Author: Hilary

NYC Courts rule schools have a duty to inform parents when their child is involved in a school fight

 STEPHENSON v. CITY OF NEW YORK

The issue before us is whether NYC schools have a duty to inform parents when their child is involved in a school fight. 
The Facts: Here, the school was aware of a disagreement between two students. On October 22, 2003, Stephenson, a student at Middle School 113 in the Bronx, and Lorenzo McDonald, a fellow student, had a fistfight on the school grounds. Neither boy was significantly injured.  The school directed Stephenson to go straight home so that he would not encounter McDonald again that day. Upon arriving at home, Stephenson did not tell his mother or grandmother, with whom he lived, about the fight with McDonald. The next day, Stephenson was on school grounds when he encountered McDonald, who told Stephenson he was “going to get [Stephenson] jumped.” Again, Stephenson did not tell his mother or grandmother about this threat; nor did he report it to school authorities.
Before school began on the morning of October 24, Stephenson exited a subway station approximately two blocks from the school and saw McDonald across the street. Stephenson entered a store, from which three accomplices of McDonald pulled Stephenson outside to the street where McDonald was waiting. While two accomplices held Stephenson’s hands behind his back, McDonald and the third accomplice repeatedly punched Stephenson in the face for several minutes and fractured his jaw in two places.
Holding: The court acknowledged that a school normally has no duty of care to a student injured off school grounds (see e.g. Norton v Canandaigua City School Dist., 208 A.D.2d 282, 285 [1995], lv denied 85 N.Y.2d 812 [1995]), but found that, while Stephenson was in the school’s custody on October 22, the school breached its duty to notify his mother about the fistfight. By breaching this duty, the court concluded, the school “failed to prevent a further escalation of the incident” and accordingly was liable for Stephenson’s injuries.

New York teachers and school safety officers investigated for not intervening in girls’ beating (by other students) at Bronx prep school

Both teachers and school safety officers are being investigated for standing by and not lifting a finger to stop a bloody brawl in the Bronx.

The fight video, taken at Eximius Preparatory Academy, only lasts a minute. But for any parent who sees their child getting kicked, punched and bitten, the chaos that one minute video feels like a lifetime.

“After I seen the video, I was really destroyed,” the victim’s mother, Tjuana Thomas said. “How could they? I could understand if it was a one on one, but it’s like so many kids just pounding away.”

In the video, Thomas’ daughter is seen standing top on a school cafeteria table when another student leaps up and starts pounding on the 15-year-old sophomore.

They both fall to the floor, and that’s when four more girls jump in, kicking and punching.

“One of the boys at my school tried to pull me off of her,” the girl said. “He tried to stop the fight, but she still had my hair.”

Thomas did not want her daughter to be identified. The teen says she’s been bullied by a group of girls since she transferred to the school four months ago.

She says this fight started because she confronted another student who was bullying her by throwing water on her, and then she was surrounded by a group of girls.

“I got on the table because they were coming around me,” she said. “So they won’t hit me.”

One classmate came to her defense, only to catch the most vicious brunt of the beating. That girl tried to hide under a table, but she was savagely dragged out and kicked and punched in the face.

“I feel happy that she helped me,” Thomas’ daughter said. “But I feel bad that they all jumped on her.”

The controversy is heightened by the video, which shows two NYPD school safety officers walk into the room as the fight starts. But they are not seen at any time trying to break it up.

NYPD officials say school safety agents are supposed to intervene during fights and have the power to make arrests. They’re looking into why this may not have happened.

Three girls were arrested on misdemeanor assault, riot and disorderly conduct charges.

Thomas’ daughter was suspended for five days, but says she will not return to the school.

The Department of Education says that the students are being disciplined and that the matter is being investigated.

Thomas’ daughter says that she didn’t report the bullying because she was afraid.

NYC has a policy of not allowing school staff and teachers to intervene even though this is clearly countrary to the right to defend oneself and another.  Lucky for the girl, the cafeteria staff saved the girl from further being beaten.

Congressman George Miller re-introduces school restraint bill H.R. 1381

Congressman Miller is proposing that for States to receive Federal Education money, they would be required to adhere to the Federal restraints in school bill H.R. 1381 which does not allow the use of restraint or seclusion to be included in a student’s IEP. This was a major point of contention and the reason why the bill did not pass the Senate the last time it was introduced. Read H.R. 1381

HWC’s Comments: H.R. 1381 only addresses the negative consequences of physical intervention.  Nowhere in the bill does it mention that the use of physical intervention prevents injury to the student or others.  There is no dignity in allowing students to injure themselves or others by running into traffic, punching out windows, banging their heads on walls, scratching their faces on carpets and punching assorted individuals in the nose.

According to the Department of Justice statistics regarding school violence are inadequate as they are based on voluntary reporting.  DOJ’s statistics shows the number of violent incidents at school to be about 1 million per year, but DOJ believes the real number is actually 4-5 times that number or 4-5 million violent incidents (if not more) per year.

HWC has submitted comments to Congress.  In one of our attachments, we have asked Congress the following questions:

  1. How can Congress exclude from consideration all of the hundreds of thousands of application of seclusion and restraint which have produced positive outcomes i.e. where students are successfully prevented from injuring themselves or another?
  2. Isn’t it completely disingenuous for the Federal Government to make policies and introduce legislation affecting the safety of its teachers, staff and students with respect to the use of restraint and seclusion when the Federal government has not ever and does not now collect that data?

It would require the same amount of paperwork for the government to monitor the positive outcomes for physical intervention i.e. the number of times physical intervention was used without injury or incident where a student was “saved” from their own or another’s behavior.

Read HWC’s Comments to Congress

Read HWC’s Legal Overview of Restraint In Schools

Congress is currently accepting comments on the proposed legislation.

House Committee on Education and the Workforce (Link to Committee Members)

Committee Fax: 202-225-9571 (majority-R)/ Fax: 202-226-5398 (minority-D)

Congressman John Kline – Ranking Republican Fax: 202-225-2595

Congressman George Miller – Ranking Democrat Fax: 202-225-5609

Senate Revised School Restraint Bill

In December 2009, Representative George Miller and Cathy McMorris introduced the Preventing Harmful Restraint and Seclusion in Schools Act.  The bill passed the House in March.  The senate bill (originally S. 2860) was revised in September, 2010 becoming S.3895  which ultimately stalled in the Senate.

While the bill is “dead,” it is worth noting that the version of the bill the Senate proposed is significantly different from the House bill in that it allows schools to include seclusion and/or restraint in Individualized Education Programs (IEPs).

Current Federal status on the use of seclusion and restraint in schools:

  • No mandatory training for school personnel that use restraint;
  • Highly recommended that school personnel who use restraint be trained in restraint;
  • Restraint and seclusion can be included as part of an IEP or BP; and
  • Standing, seated and floor restraint including face down restraint is permitted.

Unions in the U.K. Want Restraint Training for Teachers

Thousands of teachers in the UK fear chaos in the classroom if the Government goes ahead with plans to give them powers to restrain and search unruly pupils without proper training.

Four out of five teachers surveyed by the Teacher Support Network warn that extra training is essential if they are to get a grip on misbehaviour during lessons and avoid injury and false accusations of abuse when breaking up fights.

Teaching leaders claim that unless the issue is tackled in schools, the problems will continue into adult life. Problems range from name-calling and minor scuffles to homophobic and racist abuse, cyber-bullying and teachers being seriously assaulted. A survey of about 1,000 members of the Association of Teachers and Lecturers (ATL) found that more than half had been confronted with aggression in the classroom in the past year. Almost 60 per cent agreed that behaviour had got worse in the past five years.

The key issue is that teachers are particularly vulnerable to false allegations by pupils,” said a spokesperson from the NASUWT teachers’ union. “This can have a devastating effect on their professional reputation, as well as their personal well-being. “Teachers have a duty of care to pupils which may at times cause them to intervene to protect pupils from harming themselves or other pupils,” the NUT warned. “Many are currently not confident that if they take such action they will be supported by senior leadership teams, parents or the local authority.”

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Daystar Residential Center Restraint

 The type of restraint used at this facility has not yet been released. However the last time Daystar got into a jam it was using the basket hold in the prone position. Even the Feds had the wherewithall to recognize that the basket hold in the prone position is a bad idea.

The GAO in its 1999 Report on Restraint Use in MH Facilities called the prone basket hold the prone wrap. The GAO probably named it this because that’s what NY was calling the restraint under NYS Office of Mental Hygiene. However to most people familiar with common restraint techniques, the technique GAO refers to as the “prone wrap” is the basket hold gone prone.

Putting a client in a basket hold and restraining them face down is a bad idea. As we have been saying, all prone restraints are not equal. Some can be used safely, others are simply not safe. The basket hold in the prone position is an example of a face down restraint that should be avoided at all costs.

The way the basket hold works is that a clients arms are criss crossed over their upper body, chest, torso, abdomen. Staff is positioned behind the client and grasps the client’s wrists. Some agencies like the basket hold because it contains the clients hands so they cannot pinch or grab. The problem with the basket hold is that it is not very stable because the staff’s connection is at an arms length holding the client’s wrists. This gives a lot of leeway to the client to struggle and fight against the restraint. As a result of this dynamic, the basket hold often destabilizes sideways. Now you have staff and the client on the floor on their sides, not very stable, not very comfortable and if the client continues to struggle the staff is going to want to get into a dominant (top) position. When this happens you have a client whose arms are now a criss crossed lever across their abdomen. You don’t even need the weight of the staff person to make this a very dangerous situation.

Moral of the story is, if you are going to use the basket hold make sure staff knows that they have to transition into a different restraint or release the restraint completely if the basket hold destabilizes and goes prone.

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Louisiana House Bill 405 Guidelines for the Use of Seclusion and Restraint

Louisiana passed house bill 405, effective August 15, 2010.  The bill requires the Louisiana State Board of Education to prepare and adopt guidelines for the use of seclusion, physical restraint and mechanical restraint of students with disabilities.  The guidelines to be drafted shall not be inconsistent with law and while centrally drafted shall be locally administered at the discretion of the locality and the public schools, school administrators and programs under its jurisdiction.

Click here for a copy of Louisiana House Bill 405