Seclusion and Restraint

Kelley Baker kbaker@hslegalfirm.com

Karen Haase

Steve Williams

Bobby Truhe

khaase@hslegalfirm.com @KarenHaase

swilliams@hslegalfirm.com

btruhe@hslegalfirm.com @btruhe

DEBATE OVER SECLUSION AND RETRAIN RAGES ON

Resisting what it sees as a rush to judgment, the American Association of School Administrators defended restraint and seclusion as educational tools that sometimes have legitimate purposes. In a report released on March 8, 2012, Keeping Schools Safe: How Seclusion and Restraint Protects Students and School Personnel, AASA stated that it “does not support federal policies built around the few wrongful individuals who choose to disobey school policies, state regulations, or state and federal criminal laws."

AASA made two points. First, restraint and seclusion make it possible for certain students to attend and be included in regular schools. The report cited anecdotal evidence, including a statement from a parent who wrote to Kansas officials last year: "Without the appropriate use of seclusion and restraint procedures, I am 100 percent certain that my daughter would not have been able to stay in public school." Instead, "[she] would have been placed out of home in a residential school setting, which honestly, would have been intolerable for me."

Second, restraint and seclusion protect not just the student in question, but staff. "I kept backing away from the student," a special ed teacher from Missouri wrote in response to an AASA survey. But "the student grabbed my index finger and twisted it. This caused a spiral fracture. . . . Five months later, I am still unable to have full range of motion in that finger." Such experiences are all too common, according to AASA. In fact, 30 percent of districts surveyed said there had been at least five hospitalizations in the past five years "due to unanticipated behavioral outbursts by students," it said.

The AASA report comes at a time when the Education Department is feeling pressure from certain disability groups to issue guidance on restraint and seclusion.

Such groups are also pushing lawmakers to pass legislation to govern the use of such techniques in schools, including a measure introduced in December by Sen. Tom Harkin, D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee in October. AASA said federal bills that seek to regulate the

use of seclusion and restraint would "undermine" teachers' ability to use restraint and seclusion and hence put them at risk. "If school personnel are afraid to use these techniques because they could risk litigation for their school district, or if school personnel are prohibited from using these techniques entirely, the rate of injury for school personnel and for the students with whom they are trying to work would increase dramatically," it said.

Some disability and parent advocacy groups rejected the report, which came two days after the Office for Civil Rights released a preview of the first-ever national data on restraint and seclusion in schools.

Currently, Nebraska schools are not required to have policies on seclusion and restraint, although Nebraska Commissioner of Education Roger Breed urged all school to adopt such policies in a memorandum he distributed to all education leaders in September of 2009. The H&S School Law section will continue to monitor developments in this area and keep state educators updated. In the meantime, if you have questions or concerns about seclusion and restraint or about or other legal issues, feel free to contact Kelley, Karen, Steve or Bobby.

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