Full opinion text
MEMORANDUM OPINION NIXON, District Judge. This case challenges the conditions of confinement at the Oakley Training School (hereafter OTS), a state institution for delinquent boys, located near Raymond, Mississippi. The case arises under 42 U.S.C. § 1983 and the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. § 1343. At the time of the filing of his complaint, the named plaintiff, Kenneth Morgan, was 16 years old and was confined under an order of the Chancery Court of Rankin County, Mississippi finding him to be delinquent. On April 1,1975, the Court certified the case as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class consists of all present and future students confined at OTS, which at the time of filing consisted of approximately 350 boys between the age of 15 and 20. Defendants, who are sued in their individual and official capacities, are the Superintendent and two Assistant Superintendents of OTS, the Director of the Mississippi Department of Youth Services, and the five members of the Board of Trustees of the Department of Youth Services. This cause was submitted for decision on the basis of an agreed record consisting of the depositions of a number of expert witnesses, the pretrial order and numerous other depositions and exhibits introduced by the parties. On November 22, 1975, the Court entered an agreed Order relating to plaintiffs’ claims that the discipline procedures at OTS violate the due process clause of the Fourteenth Amendment. Under the Order, defendants agreed to provide procedural safeguards, including prior notice and an impartial evidentiary hearing, to all OTS students who are accused of violating the school’s rules and regulations. Defendants have also promulgated a new code of rules governing student conduct, approved by the plaintiffs, and adopted by Order of this Court on November 26,1976. The effect of these Orders is to remove from consideration at this time plaintiffs’ claims involving the constitutionality of the rules and regulations which govern student conduct at OTS. Before reaching the specific claims made by plaintiffs, we will describe the Mississippi juvenile justice system under which plaintiff and the members of his class have been committed to OTS, and will discuss the two principal legal theories under which plaintiffs attack the conditions at OTS. 1. THE MISSISSIPPI JUVENILE JUSTICE SYSTEM. Under the Mississippi Youth Court Act, Miss.Code Ann. §§ 43-21-1, et seq., any child between ten and eighteen years of age may be adjudicated a delinquent upon the petition of “a reputable person.” § 43-21-11. A delinquent child is defined as any child “whose occupation, behavior, environment or associations are injurious to his welfare or the welfare of other children,” and includes children who have run away from home, who are “habitually disobedient to or beyond the control” of their parents, who violate school rules or are willfully truant, or who deport themselves so as to injure or endanger the morals or health of themselves or any other person. § 43-21-5. The conduct for which juveniles may be incarcerated need not constitute a violation of any of the state’s criminal laws. After a delinquency petition is filed, a hearing is held before the Youth Court. The hearing is not a criminal proceeding but is “of a civil nature concerned with the care, protection, and rehabilitation of the child in question. . . .” § 43-21-17. The rules of evidence are not applicable, except as required by “applicable constitutional standards.” Id. The juvenile is not entitled to a jury, and the hearing is not open to the public. Id. Finally, in addition to the juvenile and his or her parent or guardian, any other person who is interested in the case may appear and be represented by counsel. Id. After the hearing, the Youth Court may enter an order adjudicating the juvenile a delinquent child. The order may not recite any of the facts or circumstances upon which the adjudication is based, and it may not recite that the child has been found guilty of any offense. § 43-21-19. The adjudication does not impose the civil disabilities ordinarily imposed for criminal convictions, and the child may not be deemed a criminal by reason of the adjudication. Id. Any child between the ages of 10 and 18 who is adjudicated a delinquent may be committed by the Youth Court to the custody of a state-supported training school, which may retain custody of the child until he or she reaches the age of 20. However, the superintendent of the training school may parole the child “at any time he may deem it to be to the best interest and welfare” of the child. § 43-21-19. Just as Youth Court hearings are not criminal, the purposes of juvenile incarceration under Mississippi law are therapeutic, not punitive. Thus, the State Department of Youth Services, which operates the state’s training schools, is authorized to develop and implement diversified programs and facilities to promote, enhance, provide and assure the opportunities for the successful care and treatment of delinquent children . § 43-27-10(d); and the training schools are to be operated so as to properly diagnose, care for, train, educate and rehabilitate children and youth . , being careful to employ no discipline, training or utilization of time and efforts of such youth that shall under any condition or in any way interfere with such [rehabilitation and reformation] objectives. § 43-27-22(b)(l) and (2). II. THE JUVENILE’S RIGHT TO TREATMENT AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT. In addition to their rights under Mississippi law, juveniles who are involuntarily committed to the Oakley Training School have a constitutional right to individualized care and treatment to enable them to become productive members of society. This right is supported by two equally sound theories. First, where, as in Mississippi, the purpose of incarcerating juveniles in a state training school is treatment and rehabilitation, due process requires that the conditions and programs at the school must be reasonably related to that purpose. The Supreme Court made this clear in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), where the Court held that a mental retardate committed to a state mental institution as incompetent to stand trial could not be confined indefinitely without treatment for his condition: At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. 406 U.S. at 738, 92 S.Ct. at 1858. More recently, in Morales v. Turman, 383 F.Supp. 53 (E.D.Tex.1974), rev’d on other grounds, 535 F.2d 864 (5th Cir. 1976), a case involving the incarceration of juvenile delinquents, the court stated: 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 pat riae 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. 383 F.Supp. at 71. Similarly, in Martarella v. Kelley, 349 F.Supp. 575 (S.D.N.Y.1972), the court stated, “Where the State, as par-ens patriae, imposes such detention, it can meet the Constitution’s requirement of due process and prohibition of cruel and unusual punishment if, and only if, it furnishes adequate treatment to the detainee.” 349 F.Supp. at 585. See also Wyatt v. Aderholt, 503 F.2d 1305, 1312-1313 (5th Cir. 1974); Pena v. New York State Division for Youth, 419 F.Supp. 203 (S.D.N.Y.1976); Welsch v. Likins, 373 F.Supp. 487, 496-497 (D.Minn.1974). Second, the State of Mississippi incarcerates juveniles without affording the full panoply of due process safeguards for delinquency adjudication hearings as are provided for adult criminal offenders. Miss.Code Ann. §§ 43-21-5, -17, -19. This denial of due process safeguards would be constitutionally impermissible unless the incarceration of juveniles serves beneficent, rather than punitive, purposes. See McKeiver v. Pennsylvania, 403 U.S. 528, 547, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). For these reasons, the courts have held that due process requires that the incarceration of juveniles be for rehabilitation and treatment. For example, in Nelson v. Heyne, 355 F.Supp. 451 (N.D.Ind.1972), aff’d, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974), the court reviewed the decisions of the Supreme Court which have delineated the procedural rights of juvenile offenders and concluded: The procedural rights now accorded a juvenile are patterned in large part by their impact upon the parens patriae underpinning of the juvenile justice system. The Court has sought to balance the juvenile’s procedural rights against the dictates of regenerative treatment, and where the asserted procedural right impinges upon the basic and unique premises of the juvenile system, the right is denied. In effect, the-juvenile offender is not fully protected by all of those rights secured to an adult, and the measure of the juvenile’s protection is in large part determined by treatment interests. 355 F.Supp. at 459 (citation omitted). And in Morales, supra, the court similarly stated: 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. 383 F.Supp. at 71. Accord, Inmates of Boys’ Training School v. Affleck, 346 F.Supp. 1354, 1364 (D.R.I.1972) (“. . . the constitutional validity of present procedural safeguards in juvenile adjudications, which do not embrace all of the rigorous safeguards of criminal court adjudications, appears to rest on the adherence of the juvenile justice system to rehabilitative rather than penal goals.”). Juveniles incarcerated in state training schools are also protected by the Eighth Amendment’s prohibition against cruel and unusual punishment. Martarella v. Kelley, supra at 585. The Eighth Amendment is binding on the states through the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), and it protects individuals who are not considered to have been convicted of any crime, such as juveniles committed to state training schools. Nelson v. Heyne, supra, 491 F.2d at 356; Lollis v. New York State Department of Social Services, 322 F.Supp. 473 (S.D.N.Y.1970). Furthermore, the prohibition against cruel and unusual punishment “is not limited to specific acts directed at selected individuals, but is equally pertinent to general conditions of confinement,” Gates v. Collier, 501 F.2d 1291, 1301 (5th Cir. 1974), such as many of the conditions challenged by plaintiffs here. Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977). III. THREE-JUDGE COURT. Although no party has raised the question of the necessity under 28 U.S.C. § 2281 of convening a three-judge court in this case, this issue is jurisdictional, and it is incumbent on the Court to do so sua sponte. Morales v. Turman, supra, 535 F.2d at 873 n. 11; Sands v. Wainwright, 491 F.2d 417, 424 (5th Cir. 1973), cert. denied, Guajardo v. Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771 (1974). We do not deem it necessary, however, to set forth in detail the legal principles which govern a determination of the applicability of § 2281 to cases attacking on constitutional grounds conditions of confinement in state rehabilitative ■institutions, inasmuch as these principles have been enunciated repeatedly and in great detail by the Fifth Circuit Court of Appeals in recent years. E. g., Costello v. Wainwright, 539 F.2d 547 (5th Cir. 1976) (en banc); Morales v. Turman, supra, 535 F.2d 864 (5th Cir. 1976); Newman v. State of Alabama, 503 F.2d 1320 (5th Cir. 1974); Sands v. Wainwright, supra (en banc). Upon careful consideration of these and other relevant authorities, we conclude that § 2281 does not require the convening of a three-judge court in the instant case because the plaintiffs here do not seek to enjoin an officer of the state from acting pursuant to a state statute of statewide applicability. In many respects the case most closely resembling the instant one is Morales v. Turman, supra, which was remanded by the Court of Appeals to the District Court for the convening of a three-judge court. Like the instant case, Morales involved a comprehensive, broad-based, constitutional attack on the conditions of confinement at rehabilitative institutions for juveniles. Critically, however, the Morales attack was aimed at policies and practices of the Texas Youth Council, applying to all juvenile institutions in the state. By contrast, the plaintiffs in the instant case attack only the policies and conditions of Oakley Training School, one of a number of institutions and programs administered by the Mississippi Department of Youth Services. The rehabilitative policies attacked are found only locally at Oakley and are promulgated by the superintendent of that institution, not by the Director of the Department of Youth Services. Thus, the policies and procedures complained of are not state statutes of statewide applicability. See, Wolff v. McDonnell, 418 U.S. 539, 542 n. 1, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972); Morales v. Turman, supra, 535 F.2d at 872-73 nn. 10-11; Newman v. State of Alabama, supra at 1327. Further, none of the relief sought or ordered here exceeds the compliance authority of the defendants under Mississippi statutes. Cf, Costello v. Wainwright, supra at 550. Likewise, the plaintiffs’ demands and this Court’s decision are carefully circumscribed to assure that nothing contained therein will require reallocation of legislative appropriations, a result which would bring this action within the purview of § 2281. Wyatt v. Aderholt, supra at 1318 (5th Cir. 1974). In those instances where it appears that significant reallocation of funds may be necessary to comply with constitutional mandates, the Court has refrained from ordering immediate action in order to allow the defendants to report to the Court on the action taken by the Mississippi Legislature on their pending requests for such funds. See also, Williams v. Edwards, supra. Finally, the Court notes that the defendants’ failure to move for the convening of a three-judge court indicates that the state does not view these issues as necessitating one. While the state’s view is not conclusive on this question, it is “entitled to great weight.” Morales v. Turman, supra, 535 F.2d at 873 n. 11. See also, Sands v. Wainwright, supra at 424. IV. INTENSIVE TREATMENT UNIT. The Intensive Treatment Unit (ITU) was constructed in 1972 as a security facility for OTS students with discipline problems. Pretrial Order ¶ E(2) at 7, ¶ H at 24. The ITU consists of fifteen individual cells, a day room, a shower room and an office for the cottage parent who is on duty. Pretrial Order ¶ H(3) at 24. The walls and floors are covered with a tile or terrazzo-like material. See also, Exs. P-1 to P-5. One of the cells was padded until recently. It has no window, furnishings, or slab for sleeping. The toilet consists of a hole in the floor with a flushing mechanism located outside of the cell. Pretrial Order ¶ H(4) at 24; Ex. P-3. This cell is regularly used to house students during the day when all of the other cells are in use. Pretrial Order ¶ H(4) at 24; Brodsky 10. The other fourteen cells have no furnishings, except a combination wash basin/commode and a concrete slab built into the wall for sleeping. Each of these cells has a small opaque outside window, which admits some light but does not allow the occupant to see outside. The cell doors are solid except for a T-shaped opening. Pretrial Order ¶ H(5) at 26. Although there are spaces for light fixtures in each of the cells, the fixtures have been removed. Reed 8-9; Brodsky 9. Students in the ITU are confined alone in their cells for the entire day, except for twice-daily showers and a group calisthenics period on weekdays. Pretrial Order ¶ H(7), (15) and (19) at 26 and 28. Meals are eaten in the cells. Davis 92. Students are not permitted to talk to other students. Pretrial Order ¶ H(ll) at 27; Davis 97. Students are not permitted to lie down or to sleep during the day. Pretrial Order ¶ H(ll) at 27; Davis 97. Students who are confined in the ITU are denied all of the programs and services which are given to students in the general OTS population. They do not attend academic or vocational classes, nor do they receive any substitute instruction. Pretrial Order ¶ H(16) at 28. They are denied reading materials, except the Bible. Pretrial Order ¶ H(17) at 28. Prior to the filing of this suit, they were not permitted to write or receive letters. Pretrial Order ¶ H(18) at 28. During 1974, students were confined in the ITU on 393 separate occasions. The most frequent offense resulting in confinement was running or threatening to run away. Students were also confined for being disrespectful to staff members, stealing, “behaving inadequately,” fighting, homosexual behavior, and for attempted suicide. Pretrial Order ¶ H(l-2) at 24-25. The record shows that the average length of confinement in the ITU is 11 days, but students have been confined for as long as 85 days. Pretrial Order ¶ H(2) at 25. As stated in the original funding application to the Law Enforcement Administration for the construction of the ITU, its purpose is to provide intensive counseling and treatment to enable students to adjust to institutional life. Milan 74. However, the experts agreed that no real treatment or counseling services are therein provided to the students. Milan 74 — 75; Brodsky 10; DeCell 30-31; Draper 30-31. Students have no contact with their own cottage parents or teachers, and there is no counseling program for them. Pretrial Order ¶ H(15), (16) at 27-28. Instead, on the days he is on duty, the chief counselor visits each ITU student for up to ten minutes. Pretrial Order ¶ H(14) at 27. The ITU staff often do not know why the students have been confined, Brodsky 8, 10, 81-82, 98; and the students’ charts do not reflect the reasons for their confinement. Pretrial Order Exh. J. Both the Court’s and plaintiffs’ experts testified that confinement in the ITU for other than extremely short periods of time is harmful to OTS students and undermines the legitimate treatment of goals of the institution. Brodsky 13-15; Fannin 68; Draper 31; Cox 60. The experts strongly rejected the possibility that placement in the ITU would deter the kinds of conduct which put them there. Mr. DeCell, for example, pointed out from his own experience in South Carolina that isolation in a lock-up such as the ITU does not make students penitent but instead increases their hostilities and adds to their behavior problems. DeCell 30-31. Dr. Brodsky found that the students in the ITU showed “. . . little sense of deterrence. They felt much more that they were victims rather than they had learned a lesson.” Brodsky 28-29. See also, Milan 76, 79. Courts have uniformly prohibited the use of juvenile lockup facilities such as the ITU. For example, in Inmates of Boys’ Training School v. Affleck, supra, the district court enjoined the future confinement of juvenile offenders in two maximum security facilities which, like the ITU here, were used to punish students for running away from the institution or for violating its rules. Despite the lack of any physical abuse of the students, the court ordered the facilities closed because [t]o confine a boy without exercise, always indoors, almost always in .a small cell, with little in the way of education or reading materials, and virtually no visitors from the outside world is to rot away the health of his body, mind and spirit. 346 F.Supp. at 1365-66. Similarly, in Lollis v. New York State Department of Social Services, supra, the court ruled that the isolation of a 14 year old offender in a bare room without reading materials or other recreation for a two-week period constituted cruel and unusual punishment barred by the Eighth Amendment. 322 F.Supp. 482-83. The court relied upon the affidavits of seven experts who unanimously agreed that extended isolation imposed on children is “not only cruel and inhuman, but counterproductive to the development of the child.” 322 F.Supp. at 480. In Nelson v. Heyne, supra, the district court enjoined the continued use of isolation cottages for disciplinary purposes on the basis of expert testimony “that prolonged and total isolation ... is emotionally and psychologically debilitating and serves neither treatment nor punitive goals.” 355 F.Supp. at 456. The conditions in these cottages were remarkably similar to the conditions in the ITU: students could be confined for 5 to 30 days, although there was evidence that this limit had been exceeded in individual cases; the confinement rooms were 9' X 12' in size, and contained only a bed and toilet; students had little contact with the school’s counseling and psychological staff and their academic or vocational programs were suspended. 355 F.Supp. at 456. This court finds that confinement of students under the conditions that presently exist in the ITU at OTS constitutes cruel and unusual punishment as prohibited by the Eighth Amendment to the United States Constitution and violates the students’ right to rehabilitation and treatment, as guaranteed by the due process clause of the Fourteenth Amendment. The defendants will therefore be enjoined from using the ITU as an isolation unit, except under the following limited conditions which are necessary to insure that placement therein will not do any emotional or psychological harm to the students: students may not be placed in the ITU except where there is substantial evidence that they constitute an immediate threat to the physical well-being of themselves or others; confinement may not exceed 24 hours and must be approved within one hour of the confinement by the Superintendent, one of the Assistant Superintendents, the Chief Counselor or a staff psychologist; students in the ITU must be visited at least once every three hours during the day by the Chief Counselor, the students’ own counselor or a licensed psychologist; the cells in the ITU must be provided with transparent windows, lights, mattresses, blankets, sheets, pillows, small tables for reading, chairs, soap and towels; unless a contrary program is indicated in an individual case by a licensed psychologist, students placed in the ITU must be permitted to sleep a reasonable time during the day, to have reading materials, to send and receive mail, and to have visitors; the students must receive daily at least an hour’s, physical exercise outside of the ITU or in the gym; and they must be allowed to eat their meals outside of their cells. V. TREATMENT PROGRAM. In enforcing the constitutional right to treatment for juveniles, courts have not attempted to define the particular treatment program which is appropriate for specific individuals, but instead have required certain fundamental conditions in an institution which will allow adequate treatment to take place. As delineated by the courts and reaffirmed by the experts testifying in this cause, these fundamental conditions are: (1) the institution’s entire program must be geared to meet the individual needs of each student; Nelson v. Heyne, supra, 491 F.2d at 360; (2) the institution must employ sufficient numbers of qualified professional and support personnel to enable it to provide the individualized programs found to be appropriate for each student; Martarella v. Kelley, supra at 601; Inmates of Boys’ Training School v. Affleck, supra at 1374; (3) the institution must provide an environment which is conducive to rehabilitation as well as sufficient programs, including education, vocational training, and recreation, to enable the students to obtain the necessary skills to return to society. Inmates of Boys’ Training School v. Affleck, supra at 1369-1370. The evidence of record demonstrates that none of these fundamental conditions of rehabilitation for juveniles are met at OTS. A. Individualized Programs In Nelson v. Heyne, supra, the Court of Appeals for the Seventh Circuit explained the basis for requiring individualized programs as follows: In our view the “right to treatment” includes the right to minimum acceptable standards of care and treatment for juveniles and the right to individualized care and treatment. Because children differ in their need for rehabilitation, individual need for treatment will differ. When a state assumes the place of a juvenile’s parents, it assumes as well the parental duties, and its treatment of its juveniles should, so far as can be reasonably required, be what proper parental care would provide. Without a program of individual treatment the result may be that the juveniles- will not be rehabilitated, but warehoused, and that at the termination of detention they will likely be incapable of taking their proper places in free society; their interests and those of the state and the school thereby being defeated. 491 F.2d at 360 (emphasis in original). The importance of this point is underscored by the wide range of conduct for which juveniles may be committed to institutions such as OTS. Students at OTS may include eighteen-year-olds whose conduct violated the state’s criminal laws, as well as younger boys whose only problem was that they did not get along well in school or had created problems for their families. According to the expert testimony, in order for OTS to provide individualized programs for its students, incoming students must be fully evaluated to obtain basic educational, medical, psychological and vocational information. Cox 12-15; Draper 22; Milan 12; Fannin 21; DeCell 17-18. OTS has no such evaluation procedure. Pretrial Order ¶ G(25-26) at 18-19. Instead, OTS only has the part-time services of a consultant psychologist, Dr. Daniel Cox. Dr. Cox, a Court-appointed expert witness in this case, candidly testified that these services are insufficient to evaluate OTS students adequately, Cox 23, and that a diagnostic and evaluation center headed by a licensed psychologist is needed at OTS. Cox 12, 24, 68-71. The experts also testified that individualized treatment plans must be prepared for each OTS student, contrary to present practice. Pretrial Order ¶ G(12) and (22) at 14, 18. These plans should describe in precise terms the school’s long- and short-term objectives for the student and the full range of services to be provided. Timetables and staff assignments should also be indicated. Cox 69-70; Milan 20-21; Fannin 26. Written treatment plans are necessary to insure that the entire OTS program is devoted to meeting the students’ individualized needs for care and treatment. “Without a formal construction of an individualized treatment plan . . . [t]here is no such thing as a service oriented institution.’’ Cox 30. Dr. Milan described the function of the treatment plan as insuring that the school’s programs focus on the students’ identifiable needs as well as permitting regular re-evaluations of the services being provided. Milan 22-23. Finally, Dr. Draper and Dr. Fannin testified that treatment plans are essential as a means of assuring accountability of staff to students. Draper 20-21; Fannin 26-27. Students at OTS are placed in residential facilities or cottages without regard to their age, prior social history, reason for confinement or individual treatment needs, but solely on the basis of vacancies and the maintenance of a fixed black-white ratio in each cottage. Pretrial Order ¶ G(27) at 19. Dr. Cox considers this process to be “random and confused” and stated that it did not allow students a reasonable opportunity to be rehabilitated. Cox 33. In addition to exposing younger and less aggressive students to the older and more “criminal” elements at the school, the haphazard placement of students provides little opportunity for the effective use of peer group pressure in the students’ treatment, Cox 34-37, and it does not allow the matching of students with compatible counseling and supervisory staff. Finally, the experts are of the opinion that there must be regular procedures to determine whether a student is making progress toward the treatment objectives set for him. Milan 22-23; Cox 32. Dr. Cox explained the role of regular program reviews as follows: At this time there may be need for additional formal assessment. We may have to scrap the whole program and start over again. We may have to make certain adjustments ... in all cases at this 30 day period I have never witnessed in my experience any program which was not adjusted in some way ., because we’ve had 30 days of observation of the child in this situation Cox 32. Although counselors at OTS are supposed to follow the students’ development, they do not have regular conferences with the students’ teachers, recreation supervisors or job supervisors, nor do they receive periodic reports' from other staff members who work with their students. Unless there are severe behavior problems, no full staff evaluations are conducted on individual students. Pretrial Order ¶ G(12) at 14. The failure of OTS to evaluate and reevaluate the individual needs of its students completely undermines the rehabilitative purposes of the training school. Therefore, the defendants will be ordered to submit a plan to establish a complete diagnostic and evaluation procedure for all incoming students and all present OTS students who have been at the school for less than 90 days. In addition, defendants will be ordered to formulate individualized written treatment plans for all students, in accordance with generally accepted professional standards, to determine cottage placements on the basis of the students’ individual needs and programs as set forth in the treatment plans, and to institute a program of periodic staff reviews and evaluation of these students’ progress. The evaluation process and the preparation and re-evaluation of treatment plans shall be supervised and coordinated by a licensed psychologist. B. Treatment Staff The experts testified that a staff sufficient to provide minimally adequate treatment at OTS must include the following personnel: (1) at least one full-time licensed psychologist or psychiatrist to coordinate and supervise the treatment program; (2) a sufficient number of qualified counselors to implement the treatment program and to provide individual and group counseling to the students; (3) a sufficient number of qualified cottage parents to supervise the daily cottage life; (4) sufficient outside consultant services to provide specialized psychological, psychiatric and medical services where needed. The experts also stressed the need for in-service and other training programs for all treatment staff. It is clear from the record that OTS does not meet any of these minimal standards. (1) Staff Psychologist. The record shows that only doctorate level psychologists or psychiatrists have adequate training to coordinate and supervise the treatment program. Cox 42; Draper 19-20. However, as has already been noted, OTS does not have a full-time psychologist on its staff. The present part-time consultant arrangement makes no provision for psychological counseling or therapy to individual students and the psychologist is not involved in the development of individual treatment programs. Cox 29. Defendants testified that they have for some time been attempting to employ a staff psychologist to serve both OTS and the Columbia Training School, which is located approximately 100 miles from OTS. Russell 13-14. However, the uncontradicted evidence is that at least one full-time psychologist must be employed to serve the OTS population, Cox 24-25; Draper 20; Milan 59-60; Brodsky 41; DeCell 19; and the Court finds that a single psychologist to serve both institutions will not satisfy defendants’ constitutional duty. (2) Counselors. Master’s level social workers or counselors must be employed in sufficient numbers to provide adequate treatment to juveniles. Cox 37-38; Draper 19; Milan 63. The experts testified that the counselor/student ratio must not exceed 1:15-20 for the counselors to do their job adequately. Cox 43, 44; Draper 17; Milan 63. OTS accepts counselors if they have an undergraduate college degree in one of the behavioral sciences. Counselors are not required to have prior experience working with adolescents, nor are they required to take courses in social work or child psychology after they are hired. Pretrial Order ¶ G(ll) at 13. None of the present counselors has a master’s degree, Milan 33, and OTS has no inservice or pre-service training program for its counselors, although experts testified that continuous on-the-job training is essential. Cox 42; Draper 19; Brodsky 41. Each OTS counselor has a caseload of approximately 40-55 boys and works 40 hours per week. Counselors generally have no more than 10-15 hours a week available for individual counseling sessions with the students. As a result, there are no regular or systematic counseling sessions for each student. If a student does not request to talk with his counselor and has not caused any severe discipline problems, he may only meet with his counselor once or twice during his entire stay in a cottage. Pretrial Order ¶ G(10) at 13. Under these circumstances, the experts agreed that OTS is unable to provide minimally adequate treatment to its students: The counselors’ case loads . . . preclude any individualized treatment . It’s tactically and strategically impossible for a counselor who is responsible for fifty students to spend the time required with each in either individual or group counseling, to deal with [social and interpersonal] problems. Milan 32. [The consequence of exceeding the 1:15 counselor/student ratio is that] you immediately defeat the whole purpose of an individualized treatment program by cutting your services to individuals. You immediately place a burden on the counselor that would have to be adjusted by seeing greater numbers of children for lesser periods of time, meaning the counselor could not devote his entire attentions to the needs of any of his people. He would be spread too thin, and of course this is damaging. Cox 44. See also, Brodsky 41. (3) Cottage Parents. All of the experts agreed that cottage parents are the critical staff members in the rehabilitation of delinquent youth because of their close and continuous contact with the students. Phelps 22; Cox 50; Fannin 37; Draper 38-39; Milan 67; Russell 10, 20. While one expert testified that cottage parents should have a bachelor’s degree, Cox 50, most of the remaining witnesses agreed that cottage parents must have at least a high school education. Russell 29; Milan 64; Fannin 31; Draper 15. An extensive pre-service and in-service program is mandatory to insure that cottage parents can cope effectively with the particular problems of delinquent youth. Cox 81-83; Draper 15, 39; Fannin 31, 34-35; Milan 67-68. Finally, the parties stipulated that a cottage parent/student ratio of 1:20 is a minimally adequate ratio. Pretrial Order ¶ G(9) at 13. Almost half of the OTS cottage parents do not have a high school education and very few have had any prior experience which would aid them in working with the OTS students. Pretrial Order ¶ G(6) at 11-12. Moreover, they do not receive any preservice or in-service training. Pretrial Order ¶ G(5) at 10. OTS cottage parents are responsible for supervising from 40 to as many as 55 students. Pretrial Order ¶ G(7) at 12. Consequently, their time is spent maintaining order and enforcing the OTS rules, Pretrial Order ¶ B(8) at 12, and it is impossible for them to perform any meaningful treatment function. Phelps 22. Dr. Milan described this problem: Houseparents with whom I talked described themselves as sitters and this is also indicated in depositions. They look at themselves as responsible for order and discipline and protection of students from other students. They don’t see themselves formally as members of a treatment team. They act in a manner appropriate to this self-definition ... If he’s going to be anything other than this, three things must be done. One, that his role has to be redefined. He is to be redefined as an on-line member of a treatment or behavior modification team. Secondly, he has to be provided the skills necessary to function as a member of the treatment team and thirdly, the ratio between houseparent and student must be reduced so that he can practice the skills with which he has been provided. Milan 66-67. (4) Consultant Services. The experts also testified that OTS must have access to a wide range of psychological, psychiatric and medical services to meet specialized treatment needs of its students. Draper 18, 23; Cox 18, 23-24; Milan 60. A systematic evaluation procedure for incoming students would be meaningless unless services are provided to meet the students’ individual rehabilitative needs revealed by the evaluation. Thus, some students will require individual and group psychotherapy, Draper 18, neurological services, Cox 18, psychiatric consultation, Cox 23, speech and hearing specialized services, Cox 23-24. Such services are clearly necessary for the rehabilitation of OTS students. It is essential that these staff deficiencies be corrected to enable OTS to provide minimally adequate treatment for the juveniles confined there. Therefore, the Court will require the defendants (1) to employ a full-time licensed staff psychologist (or psychiatrist) at OTS to supervise the school’s evaluation and treatment programs; (2) to employ sufficient counselors, with at least a master’s degree in social work, counseling, or one of the behavioral sciences, to achieve a maximum counselor/student ratio of 1:20; (3) to employ sufficient cottage parents, with at least a high school degree, to achieve a maximum house parent/student ratio of 1:20; (4) to contract with outside specialists to provide all of the consultant services necessary to meet the needs of OTS students, including psychiatric, neurological, medical, and eye and ear services; and (5) to submit within a prescribed reasonable time, a plan for a program of pre-service and regular in-service training for counselors and cottage parents at OTS. C. Progressive Phase Program. In June 1972, this Court permanently enjoined these defendants’ predecessors from using a program whereby the progress of students through OTS was determined by their avoidance of rule infractions. Crump v. Board of Trustees, Mississippi State Training School, C.A. No. 72J-88(N) (S.D.Miss., July 5, 1972); Exh. P-56. After the issuance of that injunction, defendant Sproat and the former staff psychologist designed a “differential treatment program” which, at least on its face, was an effort to provide some individualized treatment services to the OTS population. The differential treatment program was never implemented because of the lack of staff and resources at OTS. Sproat I at 156-157 and Exh. 12 thereto. Instead, defendants established a progressive phase program, which is in all essential respects identical to the program previously enjoined by this Court. The Progressive Phase Program is a method of moving students through a sequence of cottages until they are deemed ready for parole. Pretrial Order ¶ G(2) at 10. To move from one phase to another, a student must ordinarily receive passing grades from his counselor for eight consecutive weeks. Pretrial Order ¶ G(29) at 19-20. Grades are determined primarily by the number of “white slips” issued to the student. Pretrial Order ¶ G(18) at 16. A white slip is a small standardized form which contains spaces to indicate six categories of unacceptable behavior: work unsatisfactory, disobeys staff member, acting up in general, fighting, attempting to run, and use of profanity. Pretrial Order ¶ G(13) at 15; Exh. P-42. All OTS employees are required to report unacceptable behavior on these slips, but the employees have not received any instruction to clarify the offenses. Pretrial Order ¶ G(13) at 15. As a result, white slips have been given for such petty conduct as getting a drink of water without permission, sleeping at 4:30 in the afternoon, and wearing shoes inside the cottage, Pretrial Order ¶ G(14) at 15; and the frequency with which white slips are used and the types of behavior for which white slips are given vary greatly among staff members. Pretrial Order ! G(15) at 15. Finally, there is no standardized method for reporting good or positive individual student actions, and student records are almost totally devoid of good behavior reports. Pretrial Order ! G(17) at 16. The progressive phase program is supposed to be based on behavior modification techniques. Pretrial Order ! G(2) at 10. However, the behavior modification specialists who evaluated the phase program found that it violated all of the basic principies of behavior modification. They noted in particular the lack of consistency, the failure to specify concrete and limited goals for each student, the absence of sufficient positive incentives to generate appropriate behavior, the long delay in giving any rewards for achievement, and the placement of the greatest rewards at the end of a student’s stay rather than at the beginning. Draper 7-9; Milan 43-52. The experts were particularly critical of the fact that students’ progress through the phase system is based entirely on their avoiding unacceptable behavior, i. e., staying out of trouble. Pretrial Order ! G(21) at 17; Draper 8-10; Milan 46. They concluded, that as a result of the program’s negative focus, it inhibits rehabilitation, Draper 9, 14; Cox 54-56; Milan 46. While negative (aversive) programs may be able to stop certain behaviors for a short time, this effect soon dissipates, and the objectionable behavior tends to return when the controls are lifted. Draper 9; Milan 128-129. Moreover, negative controls are specific to the behaviors which are' targeted for control, so that they do not have any transferable impact on other student behaviors which may need correction. Milan 56. They destroy a student’s sense of self-worth, which is essential for rehabilitation, Draper 11, and fighting and other unwanted conduct actually increase. Milan 54-55. The experts agreed that behavior modification techniques, even if properly applied, cannot substitute for inadequate staff and programs in other areas at OTS, such as counseling, education, vocational training, and recreation. If these program elements are deficient, as they clearly are at OTS, then the addition of a point system or token economy or any other similar behavior modification approach will not create an adequate treatment program. Draper 12-13, 18, 42-44; Cox 54^55; Milan 39-2, 58-59, 67; DeCell 93. The Court therefore concludes that the Progressive Phase System does not provide minimally adequate treatment as required by the Constitution and is in fact counter-rehabilitative. The defendants will be enjoined from the continued operation of that system and will be ordered to submit a plan to the Court for the determination of students’ progress at OTS, including their readiness for parole or release. D. Institutional Life. The experts agreed that in order to render minimally adequate treatment to its students, OTS must maintain a physical environment at the school that is not detrimental to the students’ rehabilitation. Students at OTS live in eight residential cottages, Pretrial Order ¶ E(2) at 8, one of which, Foster Cottage, was used as the reception and evaluation unit until September, 1975. Pretrial Order ¶ G(22) at 17. With the exception of Foster, the cottages were built between 1944 and 1961. Pretrial Order ¶ E(2) at 8. Despite their age, the cottages are in satisfactory repair and are kept clean. Brodsky 69; Reed 6; DeCell 14. However, the experts were deeply concerned about the extent to which overcrowding and lack of privacy in the cottages interferes with the school’s rehabilitative function. Defendants, it appears, substantially agree with these criticisms and are seeking funds to construct new residential facilities. Approximately 40 to 50 students are assigned to each of the residential cottages. Pretrial Order ¶ C(6) and F(l) at 6, 8. The cottages are generally impersonal, and there are no pictures or other decorations to make them more humane and comfortable for the students. Milan 131-132; Exhs. P-10, P-19. Except in the pre-release (Rowan) cottage, where students live in small rooms, students sleep in a single bay-style room, approximately 1900 square feet in size. Pretrial Order ¶ F(l) at 8. There is no furniture in the sleeping areas except for the beds. The students’ clothing is kept in a separate common room. Exhs. P-6, -7. Personal possessions are kept in a “box” room, Exh. P-18, and students must receive permission and assistance from their counselor to obtain possessions kept in the box. Pretrial Order ¶ F(2) at 8-9. In addition to the sleeping area, each of the residential cottages has a day room, a shower/toilet area, and a small office for the institutional counselor. The day rooms are approximately 900 square feet in size, Pretrial Order ¶ F(3) at 9, and they are furnished with chairs, tables and a television. With the exception of the toilets in the pre-release and reception cottages, the toilets and showers in the cottages are not separated by partitions. Pretrial Order ¶ F(5) at 9. The evidence of record demonstrates that the sleeping areas and day rooms in the OTS do not meet the minimum space requirements for the number of students confined there. Overcrowding is especially acute in the day rooms, because students are confined in these areas for much of their day. Under OTS policy, the students must remain in the day room when they are not in school, on work-detail or at the gym. Pretrial Order ¶F(3) at 9. They are not permitted in the dormitory area during the day, Pretrial Order ¶ F(3) at 9, and they must receive permission to enter the toilet area. Pretrial Order ¶ G(28) at 19. Individual students are not permitted outside of the cottages except with the whole group. Pretrial Order ¶ F(3) at 9. According to the experts, overcrowding in residential areas creates a hostile, chaotic environment which is counter-therapeutic to the needs of the students and results in fights and irritability. Milan 86; Brodsky 53-54; Phelps 45. The experts also testified that the lack of privacy in the cottages makes it impossible to conduct even a minimal treatment program because most adolescents are in a period of emotional “turmoil” and need space where they can be alone and try to “think their problems out”. Fannin 11(a); Cox 56. Students also need free access to their own possessions and need their own space where they are not part of the group in order to achieve a sense of dignity and responsibility. Brodsky 50-51; Milan 87; Fannin 19. Finally, smaller living arrangements are more akin to conditions in the outside world, and, unlike the large group living areas at OTS, enable the students to learn to relate to other individuals in positive and successful ways. Brodsky 64. Defendants are aware of the problems caused by the size and condition of the OTS cottages. Superintendent Sproat testified that the placement of 40-50 students in the OTS cottages makes it impossible to implement an individualized treatment program, and that he had proposed replacing four of the present cottages with eight smaller cottages, which would house no more than 20 to 25 students. Sproat I at 63-64. Russell testified that the present cottages are “totally too large to [be] conducive] to any adequate rehabilitation in one living facility.” Russell 5. He also stated that construction of new cottages has been defendants’ top construction priority since 1973, but that their request for funds has been rejected on three occasions. Russell 6. In 1975, the state Budget Commission approved construction of eight new cottages (as well as other new facilities). Russell 6. The record does not indicate whether the Budget Commission’s recommendation was accepted by the Mississippi legislature or whether adequate funds were appropriated for construction of new cottages at OTS. In light of the expert testimony concerning the harmful conditions existing in the present OTS cottages, as well as defendants’ own recognition that new cottages must be built if OTS is to serve its rehabilitative function, the Court finds that the present OTS cottages are inadequate. Defendants will be ordered to report to the Court by no later than 30 days from the date hereof regarding the action taken by the Mississippi legislature on the OTS request for capital improvements. If the request is refused, the Court is prepared to take necessary steps to insure that the constitutional rights of the students are protected. If the OTS request is granted, defendants will be required to submit to the Court, also within 30 days, plans for the construction of the new cottages within a reasonable period of time. E. Educational, Vocational and Recreational Programs ' ' OTS must provide adequate educational, vocational and recreational services to its students if it is to maintain a minimally adequate treatment program. Cox 19-22, 26-28, 74-75; Draper 12-13, 42-44; Milan 39-42; Bell 32; Fannin 11a, 56-58. Dr. Milan, for example, described the heed for basic educational programs: Training schools for delinquent youths in general and the Oakley Training School in particular have students who are severely deficient in academic . skills. What I’m referring to now are basic survival skills, the ability to read, the ability to write and the ability' to perform basic arithmetic computations. It is imperative that the function of the school be to concentrate to remediate these deficiencies, . that reason being [that] people who carry these deficiencies with them when they leave here and return to the community don’t have legitimate access to the goods and services of the society. They can only expect to be placed in the most menial of jobs, in the most low paying jobs with little if any hope for advancement and the only alternative to this meager and bleak existence is the return to illegal activities. Milan 39-40. Dr. Bell described the need for vocational programs: [A] lot of these youngsters can be helped through a vocational-educational program that combines basic education with some kind of vocational training that will allow them to be at least semi-independent and able to market themselves in some way upon release from treatment. . [0]ur experience has been that when young people leave a facility [like] a training school, . . . [and] are not able to have a marketable skill, something that they can get some kind of income on, they are going to pretty much resort back to the same kind of habits of stealing, etc., they had before. Bell 32. Finally, the experts stressed that recreational programs are an essential part of a minimally adequate treatment program. Cox 90-91; Draper 13; Fannin 55-56; DeCell 12, 58-60; 62-63. The evidence is also overwhelming that the OTS programs in these areas are fundamentally deficient. Education. The academic program at OTS consists of a high school, Pretrial Order 1IJ(16) at 33, an ungraded levels program, which is intended to provide remedial education to students who are achieving below the 9th grade in reading and mathematics, Pretrial Order ¶ J(13) at 32, and two small special education classes for the educable mentally retarded. Pretrial order ¶ J(8) at 31. The experts identified numerous fundamental deficiencies in these programs. 1. OTS students are not evaluated to determine their educational needs. The majority of incoming students arrive without any school records, and, for approximately 50% of the students, prior school records are never received. Pretrial Order ¶ J(3-4) at 30. As a result, OTS has no way to identify students with learning disabilities or other educational problems which need special attention and has no means of developing an education program to meet the individual needs of each student. Pretrial Order ¶ J(4-5) at 30-31; Bell 20-22; Cox 12; Milan 12; Fannin 21; Draper 22. 2. An extremely high percentage of OTS students are retarded or have other problems which require special education services. Pretrial Order ¶ J(7) at 31. However, OTS has virtually no special education programs for these students. At present, there is only one special education teacher who teaches approximately 20 students. Pretrial Order ¶ J(8) at 31. There are no special education services or classes for the trainable mentally retarded, students with specific learning disabilities, emotionally handicapped youth, or hearing and visually impaired students. Pretrial Order fJ(10) at 32. OTS students who have these problems receive no services designed to meet their needs. 3. The Mississippi Standards for Accreditation of Elementary and Secondary Schools include curriculum requirements which are applicable to OTS. Pretrial Order ¶ J(22) at 34. The OTS high school, however, does not offer a number of courses required by the accreditation standards. Pretrial Order Exh. M. and ¶ J(17), (19) and (21) at 33-34. Several of the high school teachers are not certified to teach the subjects to which they were assigned by OTS. Bell 16; Sproat II at 22-23; Russell 40. There is a serious absenteeism problem among the teachers, and since OTS has no substitute teachers, students receive no instruction when their teachers are absent. Pretrial Order ¶ J(24) at 34. 4. Although the experts agreed with the basic concept of the levels program, which attempts to focus on specific learning goals for each individual student, they found that the program has not in fact been implemented. There is no testing and retesting of the levels students, no special instructional materials, and no training of the teachers who were in the program. Bell 23-29. Students in the program in fact do not progress beyond their entrance level. Pretrial Order ¶ J(14) at 33. Finally, the school principal described one of the levels classes as amounting to nothing more than babysitting. Bell 28-29. 5. OTS has no training programs for its teachers. Pretrial Order ¶ J(29) at 35. Expert testimony established that inservice training is critical to the educational program at a juvenile institution: [I]t serves an instructional role. It provides an organized scheduled opportunity for additional information to be passed to the teachers about the students they are working with, to maximize their effectiveness. [Ijt provides an opportunity for teachers to discuss problems that they’re having among themselves. This unifies them as a teaching team to come up with treatment approaches, to discuss students. I think that kind of feedback within the staff is essential. Bell 29. 6. One of the Court’s experts found that the OTS school building is “very inadequate, obviously old, antiquated . . .” and concluded that the building needs “to be totally replaced.” Phelps 8-9. Defendant Russell agreed with this conclusion: “The school building that exists there now is totally beyond renovation; it would not be feasible to even consider trying to renovate or make do with this facility.” Russell 6. Defendants have sought state funds to replace the present school. Russell 6. Defendants will be ordered to submit a plan to remedy each of the deficiencies in its educational program detailed in this opinion. This plan must include specific steps (1) to provide a complete educational assessment of each incoming student, (2) to provide special education services and programs to all students who are diagnosed as needing such services, (3) to establish an inservice training program for all teaching staff, (4) to hire a teaching staff certified to teach in the fields to which they are assigned, (5) to bring their high school programs into compliance with state requirements for public high schools, (6) to institute a periodic testing program to determine the educational progress made by individual students, and (7) to obtain sufficient instructional materials to run an individualized program of instruction that provides rewards for academic progress. In addition, defendants will be ordered to report to the Court within 30 days on the action taken on their request for funds to construct a new school building at OTS. If that request is denied the Court will consider such further relief as may be necessary to insure that OTS students receive the education to which they are entitled. Vocational Training. Approximately 180 students at OTS attend vocational classes for three hours a day in one of six trades: shoe repair, welding, auto' mechanics, building trades, upholstery, and body and fender. Pretrial Order ¶ J(32) at 35. Two years ago, an evaluation committee appointed by the vocational education division of the State Department of Education found a number of fundamental deficiencies in this program. Pretrial Order Exh. O. The evidence showed that these problems have not yet been.cured. 1. One glaring weakness of the vocational program is that large numbers of students receive no training at all. Approximately 40-45% of the OTS students are not enrolled in any vocational classes; they are assigned instead to work crews which perform manual'labor on the school farm, janitorial tasks in? the cottages, errands in the school and administrative buildings, and work in the OTS laundry, cold storage area, and dining hall. Pretrial: Order ¶ K(l) at 36-37. Defendants agreed with the expert testimony that these work assignments do not provide any vocational training. Daniels 23-24. The employees who supervise the crews are not trained instructors, and completion of the work assignments does not earn vocational credit in the public school system. Pretrial Order ¶ K(2) at 37. 2. The evaluation committee also found that the vocational curriculum must be expanded to include additional offerings as well as an occupational orientation program for younger students, and that the hours spent in vocational classes must be increased. Pretrial Order Exh. O. These necessary changes - have not been made. Pretrial Order ¶ J(32) at 35; Daniels 20-21; DeCell 34-35, 69. One reason.why OTS’s vocational program is so limited is that defendants have not made use of off-campus vocational opportunities, including courses at nearby junior colleges and technical schools and work-release programs. Pretrial Order KJ(37) and (38) at 36. A number of the experts stressed both the importance and feasibility of off-campus programs in expanding and improving the vocational training at OTS. Bell 32-34; DeCell 70-71. 3. Students at OTS are not evaluated to determine their vocational aptitude; instead they are placed in vocational classes on the basis of existing vacancies and person preference. Pretrial Order ¶ J(33) at 35. In addition, .students are not provided with -any assistance in obtaining job placements or further training. Pretrial Order ¶ J(39) at 36. Both the evaluation committee and the experts concluded, and the Superintendent of OTS agreed, that vocational counselors must be employed at OTS to remedy the