The following is a paper written by Jane Hodell as a seminar paper for a disability justice course at the Saint Louis University School of Law.
Introduction
Federal data indicates in the United States, upwards of 100,000 students are restrained and secluded (R&S) every year in public schools. The purpose of R&S is to manage disruptive behavior and is intended to be used in situations that involve imminent danger of serious physical harm to the individual or others. In schools, R&S is used as a form of crisis management for situations involving imminent danger or serious physical harm. However, R&S is used beyond stated guidelines, is misused, abused, and overused, with research pointing to R&S having the opposite intended therapeutic effects. R&S does not de-escalate situations but rather leads to superficial compliance, increased misbehavior, and harmful physical and psychological effects on the child and provider. Children have been physically injured, psychologically traumatized, and have died due to the misuse of R&S in schools. Furthermore, R&S practices are disproportionately used on children with disabilities, children in elementary school, boys, and black and Hispanic students. Data suggests four out of five students who experience R&S are children with disabilities.
The federal government recognized the harmful physical and psychological impact that R&S has on individuals and implemented federal laws to regulate when and how R&S can and should be used in medical settings. This federal law has not been extended to school use of R&S even though members of Congress acknowledge the dangers, misuse, abuse, and lack of documentation of the practice by states. Since 2009, Congress has attempted to pass federal acts to create a national minimum practice standard addressing, preventing, and reducing R&S in schools; however, a lack of bipartisanship has prevented these bills from passing. Republicans continue to opt to leave R&S policies up to state control resulting in inconsistencies and wide variations in regulations between states.
“It should not matter in which state you live – all children deserve to be safe in school.” R&S in schools is used beyond the intended purpose and incorrectly. The federal government not only needs to strengthen protection under disability rights laws by amending the ADA to specifically address R&S in schools but also needs to think more broadly for all students by creating a federal law protecting all children from R&S in schools. Without amendments and a new federal law exclusively regulating the use of R&S in schools, children will continue to be physically and psychologically harmed.
To demonstrate how amendments to current federal laws and a federal law specifically addressing R&S can achieve safety in schools for all children, I will begin by discussing the factual and legal background behind R&S. Next; I will analyze how current federal laws do not protect children and specifically violate civil rights under Title II of the ADA, Section 504 of the Rehabilitation Act, and the IDEA. Then I will analyze why R&S should be examined through a human rights lens. Finally, I will propose recommendations that would help ensure all children are safe in school. This will be through proposing amendments to current federal laws that specifically address R&S, the need for a federal law exclusively addressing R&S and other ways the United States can protect children, such as adopting the Convention of the Rights of the Child and changes to the educational system. By implementing these recommendations, I believe all children will be safer in schools.
Factual Background
The Definition of Restraint and Seclusion In Schools
The Office of Civil Rights (OCR) defines restraint in schools as the act of “restricting the student’s ability to move his or her torso, arms, legs or head freely.” Restriction can be physical, a personal restriction to immobilize, mechanical, or through equipment or a device. The OCR defines seclusion in schools as “confining a student alone in a room or area that he or she is not permitted to leave.” R&S practices have been used as a method to de-escalate, calm, and protect both the student and others. The use of R&S has been regulated in medical settings and facilities. The same is not true for schools. The lack of a federal regulation regarding R&S in schools has led to use beyond its intended purpose and incorrect use.
The Theory Behind Restraint and Seclusion Practices
R&S is extremely controversial. The theory behind R&S is to de-escalate, gain cooperation, and prevent injury, with the goal of R&S being a tool to create a safer and more secure environment. Proponents of R&S view the practice as necessary to protect the individual and caregiver, while opponents believe R&S psychologically traumatizes both the individual being restrained or secluded as well as the caregiver performing the restraint or seclusion. Brain science and personal experiences from students subjected to R&S support the latter view indicating R&S causes post-traumatic stress disorder and fear and distrust of authority figures. Psychiatric literature indicates individuals can respond to R&S with terror and rage. Individuals feel stripped of their humanity and overpowered. How Restraint and Seclusions In Schools Started – The History Schools’ use of R&S began in the 1950s when the United States shifted towards more inclusive practices in education, healthcare, and other sectors. Prior to the 1950s, adults and children with disabilities were housed in restrictive institutions and denied access to public education. After the 1954 holding in Brown v. Board of Education, which held segregation in schools unconstitutional, disability rights advocates began to fight for the disabled community and the abuse suffered by adults and children living in restrictive institutions.
In 1975, children with special needs were integrated into schools under the Education for All Handicapped Children Act, later known as the Individuals with Disabilities Education Act (IDEA), a milestone for disability rights. Laws make positive changes; however, they also carry unforeseen consequences. Schools now serve children with disabilities with little knowledge of what to do. School settings emphasize order, compliance, and corporal punishment which resulted in schools adopting R&S practices intended for medical and psychiatric settings.
Issues Behind Restraint and Seclusion in Schools
Abuse, Misuse, and Overuse
The U.S. Department of Education (DOE) released guidelines stating R&S should only be used when the risk of serious and imminent physical harm or injury is evident. A 2010 report issued by the U.S. Department of Health and Human Services (HHS) found the guideline was abused, and data indicated the majority of R&S use was when there was no imminent harm or injury resulting in abuse, misuse, and overuse. This abuse continues today. “The decision to apply R&S techniques is often arbitrary, idiosyncratic, and generally avoidable.” Behaviors that most commonly lead to R&S were “loud, disruptive, noncompliant behavior and generally originate[d] from a power struggle between consumer and staff.” A newspaper’s national investigation found that some schools use R&S as a tool for discipline rather than safety and to address disruptive behavior and increase compliance, a belief about R&S that studies have disproved. Children suffer from R&S practices that don’t follow best practices.
A 7-year-old died from being restrained face down for hours at a time. A student hung himself due to prolonged confinement and lack of proper supervision. Investigations reveal teachers refused to release students from seclusion, even when they repeatedly banged their heads against a wall, because they believed the student would “stop when it hurts.” Since 2010 cases of R&S have increased, pointing to the overuse of this behavioral intervention practice. Children are subject to R&S for too long, in inappropriate ways, and for inappropriate purposes with no federal regulations to protect them.
Risk of Injury
The purpose of using R&S is to limit injury and danger to the student and teacher. However, data indicates the opposite. Many injuries to students and teachers result from using R&S. Teachers who performed R&S report the experience as physically and mentally painful. Teachers report being punched in the face and hit in the head with chairs. Studies show R&S puts teachers at harm more than students. However, students experience an array of negative consequences as a result of R&S that follows them through life. Parents report their children subjected to R&S experienced psychological trauma, received post-traumatic stress disorder diagnoses, and have been physically injured. Children subjected to seclusion have banged their heads against a wall, suffered nosebleeds, broken bones, and defecated themselves, all as a result of R&S. In too many cases, children have died.
Disproportionate Use
Although the U.S. DOE provides guidelines and principles on when to use R&S, R&S tactics are disproportionately used on children with disabilities, along with boys and students of color. As of February 9, 2022, 13% of the total student population are students with disabilities; however, 80% of restraints and 77% of seclusions in schools occur to students who qualify under the IDEA. Data from the 2015-2016 school year indicate African American students make up 15% of total enrollment across the country, yet 27% are restrained and 23% are secluded.
Additionally, R&S is disproportionately inflicted upon preschoolers ages three and four, who likely struggle with communication and verbalization coupled with a lack of being able to fully regulate their emotions. Children with disabilities are particularly vulnerable to R&S due to a lack of proper articulation to parents, adults, and advocates of what they are experiencing.
Legal Background
Federal Laws Surrounding Restraint and Seclusion in Medical Settings
R&S is still used in medical settings as a method to de-escalate, calm, and protect the patient and others. However, unlike in schools, the use of R&S in medical settings and facilities is federally regulated and documented due to most hospitals receiving federal funding. Federal regulation of R&S in medical settings are implemented to reduce the risk of injury to the patient and caretakers with the overall goal of reducing the use of R&S overall. Regulations include required training, certification programs, and accreditations’. There is also a federal law regarding the use of R&S on children known as the Children’s Health Act of 2000 which amended Title V of the Public Health Service Act. This act regulates the use of R&S for children in hospital, medical residential, and medical non-residential facilities receiving federal funds under the Public Health Service Act. Hospitals participating in Medicare and Medicaid programs also followed federal R&S regulations. Unfortunately, this federally required training, certification, and oversight is not the case in education, yet R&S practices are being used nationwide in schools.
Introduction to Restraint and Seclusion Federally
The School is Not Supposed to Hurt report, released in January 2009 by the National Disability Rights Network, revealed the misuse of R&S in schools across the country and documented the injuries, trauma, and deaths sustained due to misuse. The report broke headlines and sparked federal awareness and discussion of the lack of federal and state laws governing R&S in schools. No federal law meant states regulated policies and guidelines about the specific use of when R&S can be used in schools resulting in variation among states. Some states adopted legislation to regulate R&S, while other states imposed no regulations. The U.S. DOE created a list of principles for states, with the only sweeping guideline being the use of R&S is only intended for “reactionary crisis or emergency responses” and should only be used in “extreme situations like when a student exhibits dangerous behavior towards self or others when a risk of serious and imminent physical harm or injury is evident.” However, this is a guidance document, not a regulation, and wasn’t and isn’t always enforced by the states. Social media further disseminated the coverage of inappropriate and inhumane R&S practices leading to a federal response to the matter in the form of an investigation and discussions of minimum standards.
Government Accountability Office Report
In May 2009, the Government Accountability Office (GAO) released a report containing the results of the investigation sparked by the School is Not Supposed to Hurt report. The GAO report revealed hundreds of incidences of R&S in schools leading to severe injury and death.
The report highlighted the lack of federal laws and how state laws were nonexistent, inconsistent, and “widely divergent.” In 2009, nineteen states had no laws, some states had regulations only applying to specific schools and specific situations, seven states regulated restraint but not seclusion, seventeen states had regulations pertaining to staff training, thirteen states required consent and prior authorization to use restraint, nineteen states required disclosure to parents after restraint occurred, two states required annual reporting, eight states prohibited restraint that impeded a child’s ability to breath, and four states collected and reported their use of seclusion and restraint. The report further uncovered the disproportionate use of R&S on children with disabilities and the lack of parental consent to use R&S.
Current Guidance/Laws
Federal laws exist surrounding the use of R&S in schools, such as the IDEA, Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act (ADA). These federal laws focus on the illegality of using R&S to discriminate against students with disabilities and are not a general sweeping law regulating R&S federally for all children. The IDEA is funded by the federal government and allows children with disabilities to receive free and appropriate education and special services. The act mandates students with special education to have Individualized Education Programs (IEP), a written document explaining the student’s goals and services that should be provided. IEPs are jointly developed by the parent and school and can include notes addressing behavioral interventions such as the use of R&S. The IDEA states that R&S can only be used in schools under specific circumstances, such as when a student’s behavior poses an imminent danger of physical harm to themselves or others. The school must also implement policies to notify parents when and how R&S are used and document the incident. Section 504 of the Rehabilitation Act and Title II of the ADA are both federal laws that prohibit discrimination based on disability. Section 504 of the Rehabilitation Act specifically “prohibits discrimination based on disability in any type of program or activity operated by recipients of federal funds.” Title II of the ADA “prohibits discrimination based on disability by public entities, regardless of whether they receive federal financial assistance.” Both federal laws indicate that inappropriate use of R&S may constitute discrimination based on disability. Even with disability discrimination laws in place, it is clear there is still a disproportionate impact. The United States DOE Office for Civil Rights released a Dear Colleague Letter addressing how the use of restraint and seclusion could violate the civil rights act and be discriminatory against children with disabilities resulting in Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA being violated. While these federal laws address how R&S cannot be used in a discriminatory manner against children with disabilities, there is no federal law discussing R&S in non-disability discrimination instances.
Keeping All Students Safe Act
The Preventing Harmful Restraint and Seclusion in Schools Act was introduced on December 9, 2009, as a federal response to prevent R&S tragedies from continuing to occur. The act would create minimum standards for the use of R&S in schools:
“(1) prohibit elementary and secondary school personnel from managing any student by using any mechanical or chemical restraint, physical restraint or escort that restricts breathing, or aversive behavioral intervention that compromises student health and safety; (2) prohibit such personnel from using physical restraint or seclusion, unless such measures are required to eliminate an imminent danger of physical injury to the student or others and certain precautions are taken; (3) require states and local educational agencies (LEAs) to ensure that a sufficient number of school personnel receive state-approved training and certification in first aid and certain safe and effective student management techniques; (4) prohibit physical restraint or seclusion from being written into a student’s education plan, individual safety plan, behavioral plan, or individual education program as a planned intervention; and (5) require schools to establish procedures to quickly notify parents if physical restraint or seclusion is imposed on their child and quickly notify the state Protection and Advocacy System if the child is seriously injured or dies from such measures.”
This act is introduced almost yearly and is currently being introduced as the Keeping All Students Safe Act (KASSA). The intent of the KSSA is to provide all children protection from R&S. Throughout the years, the act has taken on language such as “prohibit and prevent seclusion, mechanical restraint, chemical restraint, and dangerous restraints that restrict breathing, and to prevent and reduce the use of physical restraint in schools, and for other purposes” and discusses steps on federal regulation of the states including states plans to monitor, report, and provide training to school staff. Most recently, the KASSA H.R.3474 introduced in the House in May of 2021 had language that prohibited seclusion entirely, limited and described the types of physical restraint in schools, outlined behavior that qualifies restraint, ensures training, establishes procedures post incidents, and gives students private right of action. Although federal acts to regulate R&S continue to fail due to a lack of bipartisanship, social media and news reporting the horrors of students being subjected to R&S keep the issue in the headlines.
In 2012, the U.S. DOE created a list of principals to help states, their school districts, schools, parents, and stakeholders develop and revise policies to create procedures regulating R&S. The list contained 15 principles that stressed the goal to create an environment that provides support and structure to reduce unnecessary use of R&S.
The DOE’s hope was that these principles would be a guide and framework for states and schools to use when creating their own policies. Principles were as broad as “every effort should be made to prevent the need for the use of restraint and for the use of seclusion” to, more specifically, “restraint or seclusion should never be used in a manner that restricts a child’s breathing or harms the child.” While these guidelines are helpful, many of these principles were ignored, as seen in lawsuits that were brought against school districts due to lack of state oversight.
Notable Lawsuits
Three notable cases, all resulting in settlements, have been brought against school districts resulting from improper use of R&S tactics: Kerri K et al. v. State of California et al., Q.T. et al. v. Fairfax County School Board et al., and, most recently, the U.S. Department of Justice (DOJ) settling with Maryland School District. These cases all addressed the lack of enforcement of Title II of the ADA. Recent investigations by the DOJ into Cedar Rapids Community School District in 2022 and Anchorage School District in 2023 have also led to settlement agreements. Strong settlement arrangements, finding fault with the districts, have required districts to eliminate seclusion, reduce restraint, and document, which are considered big wins in terms of settlements.
Kerri K. filed in 2019, is the first notable and landmark case around R&S. The class action was brought by four students of Floyd I. Marchus School (Marchus) in California and was brought against the state of California, Contra Costa County Office of Education, and individuals who worked at the Marchus school. The Marchus school serves individuals with behavioral and emotional issues and used R&S inappropriately, specifically as a “consequence of the enforcement of a class-wide behavior management policy – the “Marchus Way” or “Marchus Program” – that eliminates and overrides any and all instruction specially designed to meet the unique needs of each child with disabilities.” The plaintiffs alleged violations under Section 504 of the Rehabilitation Act of 1973 claiming their children were denied basic educational services and equal educational opportunity required by California state law as a result of the misuse of R&S. They further claimed their children were subjected to physical and emotional harm due to misuse of R&S. Allegations include one child “cowering in a corner, was picked up and thrown against a wall, her legs pulled apart and her head bent toward the floor” all for throwing a water bottle towards a staff member. Another allegation discussed the misuse of restraint by five adults who increased pressure and ignored the child pleading that she was being hurt even once a staff member determined the restraint was problematic. Kerri K. resulted in a settlement in 2022 with the California Department of Education (CDE) agreeing to 1) conduct two years of follow-up reviews of the school to ensure best practices and that the safety of students is not being impacted through abusive R&S practices, 2) audit the schools written documentation of policies and reports of prior R&S incidents, and 3) provide technical assistance and training in Positive Behavioral and Intervention and Supports to the school’s staff. This settlement agreement is made with the hopes that the children of Marchus will return to a safer school environment and obtain the proper education they deserve.
Q.T. is the second notable lawsuit brought by parents and disability rights activists in 2019 against the Fairfax County School Board. The plaintiffs sought relief under Title II of the ADA and Section 504 of the Rehabilitation Act of 1973, alleging the school used “excessive and unjustified discrimination, psychological trauma, and physical harm inflicted by their illicit use of restraints and seclusion to silence, detain, segregate, and punish students with disabilities.” The use of R&S was compared to “techniques more in tune with incarcerated prisoners than students with disabilities.” Allegations included children secluded for two months consecutively until “deemed to be good behavior for three consecutive days,” students defecating themselves to end seclusion resulting in teachers making them clean up their own urine, and seclusion being a punishment for not completing a math worksheet. These children reported psychological trauma, increased anxiety, and physical injuries as a result of these restraint and seclusion tactics. This case settled, and the school district agreed to completely eliminate the use of seclusion by the 2022-2023 school year, prohibit restraint unless there is an imminent risk of harm to the student or others, end the use of specific restraint maneuvers that cause serious injury along with creating a program to address other methods for behavioral intervention. Parents recognize trauma has already been inflicted on their children, but the goal of the settlement is to prevent trauma to future students as well as teachers.
A Maryland School District is the most recent notable case brought by the DOJ in 2020 against the Maryland School District. The case alleges Maryland School Districts’ use of R&S was improper, violating Title II of the ADA by discriminating and denying students with disabilities services, programs, or activities. DOJ found unnecessary and repeated use of R&S inflicted on students as young as five for non-emergency reasons leading to distress, trauma, and instances of self-harm. This unlawful use of R&S by the Maryland School District, therefore, was found to deny students access to a safe and positive learning environment. The case was settled in 2021, with the school district agreeing to take steps proactively to ensure children with disabilities are not discriminated against due to school practices. Specifically, the school district agreed to prohibit seclusion, report instances of restraint and evaluate the justification, train staff to collect and analyze restraint data, oversee the creation of intervention plans, provide appropriate training to implement procedures, design and implement procedures for handling restraint complaints, offer counseling and compensatory education services to students who were subjected to the districts previous discriminatory practices, and hire an administrator to supervise and ensure the district remains compliant under Title II of the ADA. These three cases have all settled with favorable and positive changes in the respective states. Unfortunately, none of these cases have changed precedent.
Analysis
“It should not matter in which state you live – all children deserve to be safe in school.” This is not the case. Children with disabilities are supposed to be protected by the ADA and the IDEA, but the ADA and IDEA, as currently written, have not stopped the disproportionate use and misuse of R&S in schools on children who have disabilities. All children are supposed to be protected by guidelines, only allowing R&S to be used when the risk of serious and imminent physical harm or injury is evident, but states abuse and misuse the practice. Some states provide legal protection to children; other states only provide legal protection to children with disabilities, and many states have zero legislation providing legal protection to children. Cases of R&S in schools are rising, and data indicates misuse, abuse, overuse, and disproportionate use are still pervasive. R&S in schools is used beyond the intended purpose and is used incorrectly. Without amendments to our federal civil rights laws and federal law to exclusively regulate the use of R&S in schools, all children will continue to be physically and psychologically harmed.
Civil Rights Issue
Civil Rights are federal laws that protect and prohibit discrimination based on race, color, religion, sex, national origin, and disability. Civil Rights include disability laws such as the ADA, Section 504 of the Rehabilitation Act of 1973, and the IDEA. The ADA and Section 504 of the Rehabilitation Act of 1973 are federal civil rights laws that guarantee children with disabilities won’t be discriminated against based on their disability status. The IDEA guarantees children with disabilities free and appropriate public education by providing them with special education and related service programming. Prior R&S cases brought before states representing students with disabilities, such as Kerri K., Q.T., and Maryland School District, have argued violations under these federal civil rights disability laws. These settlement agreements gave rise to favorable outcomes for the plaintiffs and states; however, the current disability laws are not meaningfully protecting children with disabilities from R&S practices.The ADA was written to protect individuals from discrimination based on disability. The ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. However, R&S practices in education do exactly that; discriminate based on disability. R&S practices in schools statistically and continuously nationally discriminate against children with disabilities.
The IDEA is a federally funded program created to further guarantee children with disabilities free and appropriate public education by providing them with special education and related service programming. The federal program requires school districts to provide free appropriate public education to children with disabilities in the least restrictive environment, ideally side by side with peers as much as possible. However, the way R&S practices are used in schools directly violates the IDEA. R&S are inappropriate practices that put children in restrictive environments and remove them from learning with their peers, directly contradicting and violating the values under the IDEA.
R&S practices in the classroom extend beyond civil rights laws protecting disability. R&S practices in schools additionally discriminate disproportionately against boys, African Americans, Hispanics, and young children. 2015-2016 school year data indicates African American students make up 15% of the total enrollment across the country, yet 27% are restrained, and 23% are secluded. R&S practices are primarily used on elementary school students and preschoolers. There is also data pointing to the intersectionality between race and sex, showing R&S incidents disproportionately affecting African American boys. R&S practices in schools are directly violating civil rights laws that should protect students based on their race, sex, age, and disability status.
Human Rights
The Universal Declaration of Human Rights (UDHR) sets universal standards for people and nations regarding fundamental rights. While the literature has not examined or applied the UDHR to R&S, alliance groups have stated that R&S violate human rights. Therefore, I will examine how R&S practices in education directly conflict with the universal human rights set out in Articles 5, 7, 9, and 26.
Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” R&S practices have knowingly been used as a form of cruel, inhuman, degrading treatment and punishment, directly violating Article 5. In Kerri K., the school specifically used R&S practices as a “mechanism for punishing the children.” Children are locked in small padded rooms for hours and days at a time. In Q.T. et al. v. Fairfax County School Board et al., one child, although fully potty trained, pooped and peed himself just to be released from seclusion. Senators have even called seclusion inhumane, which violates the universal human right not to be subject to cruel, inhuman treatment or punishment.
Article 7 states, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” Federal investigations found school districts use R&S “in violation of students’ civil rights, including systematic discrimination.” As previously discussed, sex, race, age, and disability discrimination resulting from R&S violate not only civil rights law but human rights granted by the UDHR.
Article 9 states, “No one shall be subjected to arbitrary arrest, detention or exile.” However, many reports indicated use of R&S practices in schools was determined and conducted in an arbitrary manner.” Students were detained, put into exile, and secluded based on “arbitrary, idiosyncratic, and generally avoidable” situations. The misuse of R&S directly violates Article 9 by detaining and exiling children for arbitrary infractions and behaviors.
Lastly, Article 26 states the right to education, highlighting the right to a free elementary education supporting human development and personality, strengthening fundamental freedoms, and promoting understanding and tolerance coupled with the parent’s right to choose the kind of education their children receive. Research into R&S practices shows no therapeutic benefits and don’t support development, are physically and psychologically traumatizing, and are no longer considered the best method to support students, especially those who need behavioral interventions. This research disproving previous R&S benefits directly conflicts with Article 26. Instead, to comply with Article 26, the federal government should require schools to remove the use of R&S and implement Positive Behavioral Interventions which support human development. Article 26 also highlights the parent’s right to choose the type of education their children receive. However, data revealed that parents are often misled or left in the dark about how often and when R&S practices are used on their children in direct violation of Article 26. Children are humans, and therefore they should receive federal protection against R&S practices used in schools that are directly violating rights granted to them under the UDHR.
Recommendations/ Further Considerations
“It should not matter in which state you live – all children deserve to be safe in school.” In order to make school safe for all children, I recommend that the federal government not only needs to strengthen protection under disability rights laws by amending the ADA to specifically address R&S in schools but also need to think more broadly for all students by creating a federal law protecting all children from restraint and seclusion in schools, not just the disabled.
Civil Rights Issue
R&S directly violates Civil Rights by discriminating based on disability, age, sex, race, and gender. Therefore, to remedy the violations that the use of R&S imposes on Civil Rights, I argue to amend the ADA, require the federal government to regulate the IDEA because it is a federally funded program, and have the Civil Rights Division create and enforce their own federal law specifically addressing R&S.
To remedy the direct contradiction that the use of R&S imposes on the ADA, I propose to amend the ADA and create a new regulation specifically addressing R&S practices and their discriminatory use. Currently, the DOJ plans to issue new ADA regulations on topics including medical diagnostic equipment, web accessibility, public right-of-way, and equipment and furniture. R&S is a big problem within the disability community and continuously impacts disabled students disproportionately in education. Due to the disproportionate impact, R&S practices subject children with disabilities to, I propose the need for the ADA to specifically issue a new regulation under the ADA to address R&S in schools.
The IDEA is a federally funded program. Therefore, I am arguing that the federal government should be able to regulate R&S because the government funds the IDEA. The federal government should be able to regulate R&S inflicted on children with disabilities who qualify under the IDEA in a similar manner to federally funded hospitals and medical facilities. The research behind behavioral interventions has changed, and studies continuously indicate the harmful physical and psychological implications that R&S have on children. Positive Behavioral Interventions and Supports are a better tool for managing students’ behavioral needs and better complying with the goals laid out in the IDEA. Therefore, I believe Congress should amend the IDEA to specifically regulate R&S in schools and is authorized to do so based on the federal government funding the program.
Civil rights include protecting students based on their race, sex, age, and disability status. R&S practices in schools disproportionately impact gender, race, age, and disability. While the ADA attempts to protect children with disabilities from disproportionate use of R&S, this leaves children who are disproportionately subjected to R&S practices based on race, sex, and age unprotected. Therefore, R&S practices not only need to be amended under the ADA and regulated by the federal government to strengthen protection under disability rights laws but should also be addressed and enforced under civil rights more broadly to protect children based on any form of disproportionate discrimination. This regulation would be by the Civil Rights Division under federal law.
Human Rights
R&S practices in education directly conflict with universal human rights set out in Articles 5,7,9 and 26. Therefore, I recommend that R&S should be examined through a human rights lens and emphasize the need for a federal regulation to correct the violation with specific articles. Children are humans and, therefore, should receive federal protection against R&S practices that are used in schools, directly violating rights granted to them under the UDHR. Whether this protection is through the passage of the Keeping All Students Safe Act or something similar, federal regulation is needed to restore children with their human rights.
The Convention on the Rights of the Child
The Convention on the Rights of the Child (CRC) lays out the civil, political, economic, social, educational, health, and cultural rights of the child. All but two countries, the United States and Somalia, have ratified the Convention on the Rights of the Child. The United States argues ratification would “limit the U.S. sovereignty or would cause unlimited interference in family life.” However, by not ratifying, the United States does not recognize children’s rights as human rights. Many Articles that could protect children from R&S practices can be found in the CRC. By not ratifying, the United States is acknowledging the rights that adults have but not children. This message undercuts the impact that organizations supporting and fighting for children’s rights have. I believe that if the United States were to recognize and adopt the CRC, children would be better protected from R&S practices happening in schools.
Changes to the Educational System
Part of the issue is law and policy; the other issue is the educational system and the implications that R&S has outside of the classroom. Federal law and policy regulating the use of R&S in schools is a positive and needed protection; however, it is also important to recognize the challenges that schools face regarding decreased fiscal resources, reduced capacity to fund specialized services, teacher shortages, and lack of trained teachers to work with children with behavioral issues and disabilities. It is easy to place blame on teachers; however, they are doing the best they can with the resources and training provided by schools with regard to proper R&S practices. The problem is schools are not equipped and don’t have enough resources to handle the number of children in schools who have disabilities, resulting in R&S practices being the “easier” resort to handle incidences rather than other behavioral management strategies.
One of the biggest complaints from schools regarding their use of R&S is that schools suffer from funding issues. However, studies show there are enormous monetary costs associated with R&S practices. Schools need liability insurance, crisis prevention training, and money to fix property damage to school facilities resulting from R&S incidents. Children and staff routinely become injured from performing R&S leading to medical costs. Schools also face lawsuits from R&S misuse and other legal liabilities. Therefore, I propose that by eliminating R&S to only cases of serious physical injury, “educational settings can provide better quality education with increased staff satisfaction and decreased staff turnover, resulting in significant cost savings and a safer environment.”
Conclusion
The use of R&S to handle behavioral issues in children at school has far-reaching implications outside of just the classroom. R&S practices disproportionately impact children based on disability, race, sex, and age. R&S practices result in physical injury or death to children and faculty. These practices psychologically traumatize children setting them up to be fearful in the real world. R&S practices violate civil rights and human rights guaranteed to individuals and should therefore be regulated by the federal government, specifically the DOE and the Office of Civil Rights. Disability rights laws surrounding R&S need to be strengthened, but R&S also needs to be extended and thought of more broadly for all students. Federal regulation can take on the form of amendments to civil rights laws or passage of a new law, such as the Keeping All Students Safe Act that Congress has continuously proposed. The federal government’s failure to pass legislation that would set a minimum standard regulating the practices of R&S in schools further perpetuates and overlooks the fact that civil rights, human rights, and children’s rights are being violated daily.
References
The United Nations. The Universal Declaration of Human Rights. (1948, December 10). Retrieved from the United Nations: https://www.un.org/en/about-us/universal-declaration-of- human-rights. (Referred to as UDHR).
The United Nations Office of the High Commissioner. The Convention on the Rights of a Child. (1990, September 2). Retrieved from the United Nations: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child. (Referred to as CRC)
Robert Kim, “The restraint and seclusion of students with disabilities,” Kappan, February 28, 2022, Retrieved from Kappan: https://kappanonline.org/restraint-seclusion-students-with-disabilities-kim/
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