Restraint & Seclusion: Federal Data Highlights Continued Impact on Students with Disabilities
In June of 2019, we published an article that reviewed basic facts about restraint and seclusion of students with disabilities in New Jersey. That article responded to questions from parents and teachers who asked our team about whether restraint was ever “legal” under New Jersey law. As we explained, in some circumstances, set forth in the law, New Jersey does permit restraint of students. The law requires specific documentation and response to all incidents. In addition to the New Jersey law, it is important to be aware of the strong guidance from the federal government about the use of restraint and seclusion for students. Federal law and policy guidance makes abundantly clear that improper use of restraint and seclusion violates civil rights laws that protect students.
This update offers a very broad overview of some of the guidance on restraint and seclusion that the federal Office for Civil Rights (OCR) and United States Department of Education (USDOE), Office of Special Education and Rehabilitation Services (OSERS) has issued since January 2019.
In January of 2019, the OCR launched ramped-up efforts at curbing the use of restraint and seclusion through (it said) increased compliance monitoring, data collection and technical assistance to school districts: https://www.ed.gov/news/press-releases/us-department-education-announces-initiative-address-inappropriate-use-restraint-and-seclusion-protect-children-disabilities-ensure-compliance-federal-laws
On January 9, 2020, OCR published a webinar on the use of restraint and seclusion in schools:https://www.youtube.com/watch?v=EZ9Yx0LC8TI&feature=youtu.be. The free, on-line webinar sets forth the key definitions related to restraint and seclusion, and offers an overview of how students are protected from restraint and seclusion under federal law.
Some key points from the webinar include:
Improper use of restraint is a violation of federal civil rights laws that protect students.
Where a student exhibits behavioral difficulties in school, educators should evaluate a student’s needs to confirm whether the student has a disability or needs additional intervention and referral.
The OCR and OSEP presume that if a Free Appropriate Public Education (a “FAPE”) is in place, a student’s behaviors will be properly supported and minimized, eliminating any need for restraint.
Thus, where a student continues to exhibit behaviors that disrupt their learning or that of others, school personnel must change the support strategies being used. This issue is further discussed in other federal guidance, including in a 2016 “Dear Colleague Letter.” That guidance states: “For a student already identified as a student with a disability, a school’s use of restraint or seclusion could be evidence that the student’s current array of regular or special education and related aids and services is not addressing the student’s needs.” (See page 11).
This on-going obligation to evaluate, address and adjust strategies being used to support students is also emphasized in the NJ state guidance, Restraint and Seclusion Guidance for Students with Disabilities.
Most recently, on October 15, 2020, the United States Department of Education issued a brief on the 2017-2018 restraint and seclusion data. Based on the data, 80% of the students subjected to restraint and seclusion were students with disabilities under the Individuals with Education Act (IDEA). This staggering statistic confirms the need for continued, increased oversight, data collection and an emphasis on training for all stakeholders.
As explained by the OCR:
“[The data] illustrate that students with disabilities (served by IDEA) are treated far more harshly than their peers without disabilities; for example, they are twice as likely to receive an out-of-school suspension (13%) as are students without disabilities (6%)….They are also 75% of students physically restrained at school and make up 25% of students arrested and referred to law enforcement.”
For additional reading and detailed federal guidance on restraint and seclusion, you can refer to the 2016 Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities.
Another great resource for research and information is the website for The Alliance Against Restraint and Seclusion.
We welcome your comments, questions and concerns about this topic. Contact us directly at firstname.lastname@example.org or call our office at 856-642-6445.
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This material is for educational purposes only; it does not provide legal advice. Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.