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
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.
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.