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.