lock [T. A.] up and get [him] for it.” Only then was T. A. permitted to go to the infirmary for treatment. ■ The incident report was a complete falsification, written by another boy at Sassy's direction.

Another degrading, useless, make-work task at Mountain View is placement “on shovel.” When performing this detail, boys line up in a circle with shovels, run around the circle with a shovelful of dirt, and then drop the dirt in another pile. This fruitless activity may continue for as long as six hours at a time. When lawyers started visiting the institution in August and September of 1972, the dirt circle trails were obliterated by “picking,” so that evidence of this extra duty was not visible.

3. Gatesville

Boys arriving at Gatesville are neither given copies of the rules nor given any instructions as to their nature or content. Rather, each correctional officer imposes his own set of rules, placing the burden on the new arrival to learn either by his own mistakes or from those of others. Before entry of the emergency interim relief order, Gatesville, like Mountain View, had a variety of “disciplinary” measures. One form of punishment was placement “on crumb” — sitting on a chair in the dormitory day room ail day long, facing a wall, and neither talking nor participating in any activities. In one case, a boy talking while “on crumb” was slapped off his chair, then kicked and struck by Correctional Officer Schultz. In another case, a boy falling asleep when “on crumb” was forced to stand and hold a chair off the ground at arm’s length for an agonizingly long period of time.

Other practices included shaving a boy’s hair because he did not keep it combed, shaving a boy’s face with a pocketknife, and, for smoking, requiring a boy to stand against the wall with his arms in the air. Extra duty also included forcing a boy to work in the “R. D.” (a sewage or garbage ditch). After working in this ditch, up to the waist in garbage and stench for four hours, a boy would then be required to go to lunch without changing clothes or taking a shower. Superintendent Dwain Place instituted no investigation of any kind into allegations made at the trial of this case that boys were forced to do such unproductive and humiliating labor, and indicated that he had no intention of doing so. He felt that, although working in the “R. D.” ditch would not be helpful to a boy, such work could be justified, because, in his judgment, anything that helps the staff control boys is therapeutic.

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4. Crockett

Girls entering Crockett State School for Girls are given a copy of some of the rules regulating their conduct in the institution. Violation of these rules may result in a girls’ confinement in the Security Treatment Cottage (STC). During the period preceding entry of the emergency interim relief order, many girls were kept in STC longer than the thirty-day maximum permitted by TYC policy. In Superintendent Harrell’s opinion, TYC policy was not violated by keeping a girl in the STC for thirty days, letting her out a few hours, and then putting her back in. Although the professed purpose of confinement in the STC was not punishment, girls were not permitted to talk to fellow students while there.

Another disciplinary measure was placement of a girl in “room lockup.” This meant that the room was stripped of all furnishings, forcing the girl to sleep on the floor. One girl was put on room lockup for seven days without clothes and shoes; another was allowed out of her locked room only for an hour and a half each day, received no academic education, and was visited by no one except a psychiatrist, and then on only one occasion. Still another girl was confined in the STC for twenty-four days and was never visited by a psychiatrist or her caseworker. She had been in the STC eleven times while at Crockett. An average stay in the STC was seven to ten days.

Superintendent Harrell testified that since the girls perceived the STC as punishment, he abolished it in June 1973, without the knowledge or approval of the TYC Central Office. Under the new system, a misbehaving girl is placed in the individual room of a regular cottage when isolation is necessary. Harrell’s new procedure is very similar to that adopted» by the court in its emergency order.

5. Gainesville

Unlike the girls entering Crockett, those arriving at Gainesville receive no written rules regarding conduct. Girls are sent to the STC at the discretion of the staff; they are not told the reason they are sent. Misconduct meriting discipline includes whispering, “lagging” in line, calling a houseparent “Honey,” and chewing gum. The weekly discipline committee ordinarily does not meet as to a girl’s placement in the STC until after transfer; thus, one girl was in the STC for six days before the first meeting of the committee relating to her case. The average stay in the STC at Gainesville is fourteen days. Girls are not visited by their caseworkers while in the STC; often they see nobody outside the STC except for the discipline committee.

The STC consists of individual, locked rooms in a cottage. Four STC rooms are stripped cells, where the only piece of furniture is a bed. A girl can be placed in the STC by the staff supervisor on duty at the time a problem arises; if in the academic school, a girl can be placed in the STC by a teacher who has no training in the treatment of adolescent girls. The practice of not allowing girls to wear their own clothing in the STC and forcing them to wear loose-fitting nightgowns, observed in March 1973, was changed just prior to the trial of this case. Moreover, about one-third of the girls in the STC recently have been permitted to attend regular academic classes.

6. Brownwood

Both the Brownwood State School and Home and the Brownwood Statewide Reception Center have provisions for security measures, some of which served as something of a model for this court’s ruling regarding secure confinement in its emergency interim relief order. Under its former program, girls, on the recommendation of a psychiatrist, psychologist, or caseworker, could be placed in the STC for escaping. A girl could also be put in a stripped isolation room for up to thirty minutes without staff contact. During the week, the offending girl’s social worker was required to approve a security transfer;

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on weekends, it was the function of the houseparent supervisor. Caseworkers were required to visit girls in isolation daily. Girls wore their own clothes and usually attended regular school after the second day in isolation. Brownwood is contemplating a crisis intervention program with “floating” staff to treat the girls who need security treatment in their cottages. The Brownwood Reception Center’s security wing includes five stripped cells. Any girl incarcerated there is given a blanket and wears pajamas. The staff usually manages to deal with girls who pose problems in the regular rooms without resorting to punishment or confinement in security. The security wing at Brownwood was not used more than five or six times in the year prior to July 1973. Before entry of this court’s emergency order, however, a girl entering confinement in the STC might remain there as long as it was felt necessary to control her behavior— whether twenty minutes or several days.

7. Conclusions

Although some TYC personnel, testifying in behalf of the defendants, indicated that they did not impose “punishment” on juveniles, but rather “special treatment” or some form of “behavior modification,” such semantical differences are not worth pursuing for purposes of this analysis. Any substantial deprivation of liberty or property, regardless of its characterization, may raise a due process claim under the fourteenth amendment.

E. g.,

Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972). Yet certain forms of disciplinary action, special treatment, or behavior modification are not substantial enough to require the imposition of due process procedures prior to the taking of such action, and may be continued by the defendants. Such disciplinary action, special treatment, or behavior modification must, nevertheless, be consistent with other sections of this court’s order regarding cruel and unusual punishment and the juvenile’s right to treatment.

In the interim emergency relief order, this court identified the placement of a juvenile in a secure facility (either solitary confinement, security, or dormitory confinement, as those terms were defined) as a substantial deprivation of liberty requiring invocation of certain due process procedures. Under that order, “solitary confinement” (defined as the placing of a TYC inmate alone in a room (other than a locked or otherwise secured room or cell in the inmate’s own dormitory)) is permitted only when such confinement is clearly necessary to prevent imminent physical harm to the inmate or to other persons or clearly necessary to prevent imminent and substantial destruction of property. Placement of a juvenile in “security” (defined as the placing of an inmate in a locked or otherwise secured building which may contain one or more solitary confinement rooms or cells) is permitted only when clearly necessary to prevent escape or clearly necessary to restrain behavior that creates substantial disruption of the routine of the institution. Finally, “dormitory confinement” (defined as the placing of an inmate alone in a locked or otherwise secured room in his own dormitory) is provided as an alternative to either solitary confinement or security, but subject to the same standard for determining whether confinement is proper.

Confinement in either solitary confinement or security is not permitted under the emergency order for longer than three consecutive days, in the absence of a written report prepared and signed by the inmate’s caseworker, detailing the justification for such confinement. Moreover, the burden of preparing such reports shifts to the executive director of the TYC after five consecutive days of solitary confinement, and after ten consecutive days of security confinement.

From a study of the post trial briefs of the parties, this court concludes that these procedures do not provide a constitutionally sufficient check on potential abuse of confinement in sol

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itary confinement or security. The court further concludes that due process requires the imposition of certain procedures to be invoked after five consecutive days of solitary confinement and after ten consecutive days of security confinement. These procedures will require : that the juvenile be given a hearing before an impartial tribunal, the exact composition of which the parties should seek to define in their negotiations, as hereinafter prescribed; that such tribunal file written findings within forty-eight hours following the date of the hearing with the executive director of the TYC; and that the executive director file forthwith copies of such findings with this court and all counsel until further order from this court. At' his hearing, the juvenile shall have the right to representation by an advocate of his choice (presumably his caseworker) and shall have the right to call witnesses and to cross-examine the witnesses testifying against him.

See generally

Nelson v. Heyne,

supra;

Inmates v. Affleck, 346 F.Supp. 1354 (D.R.I.1972); Lollis v. New York State Department of Social Services, 322 F.Supp. 473 (S.D.N.Y.1970), 328 F.Supp. 1115 (S.D.N.Y.1971).

The testimony of the expert witnesses was to the effect that a small portion of the juvenile population may require a secure setting. However, a decision initially to place or transfer a juvenile to such a secure setting must be in accordance with procedural due process.

See

Baxstrom v. Herold, 383 U.S. 107 , 86 S. Ct. 760 , 15 L.Ed.2d 620 (1966) (prisoner transferred to a mental hospital without judicial determination violates equal protection); Shone v. Maine, 406 F.2d 844 (1st Cir. 1969) (juvenile transferred to prison requires due process); People ex rel. Goldfinger v. Johnston, 53 Misc.2d 949 , 280 N.Y.S.2d 304 (Sup.Ct.1967) (juvenile transferred to “defective delinquent” institution requires hearing) ; Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970) (classification changes within prison require written record and reasons for contemplated change in status).

In its emergency interim relief order, this court provided that, before a juvenile could be assigned or transferred to the maximum security unit

16

(presently Mountain View State School for Boys), it would be necessary that the classification committee make a determination that the juvenile had in the past (either prior to or subsequent to commitment) committed acts that, if committed by an adult, would constitute certain serious offenses, which were enumerated by the court.

After consideration of the arguments contained in the briefs of counsel, the court is now persuaded that the commission of a particular offense does not necessarily imply that the offender should be subjected to confinement in a maximum security facility. Instead, the standard for determining whether a juvenile should be assigned to such a facility must be based on a finding that the juvenile is exceptionally dangerous; that is, that he will likely cause severe injury to himself or others unless dealt with carefully in a secure setting. The determination of this standard must not be entrusted to laymen; it is requisite that it be made by majority vote of a panel of well-qualified psychiatrists and psychologists.

17

Moreover, the Board must make its decision only after complete and painstaking

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psychological testing and psychiatric diagnosis, as well as a thorough review of the juvenile’s history. A finding of exceptional dangerousness will carry with it authorization for secure confinement and intensive treatment.

A determination that a juvenile is exceptionally dangerous may be made only after a hearing, and will be deemed to be invalid unless accompanied by written findings showing an adequate basis to justify the decision. The juvenile under consideration should have the right to be present and be represented at the hearing (but need not be present during the Board’s deliberations); have the right to ask any questions or make any statements that he wishes; have a reasonable opportunity to call witnesses and present other evidence in his own behalf, after hearing the evidence against himself; and be given a copy of the written findings and decision of the Board.

The procedures outlined above shall apply to all decisions regarding the placement of juveniles in a maximum security setting. However, upon initial placement in the custody of the TYC, a juvenile reasonably suspected of exceptionally dangerous propensities may be placed in the maximum security facility for a period of time not to exceed seven days, upon an express order from the Executive Director. At the conclusion of the seven-day period, the Board authorized to assign or transfer juveniles to maximum security must have rendered its decision in accordance with the foregoing procedures or the juvenile must be released for non-secure treatment.

VIII. ASSESSMENT AND PLACEMENT

The TYC operates two reception centers. The Statewide Reception Center for Girls, located at Brownwood, possesses a maximum capacity of 100 girls and is under administration of the General Superintendent of the Brownwood State Home and School for Girls. The Statewide Reception Center for Boys, located at Gatesville, has a capacity of 120 boys and is administered by personnel under the direction of the General Superintendent of the Gatesville State School for Boys. Girls remain at Brownwood for approximately two weeks. The primary purpose of the classification procedures at both reception centers is the assignment of students to the various training schools and the provision of certain diagnostic and social information about the child. Nevertheless, there are no written formal criteria for assigning youths to any particular institutions, including Mountain View, the maximum security facility for boys.

A.

Gatesville Reception Center for Boys

The Gatesville Reception Center handles about 1,700 boys per year, of whom about two-thirds are new commitments. The other one-third are reclassification cases (boys transferred from Gatesville to Mountain View) or parole revocations. The reception center staff consists of five caseworkers, two psychologists, one educational diagnostician, and three part-time psychiatrists. Both psychologists have a Master’s degree. One spends a little more than half his time testing boys over sixteen for vocational rehabilitation services, which are rendered by the Texas Vocational Rehabilitation Agency after the boys’ discharge from the institution. The education diagnostician has a Bachelor of Arts degree; three of the five caseworkers have Master’s degrees. Although it is often necessary to evaluate Mexican Nationals and Mexican American boys, no one in the Gatesville Reception Center speaks Spanish.

18

Approximately one-third of the new admissions are Black, but none of the staff, whether professional or non-professional, is Black.

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Placement decisions, which take only a few minutes, are made by a classification committee in weekly meetings. The committee consists of the Director of Admissions, the Director of the Reception Center, a clinical psychologist, a medical psychiatric social worker, a chaplain, a casework coordinator, and an academic superintendent. The committee may consider up to thirty-five cases in a single session, with discussion primarily centered on the nature of the particular boy’s offense. Age, sex, aggressiveness, educational level, and availability of a vacancy at a particular school are also determining criteria in placement. Aggressiveness is determined mainly on the basis of the boy’s past record of behavior or his size. The caseworker’s recommended placement is generally approved. Since the classification committee does not usually have the time to read the information in a boy's file before making a placement decision, and since the boy is not present during its deliberations, the committee relies on the oral presentation of the intake social worker who makes the placement recommendation.

In considering assignments to Mountain View, the maximum security facility, the committee reviews the juvenile’s past legal history, including arrests. The record received from the juvenile court, however, often does not show the disposition of arrests. Moreover, there are no formal written criteria regarding which boys should be sent to Mountain View. Serious offenders as well as runaways from Gatesville may be sent there. In the fiscal year ending August 31, 1972, thirty per cent of the boys admitted to Mountain View were reclassified students from Gatesville. Yet the evidence showed that neither members of the classification committee, nor the TYC Central Office staff who must approve any transfer to Mountain View, have any familiarity with the program at Mountain View.

The frequent turnover of personnel on the classification committee disrupts any continuity of its classification decisions. Thus, the psychologist who tests a particular boy may not be the one who participates in his placement' decision. If the social worker at the classification committee is not the same intake officer who interviewed the particular boy being placed, it is unlikely that anyone on the committee will have had any personal contact with him.

Examination by a psychologist or psychiatrist is not necessarily available to every boy entering the reception center. Moreover, the psychologist does not ordinarily make treatment recommendations for the boys examined, and makes no follow-up investigation or report as to the boys he does examine or test, to ascertain what kind of treatment they receive after placement. Even a boy under consideration for placement in Mountain View may not be seen by a psychiatrist. When the psychiatrist has recommended against placement of a particular boy in Mountain View, he does not ordinarily receive a report from the classification committee as to what happened to him. Although they are presumably otherwise qualified, the psychologists at the reception center have not had prior training in working with adolescents and do not perform any in-service training for the staff at the Gatesville school.

B.

Brownwood Reception Center for Girls

Brownwood Reception Center classifies girls into four categories: immature delinquent, neurotics, unsocialized delinquents, and subcultural delinquents. Although these categories are used in assigning girls to cottages and treatment programs at Brownwood, they are not used at Gainesville or Crockett. These classification categories, developed by Dr. Quay, have not yet been validated on a female population, but were developed and tested on an older male population at the Federal Youth Center at Morgantown, West Virginia. The Reception Center at Brownwood has one individual on its staff with a Master of Social Work (MSW) degree and three

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holding Bachelor of Arts degrees in psychology or social science. Its director also holds a MSW degree.

The final placement decision' for a girl is made at a meeting attended by the medical psychiatric caseworker, the girl’s caseworker, the academic educational-vocational counselor, the houseparent supervisor, the chaplain, a school teacher, and, sometimes, the psychologist. The girl under consideration is not present at the placement decision. Although a letter is sent to the girl’s family requesting any information that would be helpful in assessing her, the director of the center testified that he would prefer, as an alternative, to meet with each girl’s family to discuss her problems. Entering girls receive a medical and dental checkup as well as a psychiatric interview. The eleven subtests of the Weschler Intelligence Tests are used to diagnose learning disabilities. The Lorge-Thorndike Intelligence group-administered test is not used, because it is considered insufficiently individualized to provide an accurate assessment of the girls.

Girls may be assigned to Brownwood, Gainesville or Crockett. The younger girls are customarily assigned to Brown-wood. Eighty per cent of the girls assigned to Brownwood were committed for offenses such as runaway or truancy, offenses which are not within TYC jurisdiction after September 1, 1973, under the new Texas family law code.

19

The older and allegedly more “sophisticated” girls, on the other hand, are sent to Gainesville. Gainesville, in August 1973, had a population of about 120 girls, a reduction from a total of 220 present in the institution a year before. The testimony of expert witnesses indicated that these girls perceive themselves as the worst offenders. The 1972 Annual Report of the TYC indicates that 124 out of the 220 girls at Gaines-ville during that reporting period were committed for “disobedience;” eleven for “immorality;” thirty-six for drug and alcoholic offenses; thirty-five for theft; and ten for violent offenses.

The Brownwood Reception Center has made some adjustments for Mexican American girls. Two Mexican American, Spanish-speaking caseworkers are included on the staff. Although Mexican American girls are given a vocabulary test before taking other tests and their scores on the other tests are then adjusted by a bilingual index, expert witnesses testified that the bilingual index does not adequately compensate for cultural differences and is, therefore, inadequate for diagnosing these girls. Expert witnesses also testified that these tests are based on middle-class cultural assumptions that will not accurately test a Mexican American’s intelligence or achievement.

C.

Conclusions

TYC personnel and expert witnesses were in almost complete agreement with respect to two conclusions; First, since so few choices in placement are presently available to the classification committee at the Gatesville Reception Center, the classification procedure itself is practically meaningless. According to these witnesses, the present placement system accomplishes no more than would random placement on a space-available basis. Secondly, though the Brownwood classification procedures provide more opportunities for meaningful placement, these recommendations cannot be carried out at the receiving schools. At Crockett, for example, there is no attempt to write an individual treatment program for each student, and the recommendations from Brownwood are not considered a binding treatment plan. At Gainesville, attempts at written goals are made for each girl by her social worker; but expert witnesses were of the opinion that the plans are naive and over-simplified, by reason of the staff’s lack of sophistication and training.

On the basis of the evidence given by expert witnesses with respect

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to the assessment and placement of juveniles, it is concluded that a juvenile’s constitutional right to treatment requires the maintenance of the following minimal professional standards:

(1) Every child committed to a state agency by the juvenile court must have the benefit of an individual assessment, to serve as the basis for his treatment plan. The plan should include,

inter alia,

a family history, a developmental history, a physical examination, psychological testing, a psychiatric interview, community evaluation, and a language and education analysis evaluation.

(2) Social work staff involved in the assessment must be trained at the Master’s degree level in social welfare or closely related fields.

(3) Social work staff must not have caseloads exceeding fifteen cases per week.

(4) Psychologists with Master’s degrees and properly trained in testing procedures are adequate, but only if a Doctoral-level psychologist is available to supervise their work. A psychiatrist, however, must be available for interviews.

(5) For adequate classification, there must be daily contact between caseworker and juvenile, so as to evaluate the juvenile’s amenability to guidance and counseling.

(6) The Weschler individualized intelligence quotient test, rather than the group Lorge-Thorndike IQ test, must be utilized.

(7) The Leiter and Weschler tests, which are standardized for Blacks and Mexican Americans and are calculated to better alleviate the discrimination factor, must be utilized.

(8) Adequate psychological testing should take approximately fifteen hours and require the services of one psychologist for every three boys classified per week.

IX. ACADEMIC EDUCATION

A.

Findings

Although each TYC institution has been accorded the status of an independent school district by the Texas Education Agency, and each has been accredited by that agency, the quality of TYC education, particularly at Gatesville and Gainesville, compares unfavorably with the quality of general public school education in Texas, and reflects a dramatic lack of awareness of the special and varied needs of TYC students. Expert witnesses opined that only four and six-tenths per cent of all juveniles incarcerated by the TYC are at their proper educational grade level, and the average reading level is approximately five years below the norm.

All school facilities are operated eleven months of the year, except Mountain View, which is operated on a twelvemonth basis. Students at Gatesville are placed in academic grade assignments according to the results of their achievement tests. Grades are labeled one through twelve, and a student is often assigned to a grade lower than the one at which he may have been functioning in his home community. At Brown-wood, in contrast, students below the ninth grade in achievement level are placed in non-graded classes, according to age, and receive individual instruction.

No teacher at Gatesville or Gainesville is certified by the Texas Education Agency as qualified in the field of special education. Mountain View and Crockett each has one teacher certified for special education, and Brownwood has two. A statistical survey indicates, however, that a significant number of juveniles are in need of some form of special education. The following numbers of children at TYC institutions were diagnosed as being seriously emotionally disturbed as of May 1, 1973:

Giddings 18

Gatesville 117

Mountain View 158

Brownwood 13

Crockett 35

Gainesville 31

The category defined as “seriously emotionally disturbed” excludes sociopathic and psychopathic children. In addition,

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as of May 1, 1973, the following numbers of children in TYC institutions have intelligence quotients recorded as lower than seventy:

Brownwood 17

Crockett 38

Gainesville 11

Giddings 5

Gatesville 102

Mountain View 36

The Language Training Center at Gatesville, for students with learning disabilities, currently serves those students whose diagnostic tests indicate this program to be appropriate for their needs; however, only students with intelligence quotients over ninety and who test two years below their grade level may participate in the program. Moreover, tests are not routinely given for minimal brain dysfunction or dyslexia at the classification center.

No bilingual programs for Spanish-speaking youths exist in any of the TYC institutions. Two applications for federal assistance to initiate such a program have been denied, and no state funds have been appropriated to institute the program. Tests of Spanish-speaking boys for intelligence quotients and reading achievement are not conducted in Spanish. At Gatesville, eighty-eight of a total of 106 teachers are Anglo. Questionably, as many as ten Gatesville teachers speak Spanish, although ’ only two are Mexican Americans. Of the more than 1,000 students at Gatesville, approximately one-third are Anglo, over one-third are Black, and the remainder are Mexican American. In April 1973, there were thirty Mexican Nationals at Gatesville, awaiting return to Mexico by immigration authorities.

The educational testing procedures are generally inadequate, and since decisions regarding placement of students in educational programs at Gatesville are made primarily on the basis of the test scores, this is a significant deficiency. Irre- ' spective of the reason, any Gatesville boy who cannot read is placed in the same remedial reading class. Thus, Spanish-speaking boys, retarded children, and those who are unable to read because of emotional causes or past truancy are placed in the same class. As mentioned earlier, these classes are not taught by persons certified as qualified in the field of special education. Moreover, tests for Spanish-speaking boys who may have learning disabilities —and who thus may be eligible for the class for dyslexic children — are not given in Spanish.

B.

Conclusions

On the basis of the evidence produced by expert witnesses with respect to academic education testing, it is concluded that a juvenile’s right to treatment requires the maintenance of the following minimal professional standards :

1) The Weschler IQ Test, rather than the Lorge-Thorndike IQ Test, must be used for testing generally.

2) Neither the Lorge-Thorndike IQ Test nor the Gray-Votow-Rogers Achievement Test, which is inappropriate for testing Mexican Americans and Blacks on many subjects, should be used for testing for dyslexia.

Using as a foundation the evidence of expert witnesses, it is concluded that, for the purpose of detecting mental retardation in juveniles and providing them with the proper special education,

20

the juvenile’s right to treatment requires the maintenance of the following minimal professional standards:

1) Normal IQ and achievement tests (both verbal and non-verbal) must be utilized, with special emphasis on tests

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which are appropriate for the student’s background.

21

2) Examiners who are familiar with the background of the student and of his culture and language must be a part of the staff.

3) Information must be obtained about the student’s family background and emotional status, as well as observations relating to the student’s behavior.

Again postulated upon the testimony of expert witnesses, it is the conclusion of this court that, as to special education teachers, a juvenile’s right to treatment requires the maintenance of the following minimal professional standards:

1) Special education teachers, certified by the state as qualified to teach either emotionally disturbed, mentally retarded, or minimally brain damaged children, must be utilized to treat children in these categories.

2) In-service training by an outside consultant must be provided for special education teachers at least once a week. (Such consultants are available from the Texas Education Agency.)

3) A minimal teacher-student ratio for TYC students in the categories above specified is one special education teacher for each eight of such students, plus supporting personnel (such as educational diagnosticians and the like).

22

As to other supporting personnel, this court adopts the opinion of expert witnesses that a juvenile’s right to treatment requires the maintenance of the following minimal professional standards:

1) One educational diagnostician is essential for each 150-200 TYC students.

2) Assessment by language pathologists, sometimes referred to as speech therapists, is an essential complement to any other professional assessments, and such an assessment is necessary to diagnose the underlying learning difficulty that may be initially identified by a psychologist or teacher.

On the basis of the evidence of expert witnesses, this court concludes that, since the state removes Mexican American children from their family, friends, ethnic background and culture, transporting them in most cases hundreds of miles to a predominantly Anglo rural setting, these juveniles’ right to treatment requires that the state establish a program for bilingual education. The parties are directed to propose such a program in general accordance with the provisions set out in United States v. Texas, 342 F.Supp. 24 (E.D.Tex.1971), aff’d 466 F.2d 518 (5th Cir. 1972),

discussed in

Project Report: DeJure Segregation of Chícanos in Texas Schools, 7

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Harv.Civ.Rights — Civ.Lib.Rev. 307, 376-91 (1972).

X. VOCATIONAL EDUCATION

A.

Findings

A vocational program is available to certain TYC inmates, although the process of selecting those eligible for the program is not clear. The evidence admitted at the trial of this civil action primarily concerned the Gatesville program. Some boys are enrolled, at least in part, on the basis of an expressed interest. Nevertheless, there are no vocational counselors available at Gatesville and no established testing procedures to determine which boys should be enrolled. The vocational program consists of educational courses and so-called “work experience.” Boys are assigned to the educational courses on a space-available basis, with the overflow reporting for “work experience.”

Work experience programs at Gates-ville consist of such essentially institution-maintaining endeavors as work in the laundry, maintenance division, warehouse, food service division, dormitory clothing room, and other areas. State funds have not been appropriated by the legislature for the payment for work performed in vocational shops maintaining institutional equipment, state-owned property, or in-service industries. Thus, Gatesville vocational students do not get paid for such work. Accordingly, the work experience program (which has been in existence at Gatesville for at least twenty-three years) permits the institution to employ fewer people to perform institution-maintaining work than would otherwise be required. Work experience supervisors at Gatesville are not accredited teachers, and the students receive no school credit for their work in the work experience programs.

Some attempt is made to coordinate the vocational education and the academic education courses at Gatesville; but the work experience program is not coordinated with academic education. Students are assigned to a full day’s academic education program or to a half-day academic program, with the other half-day devoted to a vocational or work experience assignment. A full day’s academic program is pursued by the younger students assigned to the Valley, Riverside, and Hackberry schools. A half-day academic and half-day vocational or work experience program is pursued by older students at the Hilltop, Live Oak, and Terrace schools. Students at the Sycamore school have a choice of following a full day’s high school program or a half-day academic program, the other half of the day being devoted to a vocational course.

The work experience program altogether fails to provide any meaningful or realistic vocational training. The vocational education courses, although potentially useful, are not coordinated with a practical and realistic attempt at job placement outside the Gatesville institution. Since no follow-up study has been accomplished to determine whether Gatesville students are able to procure jobs in fields related to their vocational education training, the TYC has no way of evaluating the effectiveness of the vocational education programs nor of assuring that students leave the TYC schools with marketable skills. It is clear that there has been no employer or union input in fashioning the vocational education programs, for they have not been geared to meet actual employer needs or union'requirements. There is, moreover, no ongoing contact by employers with the vocational education programs of the TYC schools, since the schools are too far removed from the major employers in Texas to make these contacts convenient.

Although one vocational rehabilitation counselor is present at Gatesville, he perceives his job as merely recommending students for vocational rehabilitation after their release from the TYC, and not as a part of the entire treatment program. Of the more than 1,000 Gatesville students, only about 130 are on the caseload of the vocational rehabilitation specialist. The vast majority of

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the students are eligible for the services of the vocational rehabilitation specialist ; but it is apparent that the one-man staff cannot adequately handle the caseload. It also appears that no systematic contact with the vocational education instructors is maintained by the vocational rehabilitation specialist, although the latter is responsible for evaluating the student’s potential for success in vocational rehabilitation.

B.

Conclusions

Giving weight to the evidence supplied by expert witnesses with respect to vocational education, it is concluded that a juvenile’s right to treatment requires the maintenance of the following minimal professional standards :

1. Each student should be provided with an employability plan, based on extensive counseling regarding career options.

2. Adequate procedures to assure placement with prospective employers should be maintained by the TYC.

3. Adequate on-the-job training, obtained through work release programs, should be provided.

4. Adequate support services, such as remedial reading and mathematics, should be provided.

5. Appropriate limitations must be placed on the so-called “work experience” consisting of essentially institution-maintaining work, so as to prevent such work from dominating the daily activities of students.

XI. INSTITUTIONAL LIFE

A.

Introduction

A great deal of the evidence heard by the court concerning the necessary elements of rehabilitation related to matters that might seem somewhat insignificant on first consideration — meals, recreation, and other aspects of everyday life. Nevertheless, the testimony of expert witnesses was substantially in agreement that a panoply of these seemingly unimportant daily experiences will have a critical effect — for good or for ill —on the rehabilitation of a delinquent adolescent. There was an impressive unanimity of opinion among the experts who testified, whether for plaintiffs,

amici,

or defendants, concerning many of these matters. Therefore, the findings and conclusions that follow, although they may appear dogmatic, merely accord proper weight to the heavy preponderance of the evidence given by the expert witnesses at the trial.

B.

Minimal Elements of a Treatment Program

A treatment program must aid the youth in achieving “the tasks of adolescence” that precede his emergence as an independent adult. These tasks include establishing sexual identity, developing intellectual and occupational skills, achieving independence from parental authority, developing a capacity for genuinely intimate relationships and, finally, evolving a moral code to govern future actions. Treatment of an adolescent who has tangled with the law or had difficulties with his family or school authorities must ensure that the juvenile receives the ingredients that a normal adolescent needs to grow and develop a healthy mind and body. Because of his often deprived background, the delinquent needs a more concentrated dose of these normal factors, together with such intensive or particularized help as special education, therapy, or physical rehabilitation that he may need. Unless normal needs are met, no special therapy modality will work, and the treatment program cannot be deemed an adequate one.

The essential ingredients of normality for a youth are a sense of self-respect, warm and understanding adults, a chance to participate in decisions that affect him, adequate diet and recreation, opportunity for adventure and challenge, and legitimate outlets for tension, anger and anxiety. In addition, the environment must promote the juvenile’s feeling of security from fear of physical and

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psychological abuse, and provide well-defined limits within which the juvenile knows his behavior is acceptable. The juvenile must also understand what is expected from him and what is hoped for him.

The function of a treatment program is to enable the juvenile to see himself as a significant person and as one capable of living and succeeding in society. Rehabilitation, therefore, should be a process of redirecting the juvenile’s behavior, shoring up his weaknesses, stressing the positive in his behavior, and eliminating those aspects of it considered unacceptable in society. The expert witnesses concluded that without the minimum elements discussed above, no treatment program can expect to be successful in its efforts to rehabilitate.

C.

Placement Inside Institution

In the opinion of the experts who testified, some one person on the staff of an institution should be assigned to each juvenile and be held accountable for insuring that the child’s treatment plan is followed. That person (who ordinarily would be a caseworker) must be familiar with the juvenile’s background and should meet with the child’s family. It must be his responsibility to explain and interpret the treatment plan to the staff who deal with the juvenile, as well as to the juvenile and his family. No one person is assigned primary responsibility for implementing a juvenile’s treatment plan at Gainesville, Crockett, Gatesville, or Mountain View.

A primary step in implementing such a treatment plan is placing a juvenile in an appropriate cottage or dormitory with a compatible staff, since that is where the juvenile will spend the majority of his or her time. Caseworkers and cottage parents or dormitory staff should be “matched” to juveniles. Yet the evidence established that the backgrounds of the girls or their compatibility with social workers or houseparents attached to their cottages are not considered at Gainesville or Crockett, and. the girls are given no choice as to cottage placement. Boys in the TYC are not consulted about the school or dormitory to which they desire to be assigned. Their requests for supervision by certain caseworkers are not honored, and they are automatically assigned to- the caseworker attached to the dormitory in which they are placed.

D.

Team Treatment Approach

Plaintiffs’,

amici’s,

and defendants’ expert witnesses agreed that every staff member of a treatment facility or program must be considered a treatment agent and must cooperate with other staff members who deal with a particular child, so as to present a unified team approach toward his or her rehabilitation. In their collective opinion, it is crucial for a juvenile to feel that he or she is surrounded by a group of people who communicate well with one another and who cooperate in seeking to solve his problems. The “treatment team” for a particular child should include his social worker, his houseparent or group counselor, his teachers, and professional medical and therapeutic personnel. The team should, moreover, have regularly scheduled meetings about his case. Expert witnesses also agreed' that caseworkers should be intimately involved in discipline decisions, and that discipline must be a part of the unified treatment approach toward a juvenile.

In the TYC institutions (possibly excepting Brownwood and Giddirigs), the casework, teaching, medical, and correctional staff operate under separate lines of supervisory authority. All staff members are under the ultimate supervision of the superintendent. Houseparents at Crockett do not generally review the social files of the girls in their cottages. They are charged with the responsibility of obtaining relevant information about a particular girl from the girl’s social worker. A houseparent is generally forewarned of a girl considered a “serious offender.” Houseparents at Gainesville usually know only the name, age, and religion of the girls in their cottages, unless a particular girl is

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considered suicidal or violent. Although they are privileged to consult the girls’ social files, they seldom do so. As of late fall, 1972, houseparents at both Gainesville and Crockett were not even aware they could consult a student’s file. No ongoing collaboration between caseworkers and houseparents occurs at either Gainesville or Crockett, nor is there participation in joint training sessions. Caseworkers at Gainesville began to discuss with houseparents the “goals” of individual girls at some time in the fall of 1972, although these talks usually take place only after the girl has been in the cottage for about three months.

Teachers at Gainesville do not ordinarily see the reports, prepared at Brownwood, concerning the diagnostic procedures accomplished and conclusions reached as to the girls they teach. The Gainesville school vice-principal decides whether teachers need to know any of this information, e.

g.,

an indication that a girl might be suicidal or a potential runaway. Teachers at Gainesville have no regularly scheduled meetings with other professional staff about particular girls. The Chief of Casework Services at Gainesville testified that although team treatment is desirable, there is no formal training at Gaines-ville to achieve the goals of integrated treatment, and that there are no regularly scheduled meetings between social workers, houseparents, and teachers, except a bi-annual conference to discuss individual girls. At Brownwood, houseparents and caseworkers in particular cottages meet weekly with the girls on general problems, but teachers do not participate in these sessions. A social worker at Brownwood does discuss the contents of a girl’s file with the houseparent when the girl is first placed in a cottage.

At Gatesville, correctional officers do not meet with caseworkers nor do they have any verbal or written interchange of ideas as to boys or their treatment goals. The only interaction between correctional officers and caseworkers occurs at formal Adjustment Committee meetings. Caseworkers at Mountain View have no coordinating or supervisory role with respect to correctional officers, and the correctional officers are not encouraged to look at boys’ files. In fact, a former correctional officer at Mountain View testified that the correctional officers are instructed

not

to discuss boys with caseworkers, and that he was personally reprimanded by his supervisor for doing so. It is worthy of note that caseworkers at Mountain View are not empowered to stop a correctional officer from placing a boy in the STC. If a caseworker feels that a boy is being treated unfairly by his correctional officer, he reports it to the casework supervisor rather than consulting with the correctional officer involved, since the correctional officers resent interference from the casework staff. Expert witnesses condemned discipline decisions made at Gatesville on the basis that they are made in an atmosphere devoid of any understanding of the motivation of boys to commit anti-social acts or the kind of handling best suited to individual boys. As a result, discipline is often irrational, because it is not an element of a cohesive treatment strategy.

E.

Dormitories at Gatesville and Mountain View

The testimony of expert witnesses was unanimous that adolescents need either single rooms or small rooms shared between two to four children, in order to have a healthy amount of privacy and solitude. . Yet boys at Giddings, Gates-ville, and Mountain View live in open dormitories, housing thirty to forty boys in one large room, with cots laid end to end. As already detailed, a “cage man” sits inside a wire mesh enclosure watching the boys, but he is forbidden to leave his enclosure until his replacement arrives the next morning, unless, in the event of an emergency, he first calls for assistance. The cage arrangement does not provide the feeling of a secure physical environment for boys, because they

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know that the cage man cannot timely remove or protect them, if an emergency occurs.

23

The cage arrangement provides the most intimidating and frightening environment possible for sleeping boys— they are subject to maximum surveillance and loss of privacy, yet they are almost entirely unprotected from assaults. Especially at an institution like Mountain View, which houses the most hard-core delinquent population, such an arrangement should be recognized as entirely unacceptable for treatment purposes.

The dormitories at Gatesville are crowded, and the lighting so poor that it is nearly impossible to do academic homework or read. Nevertheless, the boys spend most of their waking hours in the dormitories when they are not at school. Certain conditions vary between dormitories; this is not because of physical differences or diverse treatment emphases, but primarily according to the whims and attitudes of the various correctional officers that staff the dormitories. Indeed, rules and customs in a single dormitory may vary from day to day, depending upon which correctional officer is on duty and what kinds of behavior he permits or prohibits. All of the Gatesville dormitories have one characteristic : they are cold, impersonal, and insecure settings, entirely unconducive to the rehabilitation of delinquent adolescents. It is these dormitories that serve as the only home their residents have during their stays at Gatesville.

F.

Regimentation in the Institution

The most striking characteristic of daily life in most TYC institutions is overwhelming monotony and regimentation. At Gainesville the rooms are like cells; each is furnished only with a bed, a dresser, and a small cubicle for clothes. The doors have locks. Safety chains are on the outside, which permits them the doors to be opened about four inches when not latched. The light switches are outside in the corridor. Gainesville girls may leave their rooms at night only with the permission of their houseparent. They may not use the restroom at night, but must relieve themselves in chamber pots.

Some girls at Crockett have private rooms similar to those at Gainesville. In both institutions, girls with separate rooms are locked or latched in their rooms a great part of the time before and after school and at night. During the time they are locked in, they must call out if they are sick or in need of assistance. Whether a girl is latched into her room often depends solely on the convenience of her housemother. At Brownwood, girls have keys to their own rooms, but can be locked in their rooms from the outside. Girls who go from the relatively open physical setting at Brownwood to the latched doors at Crockett and Gainesville are not made aware of any reason for their being subjected to more rigorous confinement, with the result that most conclude that their behavior is only marginally related to the conditions of their confinement.

The justification given by the Gaines-ville staff psychologist for latching girls’ doors was the impossibility of making individual decisions about who should or should not be latched in. He conceded that not all girls require such close confinement; his estimate was that twenty to fifty percent of the girls need to be latched in. The superintendent of Crockett stated that latching would be altogether unnecessary, if he had a larger staff.

Psychologists gave evidence that an across-the-board policy of locking girls in their rooms at specified times of the day is counter-rehabilitative; that it leaves the girls with the feeling that they are evil and untrustworthy, and in

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capable of planning and directing their own activities..

Meals are regimented at Crockett and Gainesville. Girls are ushered into the dining room to the calls of “East side,” “West side,” “Let ’em out,” “Put ’em up.” The dishes are plastic. Meals are eaten quickly, and it is obligatory that conversations be quiet. Even the cook can order silence. At the end of the meal, the staff members demand that the girls sit with their hands in their laps while the silver is collected and counted.

Cottages contain a day room where the girds eat and seek recreation at specified times, usually for a two-hour period each evening and on weekends. Girls cannot leave their rooms except during specified periods for dining, recreation, or school, and cannot visit in each other’s rooms. A certain amount of time each day is designated as “unsupervised recreation,” but various restrictions imposed by institutional rules and houseparents make television, board games, and smoking the only real recreation possibilities. Dancing and other forms of physical expression are discouraged. In summary, cottage life makes the girls dependent on others for direction and discourages them from taking any initiative, structuring their own time, acting independently, or exercising imagination. There is, additionally, no opportunity for risk-taking or adventure in the Gainesville or Crockett programs; anything that deviates from strict rules is punished by a demerit or a “pink slip.” This is so, despite the agreement of expert witnesses that opportunities for variety and challenge are essential to the growth of healthy adolescents.

Life at the boys’ institutions is even more regimented than at the girls’ school. At Gatesville, it is mandatory that boys arise at a certain time; they then sit idly until breakfast. Often, some fall asleep while lying on tables and waiting for the signal to go to breakfast. They walk in loose formation to the dining room and school. Some correctional officers require silence on these walks.

Boys spend time in the dormitories lined up in chairs watching television programs. On one occasion, an expert witness observed nearly an entire dormitory of boys sitting torpidly before a broken television set. Several witnesses described the appearance and climate of the Gatesville dormitories as a “prison,” — a “psychologically destructive brutal setting.” Mountain View was graphically described as an “evil place,” and compared unfavorably with the notorious Angola Prison in Louisiana.

G.

Institutional Indignities

According to expert witnesses, the program at Gainesville violates the girls’ self-respect in many ways. The chamber pots in the girls’ bedrooms are humiliating to them and violate such self-respect as they have managed to acquire. Girls are not allowed to walk around outside their rooms without permission. When the need arises, they are required to call, “Mama, can I go to the toilet?” No doors are placed on the toilets at Gainesville. Charts showing the menstrual period of each girl are posted in the housemother’s office at Gainesville and on the cottage door at Crockett. Girls are subjected to “strip searches” of their bodies prior to family visits, and their rooms are torn up in unannounced searches.

There was uncontradicted testimony from one girl that she was called a “nigger” or “dog” by her houseparent at Gainesville every day, and heard the school principal call other girls by similar names. This girl also alleged that she was called “nigger” by her teacher in front of the whole class. When the girl reported the incident to the school principal, her humiliation was compounded when he told her that the teachers could call her whatever they wanted. It is also uncontradicted in the evidence that Black girls at Gainesville are forbidden to sit together at a meal table on penalty of a discipline report.

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In one incident, certain girls at Gainesville were questioned and harassed by staff members for eight hours about alleged marijuana possession. One girl signed a false statement about the incident, in,order to stop the ordeal. Four requests to see the superintendent to complain about this treatment got no response. Again, this evidence was not contradicted.

Boys at Gatesville are deprived of privacy. They may go to the toilet only at certain times. If they fail to make their beds in a prescribed way, they are assessed demerits; if they do not get up fast enough in the morning, their beds are dumped over them. On occasion, a “dorm man” will shave a boy with a pocketknife, if he is dissatisfied with the boy’s appearance. Boys at Gatesville may have access to their books or personal possessions only at certain hours and then with permission; their possessions are often rummaged through by correctional officers without their knowledge or consent.

Expert witnesses testified that the results of continual violation of a juvenile’s dignity, privacy, pride, and possessions is inevitably the exacerbation of delinquency rather than its cure, for such treatment teaches the juveniles that they are considered to be less than full human beings, and that their personal property is unworthy of respect. Worse, they are thereby tutored in the abuse of power over those weaker or gentler than themselves.

H.

Diets and Mealtime

The expert witnesses attested that providing for an adolescent’s normal physical development is an important part of his or her needs. Such provisions must, of course, include adequate nourishment. In the case of adolescents, who go through spurts of rapid growth, a variety of nutritious foods must be available for a minimally adequate food program. It is also important that food be properly prepared and appealing.

Menus at TYC institutions are not planned by dieticians; food service managers perform this duty along with other duties. Students work in the kitchen, preparing and cooking the food, although they have not received any special health certificate for that purpose. Diets at Gainesville were described by a visitor as starchy and tasteless. Because girls get little outdoor exercise, they often gain excess weight on the starch-heavy diet. There are no special diets for pregnant girls at Gainesville or Crockett. Girls complain that they often find bugs or weevils in their food.

At Gatesville, it was the perception of many boys that the food was contaminated by other boys having urinated, spit, or defecated in it. An expert witness explained that regardless of whether such perceptions are accurate, they cause the boys to feel insecure and physically threatened, and many of them are discouraged from eating. It was the opinion of this witness that the situation is inconsistent with the feeling of security that a minimally therapeutic environment must provide.

Meals are eaten in all TYC institutions, possibly excluding Brownwood and Giddings, in an unpleasant atmosphere of haste, regimentation, and tension. Correctional officers allot boys at Mountain View ten to twelve minutes in which to clean their plates, destroying any pleasure the inmates might otherwise take in mealtime. More important, psychologists maintained that these practices reinforce the juveniles’ disrespect for themselves and for each other, as well as depriving them of the nourishment that is essential to their physical and psychological growth.

I.

Recreation: Girls’ Institutions

It was affirmed by the expert witnesses that adolescents have special physical needs with respect to freedom of movement. At Gainesville, however, there is little opportunity for outdoor exercise. Almost all time at Gainesville outside of school and household chores was “free” unsupervised time. As already set out, it is spent primarily in watching television and smoking. At

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any one time, only small groups can participate in organized activities such as basketball or skating under the direction of a recreational supervisor.

An observer reported that during one weekend, when the weather was beautiful, the only time Gainesville girls left their cottages was to walk to the cafeterias for lunch and to church on Sunday. The afternoons were spent in the usual manner — watching television and smoking in the day room. The housemother declared that she did not have the authority to take the girls outside. A few girls in upper privilege level groups were permitted to go skating in the gymnasium for an hour. When indoor activities are organized at Gainesville, they are extremely puerile in nature, such as “poor kitty.”

24

On weekends, the only variation in the routine is cleaning the cottage on Saturday morning, and going into the day room from two to four o’clock in the afternoon. About twice a month, the girls in a particular cottage are permitted to go outdoors for two hours on Saturday.

Brownwood, by way of contrast, has a four-week intensive camping program that includes group therapy and educational travel for groups of three counselors and ten children. Fifty girls will participate in this program during 1974. The girls are allowed to participate in the planning stages as well as the actual trip. The director of the camping program stated that this kind of active therapy was also effective with older and more sophisticated girls.

J.

Recreation: Boys’ Institutions

It is essential, the expert witnesses agreed, for adolescent boys to have a legitimate outlet for aggression and hostility. Competitive athletics provide one such outlet. When such normal channels of expression are absent, anger is apt to express itself in fighting and other forms of aggression. Unexpressed hostility may also cause boys to turn inward and contribute to depression or even suicidal tendencies. A repressive institution that discourages spontaneous physical activity by its students promotes unacceptable behavior. The irritations and physical confrontations intrinsic to the Gatesville and Mountain View dormitories are one result of the repressive nature of these institutions.

During the recreation periods at Gatesville — after school and in the evening when the boys are in their dormitories — the activities in which they are permitted to engage vary from correctional officer to correctional officer, depending upon the personal predilections of the officers, rather than upon the needs, interests and desires of the boys. For example, some of the correctional officers at Gatesville engage in outdoor sports with the boys and others will not.

The recreation program at Mountain View is also deficient. No adequate program exists for individual recreation, such as gymnastics, for those boys who are not proficient at team sports. Forms of recreation like movies, canteen privileges, and use of the gymnasium are very limited at Mountain View, except for the “office boys,” who are permitted special privileges.

K.

Loss of Identity

The expert witnesses gave evidence that an adolescent must have a sense of identity — “the reflection of a man’s own worthiness from other men” [Emerson]. Many delinquents, the expert witnesses testified, have a distorted sense of identity; they feel that they are bad — the outcasts and rejects of the community. The acquisition of a positive self-image is thus one of the primary tasks of adolescence. Since delinquents often have experienced coldness and rejection, a positive concept of a juvenile’s self grows best in an atmosphere of warmth and regard. It follows that any practice

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that diminishes self-respect is counter-therapeutic. Many of the customs at TYC institutions, as will be hereafter shown, are well calculated to diminish or destroy an adolescent’s nascent self-concept and to hinder his personal search for identity.

Boys at Gatesville are allowed to wear their personal clothing at only a few of the seven subschools. Most are required to wear identical state-issued garments. It is obligatory that all of their personal possessions be kept in a box in the clothing room; the boys may have access to them only with permission. Only a Bible, and sometimes a radio, may be kept near their bunks. Boys are often referred to by their bunk number, and very seldom are they known by their first names. If one works in the kitchen, he is referred to, for example, as “big sink boy.” The testimony of expert witnesses was to the effect that referring to a child in an impersonal manner is demoralizing and anti-rehabilitative, and, in effect, tells the boy that he is unworthy of having a separate personal identity.

Girls at Gainesville have been required to conform to a dress code that enforces the standards of the small rural community in which the school is located. In one dormitory at Gainesville, the only mirror (except for some belonging to girls who brought their own) is a small reflector made of metal that casts back a distorted image of the viewer. Black girls at Gainesville and Crockett are sometimes not permitted to wear their hair in certain styles, such as “Afros” and pom-poms. Thus, the girls’ normal concerns with their appearance and urges to experiment with different styles of dress and hairdo are thwarted and discouraged. The girls at Brown-wood, on the other hand, are encouraged to create their own dress code with the help of the staff.

L.

Lack of Opportunities for Socialization

None of the TYC institutions is coeducational. The students have rare contacts with their peers of the opposite sex, despite their typically lengthy periods of incarceration. Of the many students who testified at the trial, only one mentioned having ever participated in a coeducational activity, and he did so only the one time. At Crockett, the staff reported that the local community is too hostile to invite local boys into the insti-. tution for coeducational activities. At Crockett and Gainesville, male friends' are rarely, if ever, allowed to visit girls.

It was the opinion of expert witnesses called by both plaintiffs and defendants that frequent and regular contact with members of the opposite sex is an absolutely necessary condition for normal healthy adolescent growth. The results of the absence of coeducational opportunities are serious; the juvenile does not learn to function in a heterosexual environment, and he or she is pushed into the expression of sexual drives by behavior such as homosexuality or rebellion.

At Gatesville and Mountain View, some boys have been dosed with psychotropic medications to suppress their sexual urges, which found no outlet in their environment. Any sexual experimentation, such as masturbation or exhibitionism (which the expert witnesses stated to be normal temporary adolescent behavior) is punished by the Gatesville staff as a manifestation of homosexuality. Yet the staff has apparently been unable to prevent serious exploitation of small or weak boys by aggressive, larger ones. The handling of true consensual homosexual contacts is also naive — the boy is told to “shape up,” but allowed no counseling or opportunity to discuss the conflicting feelings and guilt that an incident may have aroused in him. No TYC institution offered any form of sex education or counseling.

As already mentioned, the staff at Mountain View, although untrained in any aspect of adolescent sexuality, was, until the entry of the emergency order, permitted to single out certain boys for placement in the “punk dorms” — two

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dormitories, segregated by race, which housed not only active aggressive homosexuals, but also small or weak boys and boys with confused sexual identities. No expert witness even attempted to offer an excuse for this appalling practice, which was universally condemned by the experts.

In the girls’ institutions, the staff is often so fearful about the possibility of homosexuality that it discourages any expression of affection or friendship between individual girls. Actions such as holding another girl’s hand, borrowing her clothes, combing her hair, or sitting on her bed are punished. But expert witnesses stated that such gestures are almost the only way girls have to express feelings of attachment for others of their own age, confined as they are to the company of their own sex. Moreover, the experts were of the opinion that the staff fear of homosexuality makes it attractive as a form of rebellion ; consequently, an “underground culture” with a special jargon and ritual has arisen at the girls’ schools. The experts concluded that these phenomena are not indicative of true homosexuality, but are rather of the results of isolation and staff emphasis on abnormal behavior.

The expert witnesses, both plaintiffs’ and defendants’, agreed that coeducational institutions are vastly superior to sex-segregated ones in their rehabilitative possibilities. If coeducation is impossible, frequent and regular contacts between the sexes are an absolute necessity. An environment that makes no provision for coeducational activities cannot possibly satisfy the social and emotional needs of adolescents. The National Advisory Commission on Correctional Standards and Goals calls for conversion of all juvenile institutions to coeducational facilities, and expert witnesses testified that coeducation has become accepted as a norm for juvenile residential schools throughout the country.

M.

Conclusions

The testimony of expert witnesses leaves the court without a doubt that the milieu in which a juvenile lives is crucial to the rehabilitative process. No matter how well intentioned and professional a juvenile’s treatment plan, it will be rendered worthless by an accumulation of daily indignities, discomforts, and harassments, such as were documented at the trial. Moreover, many of the practices described at trial force juveniles confined by the TYC to exist in an environment that is exceedingly deprived — psychologically, emotionally, and physically. Such senseless and arbitrary deprivations violate the juveniles’ right to be confined under the least restrictive circumstances consistent with their rehabilitation.

See

Covington v. Harris, 136 U.S.App.D.C. 35 , 419 F.2d 617 (1969); Lake v. Cameron, 124 U.S. App.D.C. 264, 364 F.2d 657 (1966). It is concluded that juveniles under the authority of the Texas Youth Council have a constitutional and statutory right to the following minimum elements of an adequate professional treatment plan:

1. Adequate case work services by an individual trained and experienced in the treatment of adolescents.

2. A physical plant designed to maximize the child’s security, privacy, and dignity.

3. Freedom from unnecessary confinement in close quarters or restriction of legitimate activities.

4. Opportunity for adequate recreation and exercise and constructive and entertaining leisure time activities.

5. Freedom from unnecessary or arbitrary invasions of privacy.

6. An adequate, well-prepared, and well-served diet, supervised by a licensed dietician.

7. Opportunity for free communication with persons outside the institution by mail and telephone.

8. A coeducational living environment, except in the case of very small

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facilities for one sex only, which must provide frequent and regular contacts with members of the opposite sex in a variety of settings.

9. The liberty to exercise freedom of choice in areas such as dress, hairstyle, choice of friends, and other personal matters.

10. An environment that permits the juvenile to express — either verbally or non-verbally — the emotions, such as anger, affection or unhappiness, that he may feel, unless the expression is harmful or destructive.

At this point, the court does not attempt to delimit more specifically the boundaries of the above rights. Such an attempt would be fruitless, since much must depend upon the nature of the child’s living environment. A rule of conduct that may be entirely laudable in a group home for six children may be completely inappropriate in an institution for thirty; practices may be justified for an intensive care facility that are unacceptable in a halfway house.

Accordingly, the parties are directed to confer with the object of agreeing upon a detailed plan for the implementation of the above-defined rights of juveniles throughout the facilities of the Texas Youth Council.

XII. MEDICAL AND PSYCHIATRIC CARE

A.

Medical Care

One of the important basic services that any acceptable residential facility must provide is adequate medical care. A medical expert testified that, at a minimum, one nurse should be on duty twenty-four hours a day, for each one hundred students in a residential institution, and that one physician per one hundred students should be on duty every day and on call at other times. Moreover, physicians, dentists, nurses and other medical personnel at institutions for adolescents should be specially trained in adolescent medicine.

The reality of medical care at TYC institutions is quite different from this standard. The Crockett nursing staff consists of one registered nurse, one licensed vocational (practical) nurse, and one attendant. A physician visits the institution only once each week and is on call at other times.

At Gainesville, a registered nurse is on duty each day during the week; at night and on weekends, only licensed vocational nurses are on duty. When the registered nurse is not on duty, the licensed vocational nurses decide whether a student’s medical problem is urgent enough to require the attention of a medical doctor or a psychiatrist. One of the licensed vocational nurses at Gaines-ville, who has worked at the school for over three years, stated that she never found it necessary to call a psychiatrist for emergency treatment of a student.

There is only one registered nurse working at Mountain View, no licensed vocational nurses, and six infirmary aides. The aides have the status of correctional officers and do not necessarily have medical training. Nevertheless, the aides sometimes are called upon to decide whether to refer a student to the doctor when the nurse is not present. The nurse is not always on hand at “sick call,” and is never present on Saturdays or Sundays. Only an infirmary aide is on duty during the night at the Mountain View infirmary, and students who are in the infirmary at night are normally confined in individual isolation rooms. The infirmary aide on duty is required to check these rooms hourly, but lights are not always turned on in the individual rooms. If no light is on, the student inside the room cannot be seen.

There is only one registered nurse at Gatesville Reception Center, and two registered nurses are assigned to the Gatesville infirmary. A registered nurse is not on duty at all times at either facility. When a registered nurse is not present (at night and on weekends), a licensed vocational nurse is on duty. The nurse on duty determines whether a student’s medical problem requires' the attention of a medical doctor. The nurs

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es are assisted by medically untrained male correctional officers, whose duties include checking any medical problem students might have in the genital area.

The TYC does not employ any full-time medical doctors. A medical doctor is employed to attend students at Crockett ; he visits at least one day each week and is on call at all other times. A medical doctor affords treatment for the girls at Gainesville at least one day each week and is on call at all other times. At Gatesville, a medical doctor provides services three days each week. A physician visits Mountain View two days each week and is on call at all other times.

The inadequacy of medical care at the various institutions sometimes results in traumatic incidents for students. One student at Crockett testified, without contradiction, that she had been taking penicillin for tonsillitis. She attempted to escape from the school, and was placed in solitary confinement as a punishment. Thereafter, she started vomiting blood. The nurse who was called arrived more than an hour later, and the student neither saw a doctor nor received any medication after the incident. On another occasion at Crockett, a girl inhaled a substance in an aerosol container. Since no doctor or nurse was on duty, the untrained staff members drove her to a local hospital, where she subsequently died. One girl who had a miscarriage at Gainesville did not see a medical doctor until approximately two days after the event. There is little prenatal and no postpartum counseling for pregnant girls at Gainesville. Students from all institutions testified that they often were denied the opportunity to see the doctor. In particular, students who have sought medical care after having been struck or physically abused by TYC staff members have not always received such attention.

At Mountain View, the untrained infirmary aides examine students assigned to the solitary confinement section of the school. The nurse does not see them, although she, herself, testified that the aides are not qualified to do a physical examination of a boy to determine whether he is in condition to be placed in solitary confinement. The boys in solitary confinement are brought to the infirmary every morning to have their temperatures recorded, but the nurse is not present at that time; hence, she does not know whether temperatures are taken during the weekend.

B.

Psychiatric Care

The teaching of the expert witnesses was that psychiatric care is another essential service that must be provided by a minimally adequate intensive residential facility. Specialized help for students should be provided through the coordination of the efforts of psychologists, psychiatrists, caseworkers, and teachers. All should be acquainted with each child’s day-to-day experiences and adjustment and be able to serve in a consultative capacity with the staff that works with the child. Expert witnesses stated that each student should participate in an intensive psychotherapy session at least three times weekly; if the session is a group session, it should be no larger than ten, with an optimal size of eight.

In a minimally adequate institution, experts testified, there should be one full-time psychiatrist for each one hundred students. Psychologists are also a necessary supporting service, without which neither psychiatric services nor casework services can be truly effective. A minimum standard is one psychologist with a Doctorate, and two with Master’s degrees, for each one hundred students. Psychiatric nurses should also be available to assist the psychiatrists.

A psychiatrist is employed to visit at Crockett on Tuesdays and Thursdays every other week. At Gainesville, a psychiatrist is employed to visit one day each week, although in January of 1973 the psychiatrist came only one day every other week. Psychiatrists are employed at Gatesville only four man-days each week, despite the fact that there are more than 1,000 students at the school.

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Brownwood has one part-time psychiatrist, who works two days each week at the school. A psychiatrist who practices in the town of Brownwood is on call for emergencies at other times. A psychiatrist is employed to come to Mountain View about one day each week.

There are no full-time psychiatrists employed by TYC. Because of the remoteness of the TYC institutions from the centers of population, it is difficult to recruit psychiatrists to work in those institutions. The only psychiatrist who works at Crockett and at Gainesville does not regularly visit the security treatment centers, the students’ living quarters, or the academic school. He also has no involvement in staff in-service training programs and conceives his role not as that of a treatment program supervisor, but as a consultant to the TYC. Nevertheless, he makes no input into the design of treatment plans, development of new programs, or staff training, and he seeks no regular interaction with the houseparents or caseworkers. Moreover, he is not familiar with the program environment of his student patients. Rather than participating in program design and implementation, this psychiatrist spends most of his time checking on students’ re

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