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):
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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:
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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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