Tuesday, November 23, 2021
Wednesday, August 25, 2021
Return to School Roadmap, August 2021
Thee United States Department of Education will be issuing guidance to schools notifying them that regardless of the COVID pandemic or how instructino is provided, students with disabilities must still receive a free appropriate public education (FAPE) in accordance with the Individuals with Disabilities Education Act (IDEA), and that infants and toddlers with disabilities and their families receive early intervention services. Here is the first guidance document, a Questions and Answers (Q/A) document, that outlines the key requirements and reminds schools of their requirement to appropriately implement IDEA's Child Find obligations. https://sites.ed.gov/idea/files/rts-qa-child-find-part-b-08-24-2021.pdf
Friday, July 2, 2021
Can the school remove my child from an IEP?
Parents often ask:
Can the school exit my child from an IEP?
How can a school exit my child from an IEP?
The answer to these questions are that schools are not allowed to just dimiss - or exit - a student from an IEP without a formal evaluation. And so an IEP may not just say that a student no longer needs special educaiton and related services. Instead, the IEP team must arrange to re-evaluate the student in all areas of suspected disabilty, and only after the evaluation may the team decied whether or not the student continues to need special education and related services, that is, whether the student still continues to be eligible.
The federal regulation that addresses this is 34 CFR 300.305.
Wednesday, May 5, 2021
Bullying - When Special Needs Students Are the Victims or Instigators
Bullying - When Special Needs Students Are the Victims or Instigators
By Arizona Education Attorneys
What is Bullying?
Bullying is unwanted, aggressive behavior among school aged children
that involves a real or perceived power imbalance. The behavior is repeated, or
has the potential to be repeated, over time. Both students who are bullied and
who bully others may have serious, lasting problems. In order to be considered bullying, the
behavior must be aggressive and include an imbalance of power repeatedly. Students who bully use their power—such as physical
strength, access to embarrassing information, or popularity—to control or harm
others. Power imbalances can change over
time and in different situations, even if they involve the same people. Bullying behaviors happen more than once or
have the potential to happen more than once.
Bullying includes actions such as making threats, spreading rumors,
attacking someone physically or verbally, and excluding someone from a group on
purpose.
Types of Bullying:
There are three types of bullying.
One type is verbal bullying.
Verbal bullying is saying or writing mean things. Verbal bullying includes teasing,
name-calling, inappropriate sexual comments, taunting, and threatening to cause
harm. A second type of bullying is
social bullying. Social bullying is
sometimes referred to as relational bullying.
It involves hurting someone’s reputation or relationships. Social bullying includes intentionally
excluding someone, telling other children not to be friends with someone,
spreading rumors about someone and embarrassing someone in public. The third
type of bullying is physical bullying.
Physical bullying involves hurting a person’s body or possessions. Physical bullying includes hitting, kicking,
pinching, spitting, tripping, pushing, taking or breaking someone’s things, and
making mean or rude hand gestures.
Where and when does bullying take place? Bullying can occur
during or after school hours. While most reported
bullying happens in the school building, a significant percentage also happens
in places like on the playground or the bus.
It can also happen travelling to or from school, in the youth’s
neighborhood, or on the internet (cyberbullying).
What is Cyberbullying? Cyberbullying is
bullying that takes place using electronic technology. Electronic technology includes devices and
equipment such as cell phones, computers, and tablets as well as communication
tools including social media sites, text messages, chat, and websites. Examples of cyberbullying include mean text
messages or emails, rumors sent by email or posted on social networking sites,
and embarrassing pictures, videos, websites, or fake profiles. Students who are being cyberbullied are often
bullied in person as well. Additionally, students who are cyberbullied have a
harder time getting away from the behavior.
Cyberbullying can happen 24 hours a day, 7 days a week, and reach a
student even when he or she is alone. It
can happen any time of the day or night.
Cyberbullying messages and images can be posted anonymously and
distributed quickly to a very wide audience. It can be difficult and sometimes
impossible to trace the source. Deleting
inappropriate or harassing messages, texts, and pictures is extremely difficult
after they have been posted or sent.
Whether done in person or through technology, the effects of bullying
are similar.
Bullying of students with disabilities
can amount to a denial of a FAPE as it creates a hostile learning environment
such that may interfere with the student’s ability to access the
curriculum. For instance, they may not
want to go to school, or they may be distracted by thoughts of the bully.
The U.S. Department of Education policy
guidance states that “disability harassment that adversely affects an
elementary or secondary student's education may also amount to a denial of FAPE
under the IDEA. Harassment of a student
based on disability may decrease the student's ability to benefit from his or
her education and amount to a denial of FAPE.”
Dear Colleague Letter regarding
Disability Harassment, 7/25/2000.
There are a growing number of cases and
court decisions concerning bullying and finding that peer-on-peer bullying –
and bullying by the student’s teacher – can result in a denial of FAPE in
violation of the IDEA and/or 504:
·
Bullying
that is severe enough to alter the condition of student's education and create
an abusive educational environment, coupled with the knowledge and deliberate
indifference by school officials, is one way a student may establish a
violation of the Rehabilitation Act. D.A. v. Meridian Joint School Dist. No. 2,
--- F.R.D. ----, 2013 WL 588761 (D.Idaho, 2013).
·
A
teacher’s deliberate indifference to the abuse and teasing of a student with a
disability could result in the denial of a FAPE under the IDEA. M.L. v.
Fed. Way Sch. Dist., 394 F.3d 634, 650 (9th Cir.2005).
·
A
student with emotional disabilities was denied FAPE based on the likelihood
that a proposed placement would subject the student to continued bullying
because of his perceived effeminacy. Shore Regional High School Board of
Education v. P.S., 381 F.3d 194 (3d Cir., 2004). The placement of the student at the local
high school was inappropriate because the school would not be able to prevent
or stop the continued bullying. The
student had previously been subjected to relentless physical and verbal
harassment as well as social isolation because he was "girlish." Because the placement would expose him to
further bullying and harassment, the placement would in effect deny the student
FAPE.
When the special needs student is
the perpetrator, or bully, the student should be referred for a Functional
Behavior Assessment (“FBA”) from which a Behavior Intervention Plan (“BIP”) can
be developed and implemented.
Best practices for schools:
·
Develop and
publicize comprehensive policies regarding bullying, harassing, and hazing;
·
Explain to
students exactly what they should do if they are bullied or witness bullying;
·
Have a
formal reporting procedure in place;
·
Inform
students that they will not be punished for reporting bullying in good faith.
·
Consider
having an online system where students can report bullying. Many students become nervous, scared, or
shy, and having a more informal system for students to report bullying may
encourage them to do so;
·
Respond
promptly to all incidents and reports;
·
Consider
the totality of circumstances presented when determining whether the conduct
objectively constitutes harassment or bullying;
·
Enforce the
policy consistently;
·
Be sure
that all students receive and review a copy of the student handbook containing
a copy of the anti-bullying/harassment/hazing policies;
·
Make it
clear, particularly to athletes and upperclassmen, that hazing will not be
tolerated and that students will face serious discipline, including criminal charges,
for any violations;
·
Be aware of
the potential infringement of students’ First Amendment rights.
·
Even when
disciplinary action is not allowed, take steps to inform and engage parents in
the anti-bullying efforts.
Resources:
http://www.stopbullying.gov/prevention/at-school/
http://www.stopbullying.gov/prevention/
http://archive.adl.org/education/cyberbullying/workshops.asp
Manifestation Determination Review ("MDR")
The IDEA protects students with disabilities in disciplinary proceedings that may result in long term suspension or expulsion. Suspension over 10 days in a school year requires a Manifestation Determination Review (“MDR”). A student with a disability (with an IEP) may be suspended for up to 10 school days in a school year without FAPE being provided. Suspension for more than 10 school days is considered a long term suspension.
The implementing regulations of the
IDEA, at 34 C.F.R. § 300.530(e), require that a school conduct an MDR when the
decision is made to change a student’s placement because of a
disciplinary infraction. A disciplinary “change
of placement” occurs for a student with a disability if: (1) The removal is for
more than 10 consecutive school days; or (2) he student has been subjected to a
series of removals that constitute a pattern because the series of removals
total more than 10 school days in a school year; because the student's behavior
is substantially similar to the student's behavior in previous incidents that
resulted in the series of removals; and because of additional factors, such as
the length of each removal, the total amount of time the student has been
removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536.
If
a student with a disability may be suspended for more than 10 school days due
to a code of conduct violation, the public agency, parents, and relevant IEP
Team members (determined by parents and district) must have a meeting to
determine whether the student's behavior was a manifestation of his/her
disability. At the meeting, all relevant information in the student's file, the
IEP, teachers' observations and any other relevant information parents provide
must be reviewed in order to determine whether the conduct was caused by or had
a direct and substantial relationship to the student's disability, or whether
the conduct was the direct result of the public agency's failure to implement
the student's IEP. If either of the two conditions above were met then there
should be a determination that the conduct was a manifestation of the student's
disability. If it is determined that it was the public agency's failure to
implement the student's IEP, then the public agency must take immediate steps
to remedy those failures. 34 C.F.R. §300.530(e). When the determination is that
the conduct was a manifestation of the student's disability, then the IEP Team
must either conduct an FBA (unless the public agency already conducted one
before the behavior violation occurred) and implement a BIP for the student or,
if there is already a BIP in existence for the student, then the public agency
must review the BIP and modify the BIP if necessary to address the behavior,
and the student must be returned to the placement from which he/she was removed
— unless the parents and public agency agree to a change of placement as part
of the BIP or modification to the BIP.
Exception: The student may be placed in an
interim alternative educational setting for no more than 45 school days without
a manifestation determination review IF the student carried or possessed a
weapon at school, knowingly possessed or used illegal drugs, sold or solicited
controlled substances or inflicted serious bodily injury on someone else while
at school or on school premises or at a school function. 34 C.F.R. §300.530 (f)
and (g).
In
cases where the behavior is determined to have NOT been a manifestation of the
student's disability and the disciplinary changes in placement will exceed 10
consecutive school days, the same discipline may be imposed on the student with
disabilities as a student without disabilities. HOWEVER, the student with an
IEP must be provided with a FAPE; special educational services to enable the
student to continue participating in the general education curriculum, even in
another setting and make progress toward meeting the student's IEP goals.
Additionally, if appropriate, the student is to receive a FBA, behavioral
intervention services and modifications to address the conduct so that it does
not recur. 34 C.F.R. §300.530 (c) and (d).
If
parents disagree with the outcome of the MDR, they may appeal by filing file a
due process complaint.
Students
with Section 504 Plan:
Students with 504 plans have similar protections to those students with IEPs.
But there are some differences. The public agency may discipline a student with
a disability under Section 504 just as it would a student without a disability
if the student is currently engaging in the illegal use of drugs or use of
alcohol, or in possession of illegal drugs or alcohol.
Additionally,
the public agency is not required to provide educational services during a long
term suspension or expulsion to a student with a 504 that committed a violation
that was determined not to be a manifestation of his/her disability.
Suspension and Expulsion of Students
By Kirsch-Goodwin & Kirsch, PLLC, Arizona Education Attorneys
Discipline of students in Arizona public schools is covered
in Arizona Revised Statutes at Title 15 (Education), Chapter 8 (School
Attendance), Article 3 (Suspension and Expulsion of Pupils), Sections 15-840
through 15-844. In Arizona, all students
are required to comply with school rules and submit to the authority of
teachers and school administrators. A.R.S. § 15-841(A).
Students with IEPs and 504 Plans have extra
protections under federal and state laws when it comes to discipline. But the cornerstone of student discipline is balancing two separate rights of students: the
constitutional right to a public education, and the right to a safe and orderly learning environment. Procedures and laws in place to protect students from arbitrary and
wrongful discipline are necessary, as are procedures and laws to allow schools
to discipline disruptive and dangerous students.
First, let’s get the terminology down:
Suspension is the temporary withdrawal of
attending school for a specified period of time. It can be “short term” – up to ten (10) days,
or “long term,” eleven (11) or more days. A.R.S. § 15-840.
Expulsion is the “permanent withdrawal of the
privilege of attending a school unless the governing board [of the school
district or charter school] reinstates the privilege of attending the school.” A.R.S. § 15-840. Usually a student can re-apply for admission
after one year. Although education is a
right, note that the Arizona statute still calls it a “privilege.”
Students in Arizona may be expelled
for continued open defiance of authority, continued disruptive or disorderly
behavior, violent behavior that includes use or display of a dangerous
instrument or a deadly weapon ("anything designed for lethal use, including
a firearm"), use or possession of a gun, or excessive absenteeism."
A.R.S. § 15-841(B). Students over age 16
and those who completed the course of study through tenth grade may be expelled
for excessive absenteeism. Id.
The law also allows school districts to expel students for actions other
than those listed in the statutes as the school district deems
appropriate." Id.
A school district or charter school
“shall expel for a period of not less than one year” a
student who brings a firearm to a school, or a student who is determined to
have threatened an educational institution, except that the school district or
charter school may modify these expulsion requirements for a student on a case
by case basis. A.R.S. §§ 15-841(G) and
(H). These subsections “shall be
construed consistently with the requirements of the [IDEA].” Id.
The “Gun-Free Schools Act,” 20
U.S.C. § 1751, requires each state that
receives federal funds to have in effect a state law requiring expulsion from
school for not less than one year any student who brings a weapon to
campus. Arizona’s state law is A.R.S. §
15-841(G). However, schools are not
permitted or required to expel students with IEPs without adherence to the
procedural safeguards of the IDEA and the Gun-Fee Schools Act does not
eliminate the school district's obligation to provide the student with a free
appropriate public education (FAPE) following the expulsion. Congressional guidance concerning state and
local responsibilities under Gun-Free Schools Act states that students with
disabilities removed from school pursuant to the Act must be provided with
alternative programming during the disciplinary exclusion, and the Act
specifically states that its provisions must be construed consistently with the
IDEA. Magyar By and Through Magyar v.
Tucson Unified School Dist., D.Ariz.1997, 958 F.Supp. 1423.
Students
in Arizona may be expelled for continued open defiance of authority, continued
disruptive or disorderly behavior, violent behavior that includes use or
display of a dangerous instrument or a deadly weapon (“anything designed for
lethal use, including a firearm”), use or possession of a gun, or excessive
absenteeism.” A.R.S. § 15-841(B). Students over age 16 and those who completed
the course of study through tenth grade may be expelled for excessive absenteeism. Id.
The law also allows school districts to expel students for actions other
than those listed in the statutes as the school district deems
appropriate.” Id.
There
are numerous sources of law governing student discipline, but no federal statutes. States’ Constitutions typically guarantee every child between five
and 18 years of age the right to an educ. But that right to education is of course impacted by school suspensions
and expulsions.
Schools districts and charter
schools have student codes of conduct that provide for multi-tiered, or
graduated, consequences, based on number of times the behavior occurred and the
severity of the behavior. The codes
identify the offenses or circumstances that either must (look for the word
“shall”) or may (permissive, not mandatory) either long-term suspension or
expulsion.
All students have a right to due process before
being suspended for more than ten (10) days.
That right to due process was established in 1975 in the Supreme Court
case, Goss v. Lopez, 419 U.S. 565 (1975). Dwight Lopez was a high school student in Ohio. In February 1971, a number of students were involved in a disturbance
in the school cafeteria causing property damage. Dwight
denied
he was involved, but he was suspended for
ten days before he could give his side of the story. Schools in Ohio were allowed to suspend or
expel a student for misconduct as long as their parents were informed of the
discipline and the reasons for it within
24 hours. A student who was expelled was allowed to
appeal the decision to the Board of
Education but a student who was suspended was not allowed to appeal. Dwight
and eight other students who were suspended brought suit in Federal District Court claiming violation of their 14th Amendment right to due process. The
14th
Amendment states that: [No State …shall] deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.” The
District Court ruled in favor of the students, and the school district appealed
the decision to the United States Supreme Court. The Supreme Court handed down its decision in January 1975 holding (declaring) that students facing
suspension "must be given some kind of notice and afforded some kind of
hearing" before being deprived of their education.” The United States Supreme Court held that all public
school students have a legitimate entitlement to a public education that rises
to the level of a constitutionally
protected property interest.
Thus,
a student’s property interest in their education cannot be taken from them without prior adherence to minimum due process standards. Thus, all removals of students
from education for misconduct must comply with appropriate due process standards of notice and opportunity
to be heard. The Supreme Court also held that lengthy
suspensions or expulsions (over 10 consecutive school days) require a
commensurately higher degree of formality in the due process protections than would short-term suspensions in response to more minor
misbehavior. But all disciplinary removals require some degree of
notice and opportunity to be heard.
Thus, all students suspended for fewer than 10 days
are entitled to minimal due process, which is very informal, often just
a verbal conversation between a student and a school administrator. For a
suspension expected to last longer than 10 days, which is a long-term
suspension, or an expulsion, a formal hearing is required – called a
“disciplinary due process hearing,” not to be confused with an IDEA due process
hearing - for both general education students and students with disabilities
(although students with an IEP may not be expelled – discussed below). Thus, for long-term suspensions (more than 10
days) and expulsions, the elements of due process are much more formal.
Each school district and charter school has its own
specific disciplinary due process hearing procedures, but most will include
the following elements: notice and fair
hearing with opportunity to be heard. The
notice to the student and parent must be in writing, provide the date, time and
location of the hearing, the specific charges, including applicable facts,
rules violated, and a copy of the rules should be provided. The punishment being considered must be set
forth, as well as a list of witnesses and copies of exhibits must be provided.
Also, the name of the hearing officer must be provided. Every school district
and charter school has in its policies the number of days in advance that the
notice is to be sent and how it is to be sent, for example, first-class mail or
certified mail.
The student and parent should also be informed of
their right to attend the hearing, bring counsel at their own expense, access
adverse evidence and student records prior to hearing, present witnesses and
cross examine the district/school’s witnesses, make a recording of the hearing, or obtain a copy of
the recording of the hearing. The parent
is also given the option of having the hearing closed or open. The burden of proof is on the administration
of the district or charter school. Both
sides should have an opportunity to present an opening and closing statement if
desired, and to present and cross-examine witnesses.
The hearing is held before a so called “Independent
Hearing Officer” (“IHO”). The IHO should
not have contact with any of the parties unless the parties are both present, and
unless contact is limited to items like scheduling of the hearing, should not
pre-judge the student prior to the hearing. and may be an employee of the
district/charter school, but should not be an employee with a stake in the
matter (e.g. the principal who is recommending long-term suspension or
expulsion).
Hearing decisions should be in writing, should
summarize the events of the hearing, should list applicable appeal procedures,
and state the appeal procedures. Decisions
regarding long-term suspensions can be appealed to Governing Board of the school
district or charter school. Decisions
regarding expulsions are not appealable if the hearing was conducted by
Governing Board. If a recommendation was
made to the Governing Board by an appointed Hearing Officer, the recommendation
can be argued before the Governing Board makes the final decision regarding the
expulsion.
Bear in mind that some states, including Arizona, allow school districts as
well as charter schools to refuse to admit any student who has been expelled
from another educational institution or who is in the process of being expelled
from another educational institution.
A.R.S. §§ 15-184(I)(charter schools)(“ A charter school may refuse to
admit any pupil who has been expelled from another educational institution or
who is in the process of being expelled from another educational institution”) and 15-841(C)(public school districts)(“ A school district may
refuse to admit any pupil who has been expelled from another educational
institution or who is in the process of being expelled from another educational
institution”).
U.S. Department of Education Releases "COVID-19 Handbook, Volume 2: Roadmap to Reopening Safely and Meeting All Students' Needs"
APRIL 9, 2021
Today, the U.S. Department of Education (Department) released the COVID-19 Handbook, Volume 2: Roadmap to Reopening Safely and Meeting All Students' Needs to provide additional strategies for safely reopening all of America's schools and to promote educational equity by addressing opportunity gaps that have been exacerbated by the pandemic.
Building off of Volume 1: Strategies for Safely Reopening Elementary and Secondary Schools, which focused on health and safety measures that schools can use to successfully implement the Centers for Disease Control and Prevention's (CDC) K-12 Operational Strategy, Volume 2 of the Handbook focuses on research-based strategies to address the social, emotional, mental-health, and academic impacts of the pandemic on students, educators, and staff, such as how to address any potential anxiety or depression some may face as a result of the COVID-19 pandemic and nearly a year of remote learning.
"There is simply no substitute for in-person learning," said U.S. Secretary of Education Miguel Cardona. "But as schools reopen their doors, we must also make sure that we are meeting students' social, emotional, physical, mental-health, and academic needs, and addressing gaps that existed before—and were exacerbated by—the pandemic. This is an opportunity for us to not only reopen our schools safely, but to make sure our education systems are truly serving all our nation's students."
Today's release is part of the Biden-Harris Administration's broader effort to provide states, districts, schools, and communities with the resources and support they need to return to in-person learning safely and quickly, and achieve the President's goal of reopening a majority of K-8 schools within the first 100 days of the Administration. Volume 2 identifies strategies states, districts, schools, and communities can use when implementing funding they have received from the American Rescue Plan, which invests $130 billion in safely reopening schools, sustaining their safe in-person operation, and addressing the impact of COVID-19.
Volume 2 also aims to meet President Biden's call for communities and the country to "build back better." As states and districts continue to reopen schools safely, the Department is encouraging communities to implement strategies that address the social, emotional, and mental-health needs of students, including the disproportionate toll COVID-19 has had on underserved communities, and address inequities in our education system that predate and have been made worse by the pandemic.
In February, the Department released Volume 1 of the COVID-19 Handbook, which provides educators and staff with practical examples, roadmaps, and tools to implement the CDC's K-12 operational strategy for in-person learning, including the recommended five key mitigation measures (universal and correct use of masks; physical distancing; handwashing and respiratory etiquette; maintaining clean and healthy facilities, including through ventilation; and contact tracing in combination with isolation and quarantine).
Since the release of Volume 1, the Department and CDC have met with educators; state and local elected officials, including governors, mayors, and legislative leaders in every state and territory; chief state school officers; state boards of education; and stakeholder organizations across the country about how to safely reopen schools. Volume 2 includes many strategies and resources informed by these conversations and recommended by education, civil rights, and research organizations.
As part of the launch of Volume 2, Secretary Cardona will hold a virtual roundtable with a diverse group of students and parents today, Friday, April 9, to discuss how the COVID-19 pandemic has affected their education and their lives, and how the tools and resources in Volume 2 of the handbook can help assist schools and communities in addressing student needs.
Strategies described in Volume 2 can be supported by funding under the American Rescue Plan. Each section provides strategies and considerations for meeting the needs of underserved students. The sections include:
- Providing school meals regardless of educational setting.
- Meeting the social, emotional, and mental-health needs of students.
- Providing all students with access to a safe and inclusive learning environment.
- Accelerating learning through in-classroom instructional approaches, tutoring, and expanded learning time.
- Supporting equitable access and effective use of technology for teaching and learning.
- Using data about students' opportunities to learn to help target resources and support.
- Addressing resource inequities.
- Stabilizing a diverse and qualified educator workforce.
- Supporting educator and staff well-being.
The Department will continue to provide support and resources to schools and communities as they work to return to in-person instruction safely. Later this month, the Department will launch its "Safer Schools and Campuses Best Practices Clearinghouse," which is open for submissions from states, schools, districts, and individuals nationwide. Once launched, the Clearinghouse will highlight lessons learned and best practices that can help schools and districts identify opportunities to utilize American Rescue Plan funds to meet their unique needs.
Discipline, Restraint and Seclusion of Special Ed Students
From Kirsch-Goodwin & Kirsch, PLLC, Education Attorneys
When we speak of restraints in school, we are usually referring to physical, such as being held by a staff member or mechanical, such as straps or handcuffs. Isolation is when a student is restricted to a certain location involuntarily and not permitted to leave. Some schools have rooms they call seclusion or, euphemistically, “scream rooms” or “calming rooms.”
To the extent that restraint could be considered
corporal punishment, the U.S. Supreme Court has refused to impose
constitutional restrictions on the common law privilege to allow educators use
of “reasonable” corporal punishment. Ingraham v. Wright, 430 U.S. 651,
97 S.Ct. 1401 (1977). However, many Circuits including the 9th Circuit (Arizona
is in the 9th Circuit) have held that “excessive and unreasonable corporal
punishment of public school students violates [students’] substantive due
process rights.” Preschooler II v.
Clark County School Bd. Of Trustees, 479 F.3d 1175, 1181-1182 (9th
Cir.2007).
Arizona law allows corporal punishment, leaving it to the school district
governing board to provide procedures for the use of corporal punishment, A.R.S.
§ 15-843(B)(2):
|
15-843. Pupil
disciplinary proceedings B.
The governing board of any school district, in consultation with the teachers
and parents of the school district, shall prescribe rules for the discipline,
suspension and expulsion of pupils. The rules shall be consistent with
the constitutional rights of pupils and shall include at least the following: … 2.
Procedures for the use of corporal punishment if allowed by the governing
board. |
The IDEA does not specifically address restraint or seclusion in schools. State laws and regulations vary on use of
restraints. Back in 2010, Congress looked at the alarming number
of fatalities and injuries caused by restraints and seclusions in schools and
considered legislation with a House bill titled “Keeping All Students Safe
Act,” and two Senate bills titled “Preventing Harmful Restraint and Seclusion
in Schools Act” and “Keeping All Students Safe Act.” The bills would have limited the use of
restraint and seclusion in schools to cases of imminent danger of physical
injury to the student or others, provided criteria and steps for the proper use
of restraint or seclusion, and promoted the use of positive reinforcement and
other less restrictive behavioral interventions. The measures also would have authorized
support to States in adopting more stringent oversight of the use of restraint
and seclusion in schools, and would have established requirements for
collecting data on the use of these practices in schools. Following debate, no
federal legislation was enacted, and neither has action on such legislation
been taken to date. See U.S. Department of Education, Restraint
and Seclusion: Resource Document, Washington, D.C., 2012 https://sites.ed.gov/idea/files/restraints-and-seclusion-resources.pdf
Thus, it is up to the individual states.
Arizona law
is found in the statute:
|
A.R.S. § 15-105 Use of restraint and
seclusion techniques; requirements; definitions A. A
school may permit the use of restraint or seclusion techniques on any pupil
if both of the following apply: 1. The pupil’s behavior presents
an imminent danger of bodily harm to the pupil or others. 2. Less
restrictive interventions appear insufficient to mitigate the imminent danger
of bodily harm. B. If a restraint or seclusion technique is used on a
pupil: 1.
School personnel shall maintain continuous visual observation and monitoring
of the pupil while the restraint or seclusion technique is in use. 2. The
restraint or seclusion technique shall end when the pupil’s behavior no
longer presents an imminent danger to the pupil or others. 3. The
restraint or seclusion technique shall be used only by school personnel who
are trained in the safe and effective use of restraint and seclusion
techniques unless an emergency situation does not allow sufficient time to
summon trained personnel. 4. The
restraint technique employed may not impede the pupil’s ability to breathe. 5. The
restraint technique may not be out of proportion to the pupil’s age or
physical condition. C. Schools may establish policies and procedures for the
use of restraint or seclusion techniques in a school safety or crisis
intervention plan if the plan is not specific to any individual pupil. D. Schools shall establish reporting and documentation
procedures to be followed when a restraint or seclusion technique has been
used on a pupil. The procedures shall include the following
requirements: 1.
School personnel shall provide the pupil’s parent or guardian with written or
oral notice on the same day that the incident occurred, unless circumstances
prevent same-day notification. If the notice is not provided on the same day
of the incident, notice shall be given within twenty-four hours after the
incident. 2.
Within a reasonable time following the incident, school personnel shall
provide the pupil’s parent or guardian with written documentation that
includes information about any persons, locations or activities that may have
triggered the behavior, if known, and specific information about the behavior
and its precursors, the type of restraint or seclusion technique used and the
duration of its use. 3.
Schools shall review strategies used to address a pupil’s dangerous behavior
if there has been repeated use of restraint or seclusion techniques for the
pupil during a school year. The review shall include a review of the
incidents in which restraint or seclusion technique were used and an analysis
of how future incidents may be avoided, including whether the pupil requires
a functional behavioral assessment. E. If a school district or charter school summons law
enforcement instead of using a restraint or seclusion technique on a pupil,
the school shall comply with the reporting, documentation and review
procedures established under subsection D of this section. Notwithstanding
this section, school resource officers are authorized to respond to
situations that present the imminent danger of bodily harm according to
protocols established by their law enforcement agency. F. This section does not prohibit
schools from adopting policies pursuant to § 15-843, subsection B, paragraph 3. G. For the purposes of this section: 1.
“Restraint” means any method or device that immobilizes or reduces the
ability of a pupil to move the pupil’s torso, arms, legs or head freely,
including physical force or mechanical devices. Restraint does not include
any of the following: (a)
Methods or devices implemented by trained school personnel or used by a pupil
for the specific and approved therapeutic or safety purposes for which the
method or device is designed and, if applicable, prescribed. (b) The
temporary touching or holding of the hand, wrist, arm, shoulder or back for
the purpose of inducing a pupil to comply with a reasonable request or to go
to a safe location. (c) The
brief holding of a pupil by one adult for the purpose of calming or
comforting the pupil. (d)
Physical force used to take a weapon away from a pupil or to separate and
remove a pupil from another person when the pupil is engaged in a physical
assault on another person. 2. “School” means a school district, a charter school, a
public or private special education school that provides services to pupils
placed by a public school, the Arizona state schools for the deaf and the
blind and a private school. 3. “Seclusion”
means the involuntary confinement of a pupil alone in a room from which
egress is prevented. Seclusion does not include the use of a voluntary
behavior management technique, including a timeout location, as part of a
pupil’s education plan, individual safety plan, behavioral plan or
individualized education program that involves the pupil’s separation from a
larger group for purposes of calming. Added by Laws 2015, Ch. 300, § 1. |
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