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Discipline or State Sanctioned Child Abuse: The Ugly Truth About Seclusion and Restraint

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The US Department of Education Office for Civil Rights recently released the results of the 2015-16 Civil Rights Data Collection. Civil Rights Data Collection provides information on several key education and civil rights issues. In preparing the 2015-16 report, data was collected from every public school and school district in the country. Part of the data collected reveals the disproportionate rate at which students with disabilities are subjected to harsh disciplinary actions in our public schools (see data highlights from this most recent report here). As you read these statistics, keep in mind students with disabilities covered under the IDEA represent only 12% of all public school students.

In the 2015-16 report, students with disabilities covered under the IDEA represent: 

  • • 26% (≈702,000) of the 2.7 million total students who received at least one out-of-school suspension;
  • • 24% (≈28,968) of the 120,700 total students who were expelled; 
  • • 28% (≈ 82,800) of the 291,100 total students arrested and referred to law enforcement;
  • • 66% (≈23,760) of the 36,000 total students subjected to seclusion; and
  • • 71% (≈61,060) of the 86,000 total students subjected to physical restraint. 

To see the data collected from your particular school or district click here.

In light of this report, I wanted to take the opportunity to spotlight the overwhelmingly disproportionate use of restraints and seclusion on students with disabilities in our public schools and the dangerous, sometimes devastating, consequences. 

WHAT DO THEY MEAN BY "SECLUSION" AND "RESTRAINT"?

According to the U.S. Department of Education: 
Seclusion is defined as "The involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving."  It does not include a timeout; which is considered a "behavior management technique" involving the monitored separation of the student in a non-locked setting for the purpose of calming.

Restraint is defined as either physical, chemical or mechanical. Physical restraint refers to "A personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely." It does not include a physical escort which is described as a "temporary touching or holding of the hand, wrist, arm, shoulder or back for the purpose of inducing a student who is acting out to walk to a safe location." Chemical restraint is "the use of medication to control behavior or restrict a person's freedom of movement."
Mechanical restraint involves the use of any device or equipment to restrict a child's freedom of movement. It does not include devices "implemented by trained school personnel, or utilized by a student that have been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as: 

  • • Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports; 
  • • Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;
  • • Restraints for medical immobilization; or
  • • Orthopedically prescribed devices that permit a student to participate in activities without risk of harm."

 (U.S. Department of Education,Restraint and Seclusion: Resource Document, Washington, D.C., 2012.). 

WHAT DO WE KNOW?

In 2009, the US Government Accountability Office (GAO) published a report at the request of the House Committee on Education and Labor regarding cases of death and abuse of children with disabilities resulting from the use of seclusion and restraints in public and private schools. The report revealed that thousands of students in public and private schools are restrained or secluded in an academic year as a disciplinary measure; often in cases where the student is not acting physically aggressive. For example, during the 2007-08 school year, Texas public school officials reported 4,202 students were restrained a total of 18,741 times!! Also included in the report were references to hundreds of abuse and wrongful death claims. Here are a few examples:

  • • In Texas, a 14 year old boy diagnosed with post-traumatic stress disorder died when his 230 lb teacher held him facedown on the floor and laid on top of him for not remaining seated in class. While his death was ruled a homicide, the Grand Jury failed to indict the teacher who now teaches in a public school in Virginia.
  • • In Michigan, a 15 year old boy with autism suffered a seizure resulting in the loss of control of his arms and legs and bladder. He became "uncooperative" so rather than seek medical attention for the seizure, the Assistant Principal and staff placed him in restraints for over an hour resulting in his death. The death was ruled an accident and the administrator is now a principal in the district. 
  • • A 9-year-old boy died at a public charter school after his teacher took him to a “time out” room and restrained him using a “basket hold.” The boy began to make a noise like he was vomiting, then slumped over after being released. The teacher testified that she initially thought he was playing dead and joked with other staffers about planning his funeral.
  • • In Georgia, a 13 year old boy with ADHD hung himself while in a seclusion room with a cord given to him by the teacher to hold his pants up. The boy had been placed in the seclusion room before and had threatened suicide (the Court found the staff's actions did not constitute "deliberate indifference" to the child's well-being!),
  • • In Tennessee, a teacher pled guilty to charges of child abuse, neglect and misdemeanor assault for hitting several children under the age of 6 with a fly swatter, a ruler and using sheets to strap a 6 year old boy with a condition similar to Down Syndrome to a cot and weighing him down with a 5 lb lead vest to keep him from wandering.
  • • In Illinois, a substitute teacher restrained an 8 year old boy with ADHD by tying him to a chair and taped his mouth shut because he wouldn't stay in his seat. Although convicted of unlawful restraint and aggravated battery, the teacher kept his substitute certificate.

You can view the report here.
In a similar, more recent, Senate Health Education Labor & Pensions Majority Committee Staff Report published February 12, 2014, the researchers noted:

  • • There is no evidence that physically restraining or putting children in unsupervised seclusion in the K-12 school system provides any educational or therapeutic benefit to a child. 
  • • The use of either seclusion or restraints in non-emergency situations poses significant physical and psychological danger to students.
  • • There has been a clear shift away from attempting to control students' behavior with aversive techniques in favor of teaching students replacement behaviors through positive behavioral interventions and supports (PBIS)

Despite these facts, the use of these "techniques" persists and the claims of abuse and mistreatment continue to mount. 

  • • In August of 2013, an Arizona teacher used duct tape to restrain a second grader to a chair because she was getting up to sharpen her pencil too frequently.
  • • In November 2016, a 17 year old boy with an intellectual disability in Katy Texas was tased 7 times by a school resource officer for attempting to leave his classroom to take a break, an accommodation provided in his IEP. The incident was captured on the officer's body cam.
  • • In Indiana, a teen was repeatedly left secluded in an unmonitored room for hours at a time during January 2011. On one occasion, he was prevented from using the bathroom and urinated on the floor. As punishment for urinating, he was secluded again in the same room the following day, where he screamed and banged on the door to be let out. When no one came to his aid, he attempted suicide by hanging himself.  He survived.
  • • A sixteen-year-old boy with disabilities in New York did not. He died in April 2012, after being restrained face-down by at least four school staff members for allegedly refusing to leave a basketball court.
  • • In Pennsylvania, parents of 8 children sued the local school district when the Special Education teacher repeatedly hit the children, pulled their hair and tied them to chairs using duct tape and bungee cords. Administrators were aware of the ongoing abuse and did nothing. Although the district settled the matter for $5 million, the District Court dismissed the civil case saying the administrators were not negligent.
  • • Jefferson County Public Schools in Kentucky settled a case for $1.5 million when a child with autism suffered two broken thigh bones after being restrained by a teacher's aide in November 2014. The child spent 8 days in ICU. No criminal charges were filed and the aide returned to work at the same school after a brief suspension.

The 2014 Report also found that in most cases where children are physically or psychologically injured, or even in cases where children have died as a result of using restraints or seclusion in schools, families have little or no recourse; civil or criminal. 
Why? Several reasons are given:

  • • the lack of parental notification and limited access to school records and reliable data to document the use of seclusion and restraints,
  • • the legal hurdles involved in filing and bringing a case to trial,
  • • the difficulty in proving the existence of psychological harm,
  • • the deference afforded to school personnel and the tendency for schools to adopt a “code of silence” at the first sign of trouble with a parent, and
  • • the failure of existing remedies to offer adequate relief.

Even in cases where a family may find relief for their own child, existing laws do not incentivize school districts to change policies and practices. 

WHAT DOES THE LAW SAY?

Currently, there are Federal statutes regulating the use of seclusion and restraint in prisons, hospitals, nursing homes and psychiatric facilities but not in schools. All previous attempts at such federal regulation have failed. In March 2018, President Trump signed a spending bill calling for yet another study on seclusion and restraint data to be conducted by the GAO.
State laws, if they have them, are inconsistent at best. According to Jessica Butler's most recent analysis of State seclusion and restraint laws and policies released in January 2017:

  • • 28 states have laws providing meaningful protections against restraint and seclusion for all children; 38, for children with disabilities
  • • 19 states by law require that an emergency threatening physical danger exist before restraint can be used for all children; 22, for children with disabilities.
  • • There are 19 states that protect all children from non-emergency seclusion; 23 protect children with disabilities.
  • • Restraints that impede breathing and threaten life are forbidden by law in only 27 states for all children; 33 states, for children with disabilities
  • • 20 states ban mechanical restraint for all children; 24 for students with disabilities. 
  • • In 29 states, schools must by law notify all parents of both restraint and seclusion; in 38, parents of students with disabilities. Notification must occur in 1 school day or less in 22 states for all children, and 29 states for students with disabilities. But many states still do not require notification or timely notification.

(http://www.autcom.org/pdf/HowSafeSchoolhouse.pdf, Jessica Butler, jessica@jnba.net)

WHAT CAN WE DO ABOUT IT?

Get involved! Help stop the unnecessary and harmful use of seclusion and restraints in our schools. If your state is one of the 23 that do not have laws providing meaningful protections against seclusion and restraints for all children (Texas, for example), contact your State senator and representatives and urge them to act by adopting legislation prohibiting the use of seclusion and restraint on any student in any public school.

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