In December 2016 Catherine E. Lhamon, Assistant Secretary for Civil Rights, for the Department of Education Office of Civil Rights issued a Dear Colleague letter to provide guidance on how restraint and seclusion in schools can spur discrimination against students with disabilities, and recommendations for how educators and staff might approach discipline. In the letter OCR’s role is explained as it pertains to protecting civil rights of children with disabilities.
OCR enforces Section 504 and Title II in schools and both Federal laws prohibit disability discrimination. Section 504 prohibits disability discrimination by recipients of Federal financial assistance. OCR has Section 504 enforcement authority over entities that receive Federal financial assistance from the Department, including all public schools, school districts, public charter schools and magnet schools. Under Section 504, recipients of Federal funds from the Department that operate a public elementary or secondary education program or activity must provide students with disabilities equal educational opportunities, including needed regular or special education and related aids and services that are designed to meet the needs of students with disabilities as adequately as the needs of students without disabilities are met.
The Office of Civil Rights made it clear that OCR would likely not find the repeated use of restraint and seclusion to be a justified response where alternative methods also could prevent imminent danger to self or others. The OCR letter offered guidance that 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.
“For example, the use of restraint or seclusion may have a traumatic impact on that student, such that even if she were never again restrained or secluded, she might nevertheless have new academic or behavioral difficulties that, if not addressed promptly, could constitute a denial of FAPE.”2016 Dear Colleague Letter from the Office of Civil Rights
In January of 2019, U.S. Secretary of Education Betsy DeVos announced that the U.S. Department of Education will launch an initiative to address the possible inappropriate use of restraint and seclusion in our nation’s schools. The Office for Civil Rights (OCR), in partnership with the Office of Special Education and Rehabilitative Services (OSERS), will oversee this proactive approach which will protect students with disabilities by providing technical assistance and support to schools, districts, and state education agencies, and strengthen enforcement activities.
If you believe your child has been secluded and/or restrained in a way that violates their civil rights you should consider filing an OCR complaint.