8 minute read
Legal Forum
Retaining Students Who Have IEPs
Dr. Dave Dagley, Professor Emeritus, University of Alabama
Dr. Amy Dagley, Associate Professor, University of Alabama at Birmingham
A federal district court case, D.M. v. Board of Education Toledo Public Schools, 575 F.Supp.3d 897 (N.D.Ohio 2021) was reported last year, in which the legal guardian (an aunt) of a nine-year-old male student sued the elementary principal, a teacher, and a teacher aide after they restrained her nephew, D.M., on his classroom floor for approximately fifteen minutes. The authority of school personnel to restrain students who are being served under an IEP and who have lost control and pose a risk to themselves and others is an important question for school administrators and staff members, and it is a legal question that has been evolving.
In a commentary in the CLAS School Leader in the spring of 2006, “Seizures Under the Fourth Amendment,” we observed that the courts were deploying the rules of the lead case about student searches, New Jersey v. T.L.O., 469 U.S. 325 (1985), to examine student seizures (emphasis added). In another commentary in the CLAS School Leader in early 2011, “Restraining Difficult Students,” we reviewed an Alabama case, D.D. ex rel. Davis v. Chilton County Board of Education, 701 F.Supp.2d 1236 (M.D.Ala. 2010), in which the mother of a four-year-old boy sued the school district, two administrators, and the child’s teacher. The mother objected to her child being secured in a specialized chair with a Velcro seat belt. She alleged that the defendants violated her child’s Fourteenth Amendment rights, through 42 U.S.C. §1983 (Section 1983), as well as his special education rights under federal law, and state claims for assault, battery, and outrageous conduct. The court awarded summary judgment to the school defendants on the Section 1983 claims, finding that the teacher’s actions were not “shocking to the conscience,” the legal standard that has developed for testing student discipline, restraints, and seizures in many jurisdictions. In a third commentary in the CLAS School Leader in spring 2016, “Student Seizures under the Fourth Amendment,” we reviewed several cases to demonstrate the persistent use of the analysis from the T.L.O. analysis (justified at its inception; reasonable in scope) for student seizures in the school setting, and to illustrate that, for a seizure to be unreasonable, the circumstances must be highly egregious. This rule seems to apply to both students who receive special education services and those who are not.
In the case which prompted this commentary, D.M. v. Bd of Educ. Toledo Public Schools, the student was participating in a summer reading program. He had a history of disruptive behavior and was identified as suffering from attention deficit hyperactivity disorder, oppositional defiance disorder, and general anxiety disorder. He was served under an individualized education program (IEP) that said that the student’s behavioral goals were to work on controlling anger with no physical acting out, follow directions during transition times, and work on getting along better with students and staff. While the judge described these goals in the case, nothing was mentioned about this particular student’s functional behavior assessment (FBA) or behavior intervention plan (BIP).
The teacher and aide testified that the trouble started when they told the student to turn off the computer because it was time for lunch. The student became angry, made a growling noise, lifted a chair, and threw it. The two employees then got on each side of the boy to grab his arms to try to restrain him. The student fought back, flailing his arms, yelling, kicking, and spitting. The two employees and the student then tripped and fell to the ground, and the two employees continued to hold his arms while trying to calm him. The student was hitting his head on the ground and the teacher aide put the student’s jacket under his head to protect it. The teacher yelled for someone to call the principal, who came to help. Someone yelled to others to call the student’s aunt to come to school.
The student’s aunt, who was also the student’s guardian, testified that she had received a phone call from a person at the school, identified as the behavioral health case manager, who told her that her nephew was upset and that she needed to come to school. The aunt contacted her son, who transported her to the school. The son testified that when he and his mother arrived at the classroom, they saw the student on the floor, with the teacher, aide, and principal attempting to hold down the student’s legs and arms. The principal testified that he was also trying to position the student off of the floor, because he believed it was not authorized. The student calmed down when his aunt and her son walked into the room.
The student, through his aunt/legal guardian, sued the school district, the principal, the teacher, and the teacher aide for violating the student’s constitutional rights under 42 U.S.C. §1983 (Section 1983), by seizing him in violation of the Fourth Amendment and by violating his Fourteenth Amendment rights of due process and equal protection, and for violating state common law claims of assault, battery, and intentional infliction of emotional distress. The school district moved for summary judgment on grounds that the school defendants had qualified immunity. (Note: Section 1983 is deployed against a state actor who violates “clearly established” constitutional rights. If the constitutional rights are not yet “clearly established,” the school district defendants have qualified immunity from the federal claims.)
The aunt and student argued that restraining a student in a prone position violated school board policy and a state administrative regulation. They also argued that the Sixth Circuit Court of Appeal, with jurisdiction over Ohio, had earlier found the prohibition against gratuitous force was clearly established in Williams v. Morgan, 652, F.Appx. 365, 375 (6th Cir. 2016). The federal court judge in this case involving Toledo Public Schools observed that there is no controlling precedent or consensus of cases of persuasive authority establishing that holding a person in a prone position alone is a constitutional violation. There was no evidence that the principal, teacher, and teacher aide used “gratuitous force,” nor was there evidence that they “put their body weight on his neck or torso, that he had any difficulty breathing, that they slammed him to the floor, or that they struck him.” The court held that the restraint used by the school defendants did not violate “clearly established” rights. The school defendants retained their qualified immunity, and they were granted summary judgment on the federal claims. The court dismissed the state tort claims, declaring them to be more appropriately addressed in an Ohio court.
The court never mentioned a behavior intervention plan for D.M. It surely existed. Did it say a takedown was the appropriate response to a student’s melt down? Did it provide instructions on best practices for assisting the student with transitions that could have avoided this situation? We don’t know. However, the fact pattern discussed in this Toledo case is remarkably different from the fact pattern for the Chilton County case, cited above, in which the teacher had testified that she had attempted to modify behaviors by offering choices and positive reinforcement. When the student needed space to calm down, he liked to sit in a particular, specialized chair when he became upset. She would ask him: “Would you rather sit in this regular chair or in the Rifton chair?” This was reflected in the behavior intervention plan, and reflective of professional development for the staff.
The Chilton County case was discussed in the CLAS School Leader, Vol. 38, pages 10-12 (2011). That discussion was concluded with the following recommendations, adapted from a list provided in Vital, Kajs, and Alaniz, “Strengthening Policies and Practices in the Use and Prevention of Physical Restraint in Schools,” 199 West’s Education Law Reporter [1] (August 25, 2005). These recommendations bear repeating here and should be followed in planning and implementing physical restraint for students:
Review or create board policy on physical restraint that conforms with relevant statutory or regulatory law about restraint in the school setting.
Create a special team on each campus that will receive in-depth training on restraint.
Review current general behavior management or discipline management plans or programs.
Make certain that students receiving services under an IEP who are likely to require restraint have a Functional Behavioral Assessment (FBA) and Behavior Intervention Plan (BIP) addressed in their IEPs.
Bring professionals such as mental health specialists, behavior intervention experts, or other experts to advise on general building-level disciplinary plans, as well as individual BIPs for special education students. This is a key factor, in that it provides documentary evidence of professional judgment, practice, or standards.
Drawing from the expertise of the special team on each campus, provide basic training for general education teachers, special education teachers, teacher aides, bus drivers, and school resource officers.
Monitor compliance with building-wide disciplinary plans and individual plans by creating and reviewing a paper trail of documentation.
Periodically review plans and provide refresher courses for both the special team and the wider group of school employees.
