In 2018, news struck the country that a thirteen-year-old Autistic student, described as having a "sweet demeanor," died after school officials employed by California's Davis Joint Unified School District held him in a restraint position for approximately one hour until he became unresponsive. Later on, in 2022, similarly devastating news broke that another Autistic student enrolled at a school for students with disabilities located in Fort Worth, Texas, died after being chased down and physically restrained by school staff. While news of restrained-caused or seclusion-caused student deaths is rare, they are shockingly devastating and unacceptable.
As parents, when we drop our students off at their schools, we want to trust that they are safe. Unfortunately, many schools across the country do not always employ proper tactics to respond to the unique behavioral needs of their students. This is increasingly true for students enrolled in special education programs with conditions such as Autism Spectrum Disorder or Down Syndrome and students with Emotional Disturbance Disorders such as Oppositional Defiant Disorder or Post Traumatic Stress Disorder. Although these students are legally entitled to appropriate support and interventions tailored to their individual needs, school districts often apply a one-size-fits-all approach and resort to using generic "restraint" and "seclusion" tactics to de-escalate their students, resulting in students' inability to access their educational materials.
But where do we draw the line? What rights do parents have when their students return home from school covered in bruises and fearful of their educators? And most importantly, what has the Department of Education recently done to respond to these instances of abuse?
Restraint and Seclusion Defined
The terms "restraint" and "seclusion" are specifically defined within The United States Department of Education's Codes and Policies. The United States Department of Education (the "Department") instructs districts that "every effort should be made to prevent the need for the use of restraint and seclusion and that any behavioral intervention must be consistent with the child's rights to be treated with dignity and to be free from abuse." In other words, although the Department defines when and how Districts are permitted to restrain or seclude their students, they emphasize that districts may only use these tactics as a last resort and only when faced with life-threatening emergencies.
What Is Restraint?
In response to a growing number of claims, The Department's Office of Civil Rights ("OCR") launched an official investigation into the use of restraint and seclusion policies in public schools across the United States. This investigation culminated in an official process referred to as the Civil Rights Data Collection ("CRDC"). Within the CRDC publication, The OCR currently provides guidance to states and local districts by defining key terms related to restraint and seclusion tactics. The OCR categorized restraint as either "physical restraint" or "mechanical restraint."
Physical Restraint
The CRDC defines physical restraint as follows:
"Any personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort. Physical escort means a temporary touching or holding of the hand, wrist, arm, shoulder, or back to induce a student who is acting out to walk to a safe location."
Mechanical Restraint
The CRDC publication defines mechanical restraint as follows:
"The use of any device or equipment to restrict a student's freedom of movement. This term does not include devices implemented by trained school personnel, or utilized by a student that has 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…."
The CRDC goes on to clarify that devices that do not fall under the umbrella of mechanical restraint may include:
- Adaptive devices or mechanical supports to achieve proper body position, balance, or alignment, such as crutches or braces.
- Vehicle safety restraints such as seatbelts.
- Other orthopedic-prescribed devices;
When Can A School District Use Restraint Tactics on My Child?
While restraint-caused deaths may be rare, restraint-caused bruising is not. It's not uncommon to speak to special-needs parents who see their children return home from school covered in bruises and scared of their educators. For instance, one St. Louis family reported that their special-needs son was physically restrained 75 times in 4 years. Parents fearing that their local districts may be inappropriately applying restraint tactics must first understand when restraint is allowed but should also trust their parental intuition if they feel their child is being harmed at school.
According to guidance issued by the Department, any form of physical or mechanical restraint must be used in a manner consistent with a state's laws and regulations as well as any other applicable federal laws. In the limited circumstances where districts are allowed to use restraint, the law makes it clear that restraint should only be used when there is an "immediate threat of harm" to the student or others. School districts must also attempt to try other less restrictive interventions that are ultimately deemed ineffective or inappropriate before resorting to restraint.
Some examples of permissible restraint may include:
- Briefly holding a student's arms when they are acting violently or aggressively could cause injury to themselves or others.
- Guiding a student by the elbow to redirect them, such as when walking down a hallway or leaving a classroom.
- Briefly restraining a student who is engaging in serious, severe, and repeated self-injurious behavior such as hitting themselves.
It's important to note that in all these examples where restraint may be permissible, the focus is on the student's safety and would not otherwise be appropriate for mere disciplinary purposes. Similarly, although other de-escalation tactics may require more time and effort from district staff, restraint should never be used simply because it is "more convenient."
Some examples of impermissible restraint tactics might include:
- Employing techniques or positions that restrict a student's ability to breathe or communicate, such as face-down restraints, chokeholds, or pressure to a student's chest or neck.
- Unnecessarily prolonged restraints, such as restraining a student after they have calmed down or after assistance has arrived.
- Restraints conducted by untrained or unqualified staff who have not been appropriately trained by their school districts on the appropriate techniques to use.
- Use of excessive force, such as sitting on a student's back or chest.
What is Seclusion?
Contrary to restraint which physically impedes a student's movements, seclusion typically involves efforts from staff members to isolate students from others while they are at school. Seclusion is dangerous because it places students at an increased risk for serious harm. After all, they are left alone and/or cannot access appropriate care. The CRDC publication defines seclusion 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 a behavior management technique that is part of an approved program, involves the monitored separation of the student in a non-locked setting, and is implemented to calm." Some impermissible examples of seclusion may include:
- Leaving the student locked alone in a room.
- Leaving a student locked alone in any part of a building or specific area on campus.
- Locking a student inside any type of container, closet, etc.
- Leaving a student alone with no understanding of how they will leave and no supervision, even if they are not technically locked in anywhere.
Some permissible examples of seclusion may include:
- Secluding a student who poses a serious and immediate threat of harm to other students, such as when they are seen with a weapon.
- Briefly secluding a student who needs to regain control over their emotions when they are overwhelmed so they are not embarrassed and their privacy is protected.
- Seclusion tactics that an IEP team have implemented as part of a student's behavior management plan provided that they are conducted appropriately.
The Fifteen Principles of Restraint and Seclusion
The information collected from the CRDC was so varied and concerning that the Department felt they needed to provide articulate guidance to educators, administrators, and parents on the appropriate use of restraint and seclusion techniques. These guidelines resulted in the Department's drafting of "15 Principles" that aim to prevent the misuse of restraint and seclusion in schools, particularly for students with disabilities who may be more vulnerable to these practices. These principles are summarized as follows:
- should seek to employ efforts to prevent the need for and the use of restraint and seclusion.
- should never resort to using mechanical restraints to restrict a student's "freedom of movement." If mechanical restraining is administered, schools should never use drugs or medications to control behaviors or restrict freedom of movement unless the medication is administered by an appropriately licensed medical professional.
- should only resort to using physical retraining or seclusion in instances where a student poses "imminent danger of serious physical harm to self or others and other interventions are ineffective." In such instances, the use of restraint and seclusion should stop as soon as the risk of imminent danger or serious physical harm ceases.
- policies regarding restraint and seclusion apply to all students, regardless of whether they are enrolled in special education or not.
- school's use of "behavioral intervention" should be consistent with the student's "right to be treated with dignity and to be free from abuse."
- and seclusion should never be used in a disciplinary manner or "as a means of coercion, retaliation, or as a convenience.
- districts should never use restraint or seclusion in such a manner that a student's ability to breathe is affected or in such a manner that they are harmed.
- an employee frequently resorts to using restraint or seclusion on a particular student or within the same classroom, this should "trigger a review" of the employee's actions to address any dangerous behaviors. If a school does not have "positive behavioral strategies" in place for a particular student or classroom, staff should consider developing them."
- behavioral strategies a school develops should address the underlying cause or purpose of the dangerous behaviors.
- and schools should ensure that teachers and staff are regularly trained on the appropriate use of "effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports." Personnel should further be regularly trained on identifying the limited scenarios where it would be appropriate to safely use physical restraint and seclusion.
- physical restraint or seclusion is administered, it should be "carefully and continuously" and "visually monitored."
- have the right to be and should be informed on policies regarding restraint and seclusion, including policies drafted by their student's school as well as other "applicable Federal, State or local laws."
- should be "notified as soon as possible" after every instance in which their student was restrained or secluded.
- and seclusion policies should be "reviewed regularly and updated as appropriate."
- developed should include a provision indicating that every incident requiring the use of restraint or seclusion will be documented in writing and made available to teachers and staff for better understanding and implementing the "preceding principles."
What Data on Restraint and Seclusion Has the Department Of Education Recently Collected?
CRDC efforts require time, effort, and a great deal of funds. To ensure that the data they collect is processed in a coherent and streamlined manner, The OCR submits a request for public comment to the Federal Register as well as a form referred to as the "CRDC Information Collection Request Package." While the Department does not submit these requests on an annual basis, The OCR tries to conduct routine collections to ensure that the Department has an adequate snapshot of the various policies and methods used by school districts across the county. The Department then uses this data to adjust or draft policies, regulations, and funding.
According to a press release published by the Department of Education in November of 2021, The OCR submitted a package request to the Federal Register to collect data from districts across the country. The OCR indicated that they intended to use this information to "introduce new data categories" and better understand students' educational experience. Although requests for data can vary from year to year, the request only included four areas of interest, one of which included data that would be used to make "revisions to the restraint and seclusion definitions." The OCR indicated that the additional data collection would allow the Department of Education to address "inequities in educational opportunities" and ensure that school districts receiving financial assistance "do not discriminate based on race, color, national origin, sex or disability."
The OCR's request specifically sought to gather the following data:
- The number of non-IDEA K-12 students (general education students not receiving any special education services) subjected to restraint or seclusion.
- The number of IDEA (special education) K-12 students subjected to restraint or seclusion.
- The number of non-IDEA general education K-12 students subjected to mechanical restraint, physical restraint, and seclusion disaggregated according to their race, sex, nonbinary classifications, and disabilities falling under Section 504 of the IDEA.
- The number of IDEA (special education) K-12 students subjected to mechanical restraint, physical restraint, and seclusion disaggregated according to their race, sex, and nonbinary classifications.
Although the Department of Education has yet to release its official findings from the Data Collection, the fact that the OCR included restraint and seclusion as one of the four areas of interest is promising to say the least. The data will help the Department better understand what states, districts, and schools have put in the effort to develop appropriate restraint and seclusion policies and what districts have failed to do so - likely signaling a cause for concern for students within these districts.
An Agreement Between the Department of Education and a California School District Signify Hope
Earlier, we addressed the tragedy of the thirteen-year-old Autistic student who died as a result of improper restraint used by staff at Davis Unified Joint School District (the "District") located in Davis, California. The catastrophe launched a full-scale investigation by the Department as well as California's Department of Education into the District's use of restraint and seclusions and revealed that the District had acted similarly in the past. In a press release dated December 7, 2022, the Depart announced that they had entered into a resolution agreement with the District and determined that the District had violated the rights of students with disabilities.
Specifically, the Department found that the District failed to ensure that staff members making decisions about student placements had carefully considered and obtained information about the use of restraint and seclusion at schools. The Department further found that the District had failed to ensure that their District staff were knowledgeable about specific behavioral interventions certain special-needs students required and further failed to reevaluate whether students frequently exposed to restraint and seclusion methods had access to free and appropriate public education.
The OCR also took note of the District's failure to document every incident of restraint and seclusion, raising concerns that parents clearly did not have access to this information.
The Settlement Agreement
In response to the investigation, the District agreed to make "comprehensive changes to its policies and procedures" and to ensure staff were adequately trained on proper techniques of restraint and seclusion. The District further agreed that "none of its students would be placed in nonpublic schools until their staff was trained on the applicable policies. The District also promised to host Individualized Education Program ("IEP") meetings for students found to be improperly restrained or secluded and to work with their families to provide compensatory services. Finally, the District agreed to conduct a further internal review of its own special education records with an emphasis on identifying any district staff who failed to implement appropriate responsive remedies.
The Department's recent investigation and settlement with the District signal an important step towards additional oversight and review by the Department that will hopefully trigger policy reforms and training from school districts across the nation, hoping to avoid a similar tragedy. Many school districts across the country are considering outlawing restraint and seclusion altogether, an important step for disability equality.
Should I Consider Legal Assistance If My Student Has Been Subject to Restraint or Seclusion Tactics At School?
Although many states are currently working on revamping their policies on the use of restraint and seclusion tactics in public schools, your student's rights can be violated by school districts that still permit these practices or by educators who simply refuse to follow the law. If your child has been subjected to repeated or unjustified use of restraining and seclusion tactics, the school's response tactics have crossed into abusive territory. If restraint or seclusion tactics are so forceful or so frequent that they impede your child's emotional safety at school or their ability to regularly participate in classroom activities, the school has also gone too far. National Attorney-Advisor Joseph D. Lento and the Lento Law Firm Education Law Team can help by:
- Conducting a thorough investigation into the incident(s) by reviewing relevant documentation, speaking with witnesses, and examining the school's policies and procedures.
- Advocating for your child's rights by ensuring that your child's school treats them in accordance with federal and state laws, such as the Individuals with Disabilities Education Act ("IDEA") or Section 504 of the Rehabilitation Act.
- Pursuing legal remedies such as filing a complaint or advocating for policy changes within the school and District.
- Seeking compensatory services if your child's education has been significantly impacted by a school's use of restraint and seclusion tactics.
Contact The Lento Law Firm Education Team Today
If your child has been subjected to restraint or seclusion tactics at their school, contact the experienced Lento Law Firm Education Law Team today. Our deep understanding of education law and proven track record demonstrates our commitment to achieving positive outcomes for our clients. We also understand that restraint and seclusion tactics can take an emotional toll on your student and your entire family! We offer compassionate advocacy and support every step of the way, ensuring that your concerns are heard and that your child's best interests remain at the forefront of all our conversations. Contact us today for a consultation by calling (888) 535-3686 or use our online contact form to tell us about your case.
