Updated: Jun 22, 2021
Situated in a dank and dusty workroom with a few of my special education colleagues, we waited for our instructor. She was going to train our group in de-escalation and crisis prevention techniques using a method called CPI (an acronym that stood for the name of the company that created the curriculum, Crisis Prevention Institute). As a new teacher, this was my first exposure to this kind of training, and it was marketed to me as the essential “how-to” course to know what to do when a student becomes aggressive.
The instructor walked us through how to support a student who was “acting out,” went through how to set effective limits, and finally role-played scenarios using “non-violent” ways to protect yourself and the student if they engage in physical aggression.
While this training was nearly 20 years ago, every subsequent year I was a teacher, I was trained at least in some form of crisis prevention. And in the last decade of my service in public schools working with students with disabilities, a significant focus during these sessions was about restraint and seclusion (mostly that educators should avoid it at all costs).
It was inevitable that, during the discussion of what was legal and the right thing to do to keep everyone safe, an educator would ask, “but what if [fill in the blank of the wildest scenario possible]? Is it okay to restrain then?!” To which the instructor, if they were good at their job, would say, “you are asking the wrong question.” A better question is, to which I hope all instructors would ask, “have we done everything we could to prevent problem behavior from occurring in the first place?”
In 2020, the Council for Parent Attorneys and Advocates (COPAA) published a white paper titled, The Crisis of Trauma and Abuse in our Nation’s Schools. Since 2008, COPAA has called for the end of restraint and seclusion in all schools, but the latest data from the 2017-2018 school year showed no improvement for students with disabilities in the United States. According to data highlighted in the paper, “among the students in the U.S. who were subjected to seclusion, a staggering 77% were students with disabilities receiving IDEA services, and 80% of all students who were subjected to physical restraint were students with disabilities receiving services through the Individuals with Disabilities Education Act (IDEA).”
In 2009, the Government Accountability Office (GAO) found hundreds of cases of alleged abuse and death related to the use of restraint and seclusion. Including allegations of a 7-year-old dying after being held face down for hours by school staff, 5-year-olds being tied to chairs with bungee cords and duct tape by their teacher, and a 13-year-old hanging himself in a seclusion room.
COPAA’s paper features the historical context of restraint and seclusion, which originated in France during the late 18th century and included the subsequent non-restraint movement in England. It also summarizes litigation for the United States Supreme Court regarding restraint, seclusion, and corporal punishment and reviews cases from federal and state courts, as well as judicial decisions considering the Individuals with Disabilities Education Act (IDEA).
Currently, many states do not have any laws regarding the use of restraint and seclusion. Some states regulate the use of restraint and seclusion in schools but do not outlaw the most dangerous forms of restraint that can lead to death, such as mechanical and physical restraints.
Protection via statute and/or regulation
** Nebraska has a regulation providing that “[e]ach school system has a seclusion and restraints policy approved by the school board or local governing body.” *** Missouri has a statute, but it prohibits only “confining a student in an unattended, locked space except for an emergency situation while awaiting the arrival of law enforcement personnel.” (Adapted from The Crisis of Trauma and Abuse in our Schools, 2020)
COPAA is advocating for federal standards that would apply to all schools that accept federal funds. It would (at the very least):
prohibit the seclusion of any child;
prohibit any type of restraint that would restrict breathing or would otherwise cause serious physical injury or psychological harm or be life-threatening;
prohibit the planned use of restraint in the form of interventions documented in a child’s behavior plan, 504 Plan, or Individualized Education Program (IEP);
require same-day parental notification if any incident of seclusion or restraint does occur; allow a private right of action for families whose child is unlawfully secluded or restrained, including for declaratory judgment, injunctive relief, compensatory relief, attorneys’ fees, and expert fees; require states to train school personnel so they are equipped to use evidence-based proactive strategies and techniques to address student behaviors;
require states to collect and report accurate annual data on the use of seclusion and restraint in schools, including the demographic categories of students who have been subjected to these practices; and, require states to develop and implement policies and enforcement mechanisms to ensure compliance with federal standards.
As you would hopefully suspect, there is no evidence that restraint and seclusion provide any educational or therapeutic benefit to children. And the use of these methods in non-emergency situations poses significant physical and psychological danger to anyone involved. Currently, there are no federal laws or regulations addressing the use of restraint and seclusion, unlike for law enforcement officials and mental health facilities. In addition, there is no prohibition of these harmful practices under the IDEA. And once restraint or seclusion has occurred, it is nearly impossible for there to be a sufficient remedy pursuant to the IDEA, the U.S. Constitution, or criminal law. There is simply no reason not to have federal legislation to protect students with and without disabilities.
“A child should never suffer the death penalty for misbehavior, especially behavior that can be a direct manifestation of that child’s disability.” – COPAA
Tim Villegas is the Director of Communications for MCIE, Editor-in-Chief of Think Inclusive, and the host of the Think Inclusive Podcast. Follow him on Twitter @TheRealTimVegas.