Wednesday, May 5, 2021

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 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

Effective: July 3, 2015

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.


 Kirsch-Goodwin & Kirsch, PLLC

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