Overview of Laws governing Restraint and Seclusion in Schools

Handle With Care has been providing training for school staff on how to manage student populations from pre-k12 since 1985.

There is generally a divide in schools between special education and general education with respect to behavior management and crisis intervention. The use of restraint in both general and special education are governed by 4 main bodies of law:

  • Self Defense Laws: Federal, Constitutional and State laws protecting the right to defend self and others.  Ingram v. Wright (SCOTUS). The State does not have the right to limit a person’s right to defend themselves or another in any manner that is reasonable.  Bowers v. DeVit. The Supreme Court of the United States (SCOTUS) ruled that the right to self-defense does not terminate when a teacher or student enters the schoolhouse gates. See also, Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 506 (1969)
  • Tort/Common Law: Courts have held that schools act in the place of parents (in loco parentis).  As such, schools have a duty to maintain a safe environment conducive to education.  Along with this doctrine comes a duty to train staff to handle foreseeable circumstances. It is foreseeable that children will lose their tempers and may engage in inappropriate behavior like fighting and throwing objects.  There is a duty to train staff how to manage these foreseeable situations in a way that maintains a safe environment conducive to education.
  • Treatment and Behavioral Plans (IEPs/BPs).  This is the duty to provide professional judgment in developing educational and treatment plans.  The Supreme Court has held that the professional duty rests exclusively with the professionals working directly with the [students]. Youngberg v. Romeo. 457 U.S. 307 (1982).

In addition to the above, special education students have the additional Federal laws that must be complied with:

  • Americans with Disability Act (ADA), Individuals with Disabilities Education Act (IDEA), and the Rehabilitation Act Section 504 (504).
    • The laws specific to special needs students protect their right not to be discriminated against because of their disability, and the right to a free and appropriate public education (FAPE) which includes IEPs.

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TN. Multimillion dollar suit filed against school for failure to protect, bullying, assault and battery

The court-appointed guardian of a 16-year-old Washburn School student has filed a $30 million dollar lawsuit against more than a dozen parties.

The case, filed last month by the victim’s court-appointed guardian, Katherine Parks, said the then 15-year-old was brutally attacked by four classmates, leaving her with injuries to the face and head, it said.

Parties in the suit named include director of schools Edwin Jarnagin, the Grainger County Board of Education, and all the named attackers’ families.

The suit says one of the four classmates confronted the victim, identified as “SL,” hit her head on a metal pole several times, and then the other three girls kicked and punched the victim several times.

“While this beating was going on, S.L. remembers seeing a teacher walk by. The teacher took no action to stop the assault on S.L. or to help her in any way,” the suit said.

After the victim’s foster mother picked the girl up to take her to a hospital, she spotted an ambulance and stopped for help. The suit added “The workers at the substation examined S.L., determined her condition to be one of life and death…”

The severity of the injuries is reason why, according to lawyers from the plaintiff at the Vogel Law Firm, so much and so many people were named in the suit.

“We send out kids to school not to fail to be protected — to go and to learn and have a positive experience,” said associate attorney Rosie Brown. “If teachers and administrators and other school supervisors are turning a blind eye to situations that could lead to an incident so serious as this, then there’s something that needs to be done about that.”

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MI. Michigan courts give teachers right to sue if school system fails to discipline students who are safety risks

The Michigan Supreme Court overturned a 2001 decision and loosened the standard for people who want to file some civil lawsuits.

The decision gives teachers the standing to take legal action when schools intentionally disregard or are deliberately indifferent to the unsafe conditions in the classroom.

The standard of deliberate indifference applies to both inadequate
training and inadequate supervision. It requires evidence that the school knew of a safety risk and failed to train, supervise or effectively discipline in a particular area. Now schools can be held liable by teachers for turning away from a situation that should have been addressed.

In a 4-3 ruling, justices said Lansing teachers had a right to sue the school district over how it disciplined students. The case trumps a series of opinions over the last decade that had restricted the ability to go to court in a variety of disputes unless someone could show an actual injury.

“By reinstating the decades-old precedent … we are restoring, not departing from, the fabric of the law and this court’s fidelity to the Michigan Constitution,” Justice Michael Cavanagh wrote in an opinion released Sunday night.

Four teachers and their union, citing state law, sued the Lansing School District, saying it should have automatically expelled four students, not suspended them, for violence. They were accused of throwing chairs at teachers, slapping one and striking another in the face in 2005 and 2006.

Lower courts ruled against the teachers. They said school boards had discretion in how to handle students and teachers had no standing to sue.

The Supreme Court did not rule on the merits of the case. But the majority said teachers have a “substantial interest” in how the district follows the law regarding student discipline.

“The [law] is intended to not only make the general school environment safer but additionally to specifically protect teachers from assault and to assist them in more effectively performing their jobs,” Cavanagh wrote.

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KY- Legislation Alert. Kentucky Department of Education Passed a Regulation On Use of Physical Restraint and Seclusion In Public Schools

Kentucky Department of Education passed regulation 704 KAR 7:160: Use of Physical Restraint and Seclusion in Public Schools.

This regulation requires all schools staff using restraint be trained in restraint.

History of 704 KAR 7:160

On December 17, 2012, the Kentucky Department of Education (“DOE”) passed a regulation governing the use of physical restraint and seclusion in public schools.  The requirements of the new regulation went into effect on February 1, 2013.

Prior to enactment, the regulation was subject to public comment. HWC was one of the entities that submitted comment on the proposed regulation.  Other commentators who opposed the initial regulation included the Kentucky School Board Association (KSBA) and attorneys representing 37 school districts in Kentucky (among others).

As we pointed out during the comment period, DOE’s initial regulation was in direct conflict with many laws including several Kentucky Statutes.

In the hierarchies among legal authorities, the Constitution supersedes Federal Legislation;  Federal legislation supersedes State Legislation, and case law and State statute supersede State regulations.

As a result of HWC’s (and other’s) efforts, DOE revised its restraint regulation and made it subject to (rather than in conflict with) Kentucky laws and statutes.  Specifically,

  • The regulation prevents the use of restraint and seclusion for property damage, except  as permitted under KRS Chapter 503;
  • Physical restraint can be used when the student’s behavior poses an imminent danger of physical harm to self or others, and as permitted under Kentucky Statutes: KRS 503.050, 503.070, and 503.110.

Handle With Care’s program fully complies with Kentucky DOE’s restraint and seclusion regulation. 

For more information about Kentucky’s new regulation or HWC’s training, please contact us.

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Ohio. ODE passes non-binding policy on the use of restraint and seclusion in public schools

On January 15, 2013, the Ohio DOE (“ODE”) issued policy regarding the use of restraint and seclusion in Ohio public schools.

The recommended restraint and seclusion policy that ODE passed is entitled “Policy on Positive Behavior Interventions and Support, and Restraint and Seclusion.”  This recommended policy, if followed by schools, would unlawfully limit an employee’s right to defend self and others, and the school’s ability to use restraint and seclusion as part of an IEP, BP, prevent property destruction or for educational or classroom disturbances.

Ohio laws violated by ODE’s restraint and seclusion policy, if followed by schools

POINT 1:

ODE’s restraint and seclusion policy unlawfully restricts educators right to use reasonable and proportionate force in defense of self and others in accordance with a “reasonable person” standard.

 Law Violated: Constitution of the State of Ohio

Article 1 states “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

Article 2 states “The limitations expressed in the constitution, on the power of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws.”

Comment: Administrative policy is supposed to be interpretive of a statute or regulation.  ODE restraint and seclusion policy is based on an executive order.  This is not a legal authority upon which to base policy affecting non-state i.e. local schools, entities.

Further, ODE’s policy conflicst with Executive order 2009-13S.  Specifically, Executive Order 2009-13S defines prone restraint as meaning physical or mechanical restraint while the student is in the face down position for an extended period of time.  In contrast, 3301-15-35 (A)(8) prohibits the use of prone restraint in its entirely.  This is problematic as ODE is an administrative agency  and bound to follow Executive Orders.  In this instance ODE’s policy conflicts ODE’s own Executive Order.  ODE does not have the legal authority to do this.

Comment: ODE’s policy, if followed by schools, unlawfully infringes upon a school employee’s legal and Constitutional right to defense of self and others including another child or adult in Ohio using reasonable and proportionate force in accordance with a “reasonable person” standard.  Pursuant to Article 2 of Ohio’s Constitution, any policy that does so is automatically void

Comment: It becomes a real mess for schools when the administrative agencies of the State issue policy or regulation that conflicts with actual statutory, case and constitutional law.  It puts schools and educators between a rock, the actual law, and a hard place, the policy of the administrative agency.  If schools follow the administrative agency’s policy, they run afoul of the law.  If schools follow the actual law, they run afoul of the administrative agencies policy or regulation.  To resolve this conflict, schools have to use taxpayer monies, better used to educate students, to challenge, litigate and nullify a policy or regulation that the administrative agency had no authority to implement in the first place.

POINT 2:

ODE’s restraint and seclusion policy unlawfully restricts educators from using restraint and seclusion to manage destructive, damaging and out-of-control behavior

Law Violated:  Ohio Case Law

State v. McLeod (1948), 82 Ohio App. 155, 157.   “(E)very man has the right to defend himself and his property.”

Comment: ODE’s unlawfully advises schools and educators to implement a policy that prevents personnel from physically stopping a student from destroying educators’, school or another student’s property.  Ohio’s Constitution states that every person has the right to defend themselves and their property.  Thus ODE’s policy, if followed by schools, violates both Ohio’s state constitution and Ohio court rulings.

Law Violated: Ohio Statutes and Common Law (Tort)

Under the common law doctrine of in loco parentis, when students arrive at school, school personnel assume certain rights and duties with respect to these children.

Two Ohio Statutes that enumerate some the rights and duties of parents, educators assume when students arrive at school, can be found at Ohio Code Sections 2151.022 and 2151.05.

Comment: ODE’s restraint and seclusion policy advises schools to prohibit the use of restraint and seclusion from a behavior management plan in instances where there is no risk of imminent physical harm. This is unlawful as the duty to treat, educate, supervise, manage, etc. belongs to the school, educators, parents/guardians and treatment team working directly with the student.

The American Association of State Administrators (“AASA”) Agrees

 ”AASA has long opposed the prohibition of seclusion and restraint in public schools. . . .

IDEA was never meant to restrict parents from receiving a unique, effective education plan for their child: For these students, legislation or state policy that prohibits these practices from being written into an individualized education plan (IEP) or behavioral intervention plan means that school personnel are unable to work with parents to create a plan for coping with the student when their behavior becomes unmanageable. Legislation or policy that prohibits parents and school personnel from communicating about the student’s needs and corresponding school interventions runs counter to the entire purpose of the Individuals with Disabilities in Education Act (IDEA).”

Contact us for a copy of HWC’s full commentary to ODE.

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