Today the Feds w ill be issuing recommendations to stop the school-to-prison pipeline encouraging schools to deal with disciplinary infractions internally, rather than involving law enforcement and the criminal justice system.

The Government’s recommendation encourage schools to ensure that:

- school personnel are trained in classroom management, conflict resolution and approaches to de-escalate classroom disruptions.

- there are clear distinctions about the responsibilities of school security personnel.

- schools establish procedures on how to distinguish between disciplinary infractions appropriately handled by school officials compared with major threats to school safety.

We’ve been warning that the laws and rules being passed restricting the ability of teachers and people in direct contact with students to maintain a safe and effective learning environment would result in an increased use of law enforcement and perpetuation of the school-to-prison pipeline. Just look at NYC schools.

New York City Schools have a strict hands off policy for teachers. So rather than schools handling the behavior, law enforcement is called when students (including 5-year-olds) have behavioral issues or emotional meltdowns.

Teachers and school staff need to be trained how to manage a specialized population and need to act diligently and responsibly to ensure that the school is a safe and conducive learning environment. Relying solely on law enforcement and not having access to effective and safe behavior modification measures can create more risk for students and staff. Not intervening when a therapeutic response is called for is not so much prevention of restraint as it is an abdication of adult responsibility.

What is completely ironic is that the restraint-free movement, whose policies and ideology have necessitated the increased use of law enforcement are now calling the manifestations of their own policies ” inconsistent with any notion of how we should be dealing with children.”

In the words of Education Secretary Arne Duncan, when it comes to routine discipline the “first instinct should not be to call 911 when there’s a problem.”

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.

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.

Kentucky Superintendents, Kentucky School Board Association (KSBA) and Kentucky School Districts are highly critical of Kentucky’s proposed restraint and seclusion regulation that still has to pass the legislative review committee.

In the words of the KSBA (whose 170-district membership opposed Kentucky’s DOE’s proposed rule):

“The primary goal of all local public schools and districts across the Commonwealth is to create and sustain positive learning environments for all students. We want all students to both be, and feel, safe in school environments. KSBA and our partners know the primary goal of all public  school educators is to provide high quality educational services preparing all students to be college and career ready. In recent months, some advocates for  children with special needs have questioned whether the use of restraint and seclusion is putting student safety at risk. School administrators, board members, and educators alike do not want any student injured as a result of the use of restraint and seclusion. At the same time, schools have a responsibility to protect the safety of all children in the educational environment. The concerns of school leaders regarding the current regulation proposed by the Kentucky Board of Education boils down to unintended consequences. Any regulation implementing restrictions on restraint and seclusion needs to protect students who may be subject to restraint and seclusion, and also protect the staff and other students who may be impacted. It is for this reason that school boards and school district administrators are asking that the proposed regulation NOT go into effect.

KSBA also pointed out that the proposed restraint and seclusion regulation was based on a “guidance” document containing a clear statement that the document does not represent the positions or policies of the U.S. Department of Education.  It further states that the U.S. Department of Education does not officially endorse the document.  Specifically,

 “No official endorsement by the U.S. Department of Education of any product, commodity, service or enterprise mentioned in this report or on websites referred to in this report is intended or should be inferred. The views expressed herein do not necessarily represent the positions or policies of the Department of Education and no official endorsement of them by the Department is intended or should be inferred.”

 While administrative agencies have the authority to implement policy in accordance with State laws enacted by the legislature; an administrative agency does not have authority to enact substantive law that contradicts actual law and a school’s duty to maintain a safe and effective learning environment through administrative regulation.

It is for this among other reasons that KSBA and its 170 school district membership is currently asking the Kentucky General Assembly to intervene and find the regulation deficient.

In opposition to Kentucky DOE’s proposed restraint and seclusion regulation, KSBA and the law firm English, Lucas, Priest & Owsley, LLP on behalf of 37-member school districts submitted some of the best public policy and legal arguments regarding the legal and practical issues concerning the use of restraint and seclusion in schools.  Anyone interested in this issue including the legality of restraint and seclusion regulations should read their submissions.  These are public comments and can be utilized and distributed accordingly.

Resource Documents:

1. KSBA Comments Part 1; KSBA Comments Part 2
2. Law Offices of English, Lucas, Priest & Owsley, LLP. – ELPO Comments (submitted on behalf of 37-member Kentucky School Districts); Photos of damage done to a classroom, including the destruction of other student’s school papers and assignments.
3. HWC’s Comments; HWC’s Personal Empowerment Kit

Please keep all comments intact and under its appropriate cover or letterhead.

Another Maine school is voicing serious concerns about Maine’s newly enacted restraint policy.

Falmouth Board Member  Chris Murry said he  has concerns about Maine’s new restraint regulations and the higher threshold they establish before school staff can restrain or seclude a student in an emergency. He also called the documentation requirements under the state policy “exorbitant.”

Or, as another board member put it:

Maine’s regulation is modeled after a guidance document obtained from, but not endorsed by, the federal government and language for legislation currently proposed in Congress.  Nonetheless, this regulation contains a multitude of practical implementation problems that will make it extremely problematic for school districts to implement.

More students and staff will be injured, and there may be more serious property damage and significant disruption, than if schools continue under the reasonable restraint standard currently utilized in public schools.  Further, such changes will require public school districts  to spend more money for less effective interventions than are currently utilized, and many students will have to be placed in more restrictive learning environments in order to protect students, staff, and others from physical harm.  Also, under the regulation, that expense may have to totally be paid from State  financial coffers, as the  regulation does not allow for any planning on how to safely restrain or seclude special education students to be written into special education student programs (IEPs).

Further, we additionally are concerned that the prohibitions on planning for safe restraint and seclusion in an IEP document may violate federal law.  Historically, courts have held that in certain anticipated serious misbehavior situations, restraint of special education students should be planned by the same team of qualified professionals that plans for all of the child’s specialized education needs.

This is an example of good intention leading to bad choices that, unfortunately, will have a detrimental effect on both staff and student.

Other Schools Criticizing Maine’s Restraint Regulations