On December 28, 2016, the U.S. Department of Education’s Office for Civil Rights (“OCR”) provided school districts with guidance on how the use of restraint and seclusion may result in discrimination against students with disabilities, thereby violating Section 504 of the Rehabilitation act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). The Letter defines restraint as “restricting the student’s ability to move his or her torso, arms, legs or head freely,” and seclusion as “confining a student alone in a room or area that he or she is not permitted to leave.”
OCR data has shown that schools restrain and seclude students with disabilities at higher rates than students without disabilities. It should be noted that OCR enforces Section 504 and Title II rights of students with disabilities, not the Individuals with Disabilities Education Act (IDEA). That being said, any children covered by the IDEA would also be covered by OCR guidance.
During the 2013-14 school year students covered by the IDEA made up 12% of all students in public school but were 67% (approximately 69,000) of all students restrained or secluded in school. This has been a big issue in the news this year. The Dear Colleague Letter goes on to say that discrimination on the basis of disability in the use of restraint or seclusion occurs when districts are:
“Unnecessarily treating students with disabilities differently from students without disabilities;”
Implementing policies, practices, procedures, or criteria that have an effect of discriminating against students on the basis of disability; or
Denying the right to a free appropriate public education (FAPE).
The OCR pointed out that the U.S. Department of Education discourages the use of restraint or seclusion in general. The Department recommends that school districts never use mechanical restraint, never use physical restraint or seclusion for disciplinary purposes, and that trained school officials should use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to himself or others. However, the OCR would “likely not” consider the repeated use of restraint and seclusion to be a justified response if alternative methods also could prevent imminent danger to self or others. In other words, the school can’t fall back on the “imminent danger” excuse indefinitely.
The Letter reminds districts that, even if not currently classified as a student with a disability, a student’s behavioral challenges, “such as those that lead to an emergency situation in which a school believes restraint is a justified response  could be a sign that the student has a disability and needs special education and related services.” If the student’s behavior is interfering with her education or the education of other students that would lead a teacher or other school personnel to suspect the student has a disability, the school district must evaluate the student to determine if she has a disability and needs special education or related services.
Do not let your district tell you that your child does not have a disability because “his behavioral challenges are not accompanied by academic challenges.” This is just not true. Furthermore, a student throwing “tantrums” of the sort that is uncommon at her age could trigger a district’s obligation to evaluate her. Also, if it’s suspected that the student’s behavior is related to a traumatic event, such as a parental divorce, the district would still be obligated to evaluate him if they suspect he has a disability.
If the student is already identified as having a disability, the school’s use of restraint or seclusion could be evidence that her educational needs are not being met. The District may have to conduct a Functional Behavioral Assessment (FBA) or implement positive behavioral interventions and supports to mitigate or eliminate the need for restraint and seclusion. A new placement may need to be considered as well if supports still do not do enough to ensure FAPE in the student’s current placement.
Finally, if it is determined that the use of restraint or seclusion resulted in a denial of FAPE for the student, he may be entitled to “compensatory educational services.”
Please feel free to contact me if you have further questions.