Welcome to 'Keeping our Schools Safe, Addressing Restraint and Seclusion in Schools' workshop. Please note this session is being recorded. All cameras should be off and all mics should be muted until or unless you're presenting, sharing or asking a question. Thank you.
SELENE ALMAZAN: Welcome, everybody. My name is Selena Alamazan. I'm the director and with the council of parent attorneys and advocates. I'm on this panel with Kelly Israel, Leslie Margolis and Jessie Weber. Thank you for coming.
I'm going to give an overview today of where we are nationally and this is keeping our schools safe, addressing restraint and seclusion in schools.
We'll talk about this generally and we divided it all up so hopefully we'll have some back and forth and some time to do some brainstorming at the end and maybe think things through.
So the issue of restraint and seclusion is not just one that COPA has been interested in but the disability rights network, a variety of other organizations have been working on this depressingly enough say since — for some of us, like Leslie and I since the late '80s and the beginning of the '90s. We gained momentum in the early 2000s and there was a report that came out about the time that COPAA and ODNR about students who were being secluded in the schools.
COPAA came out with a statement in 2008. In 2009, COPAA issued reports on the same. Despite all of these efforts for the last 12, 13 years, in October of 2020, the United States Department of Education's office for civil rights issued its most recent civil rights data collection, the CRDC data. That report on the use of restraint seclusion on children with disabilities in K-12 schools had very disturbing data that Leslie is going to go over in depth.
But for the 2017 2018 school year, there was no real improvement on the number of children who were being restrained and secluded which was very depressing.
As I said, the GAO released a report back in 2009 where they studied hundreds of cases of abuse and released a report finding that there were numerous cases for — of children in schools who had paid the ultimate price for misbehavior and they suffered the death penalty for misbehavior in schools. These were children with disabilities.
It is alarming because the behavior may have been or essentially was related to the disability and the behavior may have been a manifestation of their disability. The GAO study in 2009 noted they were secluded more frequently than their peers who did not have disabilities. Restraint and seclusion are dangerous. They can cause death. Certainly they can cause trauma. One of the things that COPAA started looking at last summer was the data on how many states have laws that govern the use of restraint and seclusion, how many states ban the use of seclusion, how many states require reporting on the use of seclusion and restraint, how many states have requirements that states notify parents of restraint and seclusion. In order to get a sense of where states were and also to bolster the idea or the notion that we need a federal law.
And there is one pending right now to keeping all students safe act introduced in every congress I think since 2008 or 2009. It will be reintroduced in this current congress.
The definitions for restraint and seclusion are the office for civil rights defines restraint as restraining the student's ability to move his or her torso, arms, head or legs freely. There are three types of restraint. Mechanical restraint, physical restraint and chemical restraint.
Mechanical restraint is the use of any device or equipment that restricts a student's freedom of movement. Physical restraint is the physical restriction that immobilizes or reduces the ability of a student to move their torso, arms, legs or head freely.
A physical escort to move a student from one place to the next is not included in the definition of a restraint. Chemical restraints are, when medication or drugs are used to control behavior.
And then looking at seclusion, the office for civil rights defines seclusion as confining a student alone in a room or area that they are not permitted to leave. And this includes situations in which a door is locked, blocked by an object, blocked by a person, or held closed.
The use of seclusion not only limits a student's bodily integrity but denies a child with a disability the right to a free, appropriate public education in the least restrictive environment because the child is then excluded from participation in the curriculum while in seclusion.
There are issues with the definitions in states which is another reason why we need a federal law. Take Massachusetts, for example. Massachusetts definition of seclusion is it shall be permitted in public education programs but it goes on to state that time out shall mean a behavioral support strategy in which a student temporarily separates from the learning activity either by choice or by direction from staff for the purpose of calming. During time out, a student must be continuously observed.
We know that students have suffered a range of injuries due to these practices in public schools. And that these injuries are physical, psychological, social, emotional. Students have died from cardio-respiratory arrest while being restrained. They've had fatal cardiac dysrhythmia, strangulation as well as being crushed.
Serious bodily injury has also occurred like muscle injuries, blunt force trauma to the head, lacerations, broken bones, abrasions, and of course, the life long trauma and fear that's caused by these practices of restraint and seclusion.
As I said, COPAA is concerned about the lack of uniformity across the various states that protects vulnerable children from these practices. The case law on restraint and seclusion is equally depressing. It all goes back to Ingram vs. Wright where a student in Florida was paddled because there are the states still that allow corporal punishment. And so the student in Florida in Ingram vs. Wright was paddled and suffered injuries that required medical care.
And the Supreme Court said that the 8th amendment's ban on cruel and unusual punishment doesn't apply to corporal punishment in public schools. So that's kind of what we're up against where this practice of restraint and seclusion particularly in the southern states that continue to allow, by statute and regulation, the use of corporal punishment.
So after Ingram where the Supreme Court showed judicial deference to the judgment of school authorities regarding the education and the punishment of children in public school, it has been difficult to hold school systems and school districts and teachers accountable for the things that happen in public school buildings.
I will just go through it really briefly. The Romero case from 1982 held that this case involved the rights of involuntarily committed people in institutions and those with intellectual disabilities who were being held in institutions. The court said that those who lived in these institutions who were involuntarily committed had liberty interests in safe confinement and freedom from bodily restraint under the 14th amendment. That sounds great, right, for application, to restraint seclusion cases.
Unfortunately, not so much. The fourth Circuit in 1980 prior to Youngberg but in look at the application of the 14th amendment and the 8th amendment, a student was severely injured in school in West Virginia because she was hit with a hard, rubber paddle. She was hospitalized for the trauma that was inflicted on her on the hip — thigh and her buttocks and the parents sued. The 4th circuit said a shocks the standard should be considered with corporal punishment in the process of due process claims. This has been a very high and difficult standard for plaintiffs to meet in the ensuing years. It seems that nothing shocks the conscience of an appellate court or of a U.S. district court.
TW versus Wilson out of Florida back in 2010, COPAA wrote a brief on that. A teacher insulted a student a number of times and provoked him. The student suffered significant injuries, trauma from the instances in this self contained classroom. The 11th Circuit found that the teacher's actions were not so arbitrary and egregious to support a complaint of a violation of substantive due process.
It goes on from there. The 7th Circuit, same thing. The 10th Circuit, same thing. Ebony S, COPAA wrote an amicus brief. It is a good example of a mechanical restraint. Ebony was a student with a disability. She had Down’s syndrome and she was seated every day in a wraparound desk and this wraparound desk was secured so she couldn't get out of it. One time she tried to get out of it by crawling under it and she got caught and broke her arm. The parents sued. The 10th Circuit said that the mechanical restraint did not rise to improper or unlawful seizure under the 4th amendment. Also said that there was no intention, no intentional negligence on the part of the school district. She didn't think she would get hurt. They didn't mean for her to get hurt. Finally, the parent had agreed to the desk in the IEP and the desk was in the IEP. So the parent did not get any relief from appellate court or district court. However, subsequently, the parent sued in state court under state tort claims and was awarded an award by a jury.
A couple of things that are there that we know there are some state actions under state regulations and state tort claims and some human rights — human rights statutes that are on the books that allow some form of relief for children who are harmed in schools.
Out of Washington State court, case comes to mind. State claims. I think there were ten students who were subjected to abuse in a classroom. That was allowed to go forward under the state tort claims. There are the other ones we know of that were not as successful. The King vs. Pioneer Regional Educational Service Agency. The child in that case was in what they call the G Net schools, the schools created for students who have the label of emotional disability and he had expressed some suicidal — couldn't have his belt. They gave him a rope to hold his pants up and put him in a seclusion room where he ultimately hung himself on the back of a doorknob. And the Georgia court said that there was no denial of a free, appropriate public education. There was no relief for the family as their child had died.
So all of these are very depressing results of pressing constitutional claims. I don't understand it. I've tried to understand it all of these years. I don't understand what would shock the conscience of a child dying in a public-school building.
But I think as the panel goes on and everybody has further input, we're going to see that there are some remedies. There is some — I hope, light at the end of the tunnel for this issue that many of us have been working on for many years. I hold out a lot of hope.
I will let Leslie go and then we'll have Kelly and Jessie after that, I think. Thank you.
LESLIE SEID MARGOLIS: I'm Leslie. DRN is our umbrella organization for all of the protection and advocacy agencies. As Selene said, I, like, she have been working on restraint and seclusion issues for many, many years, both policy work and also representing children.
In fact, I was in an IEP meeting earlier this afternoon arguing against putting seclusion on an IEP for one of my clients. So I live this issue on a daily basis with my clients.
So there is a little bit of sunshine in this fairly unrelentingly depressing picture that Selene painted. I'm going to start with that.
Last summer, summer of 2020, the American Bar Association adopted a resolution that supports the idea of federal, state, local, territorial and tribal governments to adopt and enforce legislation in educational policy that would do four things.
One, it would prohibit school personnel from using seclusion, mechanical and chemical restraints on preschool, elementary and secondary students. That would prohibit school personnel from using physical restraint on preschool, elementary and secondary students unless the student's behavior poses an imminent danger of physical harm to self or others. And only after all less intrusive, nonphysical interventions have been tried and failed or have been deemed inappropriate to protect the student and others.
And the third thing that proposed — that legislation or policy should do is prohibit in situations where physical restraint is used. The use of restraints in a face down position or any other position that is likely to impair a student's ability to breathe or to communicate distress. That places pressure on a student's head, neck or torso or obstructs a staff member's view of a student's face. And then the fourth would be that requires professional development in on going training in positive behavior interventions in trauma informed care including crisis de escalation, restorative practices and behavior management practices for all school personnel.
So the drafting process for this resolution took about a year on and off. Ultimately, it was not a controversial resolution. The ABA membership passed the resolution by a vote of 358 19. I'm curious who the 19 people were. But it was an overwhelming vote.
I think what one of the significant things about this is this was the American Bar Association. Nine advocacy organization for people with disabilities. So this is a very strong, significant policy statement that supports legislation and policy adopting the principles that so many of us who do this work have been advocating for years.
So it is a really nice public policy statement by a pretty mainstream legal organization.
I want to turn now to the civil rights data collection that Selene mentioned. This is a survey of nearly all public schools and school districts in the United States. It is done by the United States Department of Education's office for civil rights. And what it does is collect and measure data that relates to federal civil rights laws. It is published every two years. In 2017, they issued the data for 2018 2019. This data includes information about everything you can think of. Discipline, graduation, all sorts of issues. What we care about today is the information about the use of restraint and seclusion and it cover children with disabilities in K-12.
Just in general, the data covers 50.9 million students from 17,604 school districts in 97,632 schools. Of these students, 13% were students who were served under the individuals with disabilities education act, the IDEA. 3% were students served only under section 504 of the Rehabilitation Act.
The overview that was attached to the data — the data release, includes a summary of the Department of Education's 2019 initiative to address — and I quote "the possible, inappropriate use of restraint and seclusion in our nation's public, elementary and secondary schools as it applies to students with disabilities." The initiative was a partnership between the office for civil rights and the office of special education and rehabilitative services to provide support and technical assistance to schools.
The initiative had three components. One was compliance reviews, and data reviews and in the civil rights data collection and the other is technical assistance.
I would note that the previous release of data had been quite controversial because there were a number of school districts that had reported patently inaccurate data. Many school districts reported no use of restraint and seclusion and that was clearly not true. So there was a lot of scurrying to remedy that. And that piece of this initiative was a direct response to that.
It was also important to note that the office for civil rights recognizes that there may be circumstances under which section 504 and title 2 of the ADA, the Americans with Disabilities Act in which using restraint and seclusion may result in unlawful discrimination against students with disabilities in violation of the federal laws.
So while Selene is correct that the case law has not been particularly favorable to students with disabilities at this point, there is this recognition by the Department of Education that there is a possibility to make the arguments of discrimination. Which I think those cases have not done to date.
Turning to some of the specific data regarding students with disabilities — and I know this is probably not the most interesting piece of our panel — but there are some really striking numbers. And I do want to talk some about the disproportionate way that students with disabilities and students of color are treated in terms of restraint and seclusion. 101,990 students were restrained at school or placed in seclusion according to the most recent data. 78% of those students were students with disabilities. 80% of those students subjected to restraint were served under the IDEA. When you look at the data, very, very few of those students who were restrained were students who were served under section 504. Almost all of them were students who have IEPs.
41% of the students subjected to mechanical restraint were students with disabilities. 77% of students subjected to seclusion were students served under the IDEA.
In terms of race and ethnicity, native Hawaiian or Pacific Islander students represented 0 .3% of students and 0.1% of students who were placed in seclusion. So they actually were underrepresented in terms of restraint and seclusion.
White students represented 48% of students but 52% of students who are physically restrained and 60% of students placed in seclusion.
American Indian or Alaskan native students were 1% of students and 1% of students who were restrained or placed in seclusion. Black or African American students represented 18% of the students served under the IDEA but 26% of the students and 22% of the students placed in seclusion so quite disproportionate. Asian students represented 3% of the students served under the IDEA but 1% restrained and 1% of students placed in seclusion.
Hispanic or Latino students of any race represented 27% of the students served under the IDEA. 14% of students restrained and 9% of students placed in seclusion.
Students of more than — two or more races represented 4% of the students served under the IDEA. 6% of students restrained and 7% of students placed in seclusion. So clearly students of color are overrepresented in terms of being restrained or being secluded. 66% of students with disabilities who are served under the IDEA are identified by the CRDC as male. And they represented 83% of the IDEA students who were placed in restraint in 82% of the students who were subjected to mechanical restraint and 48% of the students who were placed in seclusion.
So if you are a boy of color, if you are a boy of col we are a disability, your chances of being restrained or secluded are much higher than they are if you are not any one of those things. Those data are really born out in Maryland where, for instance, we have worked very hard over the last 20 years to get and then to refine and get additional state legislation. Most recently in 2017 when we added data collection requirements to our law.
So a word about data. Because the CRDC data are helpful but again, there is this time lag. What we have in Maryland are annual reporting requirements and there is a requirement that the data be reported to our legislature on a yearly basis. Very helpful to have the information. Can always question the accuracy of it. But to have anything — to have any data to work with is really helpful as we move forward with legislative initiatives, with litigation, having numbers or data are really helpful. As we move on if we have an opportunity for discussion, something we may want to talk about. Data is the first step in holding others accountable. And using the CRDC is a way of using that. I'm going to stop there and turn it over to Kelly or Jessie. Thank you.
KELLY ISRAEL: Let me get my camera on.
Okay. Thank you, everyone. I'm Kelly Israel, a policy analyst autistic self advocacy network. We come at it from a disability rights perspective. We have people who have gone through it themselves as children or are parents or family members of someone who's undergone these traumatic practices. We can also come at it from the people — as people with disabilities who were ourselves restrained since it is made up of like pretty much 100% autistic people ourselves at this point. Many of us were in special education as children and had to deal with the awful and — these awful and traumatic experiences. So that's a large part of my perspective. That's going to feed into what I have to talk about. The first thing I'm going to do is start off briefly going over a topic that Selene definitely reinforced in what she said. My colleagues understand.
I want to present to reinforce the issue. The real danger restraint and seclusion poses to anyone let alone vulnerable young children in public schools. So restraint and seclusion are inherently traumatic practices. I know this seems like a no-brainer but as we've already pointed out, the litigation landscape and what the courts have actually said is poor and rarely seems to take into account the immense trauma that restraint and seclusion poses for vulnerable children.
Most research articles that have examined the subject have found that pretty much whether you're in a psychiatric facility or in a school and whether you're restraining a kid or adult, restraining and secluding anyone have powerful negative psychological effects, especially traumatization and withdrawal, restraint and seclusion tends to re-traumatize them and bring back old trauma. And anxiety, nightmares, fear as well as symptoms mimicking post traumatic stress disorder.
Studies of school settings that do exist support the same claims. Congress put out a report in 2014 which stat stated that restraint and seclusion provided no therapeutic benefit and that they're dangerous. Advocates familiar with the issues have found that restraint and seclusion are not therapeutic nor do they actually decrease aggressive behavior in students. In fact, some students have become known to be more aggressive or disrupted after restraint and seclusion has been used.
There are countless anecdotal reports and large-scale reports sent to major news outlets and NPR that demonstrate that restrained and secluded students undergo severe student.
Restraint and seclusion can be outright physically dangerous as well. Some students physically panic or attempt various desperate means to communicate. Means that can lead to physical harm. Students are physically restrained in uncomfortable positions. They've gotten bloody noses, lacerations, bruises or otherwise been essentially assaulted by the very teachers and staff they're supposed to be learning from.
As you know, sometimes restraint and seclusion can even lead to outright death. Particularly from asphyxiation that commonly occurs during certain kinds of physical restraint. If a student is pressed face down into the ground or pulled back in certain positions, it can essentially make it impossible to breathe just like honestly what happened to George Floyd and many people who are restrained by cops. But this is happening to vulnerable children! The same thing.
So as my colleagues — what we can say is that the consensus is clear. That despite the fact that no one is holding them accountable for this, restraint and seclusion are dangerous. That doesn't mean that there aren't attempts to, as again my colleagues have stated, rid the world of restraint and seclusion. I wanted to go into a little bit more detail about the keeping all students safe act which is a bill that's been introduced probably in congress since 2010. The most recent one I think was introduced — close to being introduced this year. There may have been a bill last year. I know there was one in 2019 or 2018. And the keeping all students safe act would prohibit seclusion, mechanical restraints, chemical restraints and prevent any physical restraint that restricts breathing or is life threatening and any form of aversive behavioral interventions.
So it wouldn't completely prevent physical restraint but I think the ABA resolution, it would prevent physical restraint in any situation where there wasn't imminent harm to the student or another person. You also wouldn't be able to include it in the student's IEP which, as my colleagues have raised, is a major issue. You wouldn't be able to include restraint or seclusion in an IEP. You would have to have follow up meetings about any instance of restraint and seclusion. There would be grants in casa to implement alternatives to restraint and seclusion and help state educational agencies do so and there would be increased transparency around restraint and seclusion.
The school would have to file a report dis-aggregated by race, gender and disability stating how many students had been restrained and secluded physically and in what context. There would be greater oversight of the practice instead of this kind of weird hodgepodge legal mess of statutes and practices around how restraint and seclusion is reported in each state and school district.
So we are getting somewhere but nonetheless if we were to fully eliminate restraint and seclusion it raises many questions that are genuine in merit. What then, therefore, should teachers do when they encounter a student who is upset or miserable enough or engaging in behavior that causes a really significant disruption to the learning environment? Because restraint and seclusion should never be used.
But there must be a means of teaching students about proper behavior and self control in an academic context so that these incidents simply either never happen or they're redirected. These are important questions. We have to wrestle with them in order to truly ban the practice and luckily for us, over time, educators, disability rights and civil rights advocates, legislators, policymakers and even a few clinical professionals have developed tools to either entirely avoid or provide alternatives to the use of restraint and seclusion in schools. The tools will be the primary focus of my presentation. I wanted to start with the preamble to go over issues that I thought needed a longer touch.
One of the most well known practices that's received a lot of attention and has a fairly robust evidence base which is actually kind of rare in the restraint and seclusion space — you would be surprised at how frankly few research articles and analysis of practices of restraint and seclusion alternatives there are. The framework is known as PBIS. In the ideal situation, there isn't a need to directly provide one on one counseling and services to a troubled student because all students are served effectively by policies and procedures that support their academic progress in social, emotional and mental health in schools. And that's the foundation of what PBIS is supposed to do and how it works.
According to the keeping all students safe act, PBIS, schoolwide systemic approach to embed evidence based practices and data driven decision making to improve school climate and culture including a range of systemic and positive strategies that reinforce desired behaviors and diminish recurrence of — sorry about my camera. In order to achieve social outcomes and increase learning for all students. Including students with the most complex and intensive behavioral needs. So this means at least that congress envisions a system in which PBIS isn't one, single policy or practice.
A broader way of different services, policies and practices can be part of the PBIS framework. They're not meant to be used only on children with disabilities or disruptive children. They're a whole school framework intended for all students. Unlike restraint and seclusion, educators using PBIS typically do not view a children's misbehavior that must be punished but it is on the purpose of the behavior. PBIS solves problems by helping someone find an alternative to the classroom interrupting actions they're performing rather than simply punishing them for having those behaviors at all. Because there's countless reasons that a child with a disability may engage in the behavior that they're engaging in. So PBIS is trying to get at the root of those behaviors.
So the Department of Education put out a website, PBIS.org for those interested and want to do more research which describes the fundamental structure of the PBIS framework. It divides interventions and supports into a defined, specific system of tiers, each of which replies to a smaller group of students going down from the top. So PBIS is what's called a multi tiered system of support or MTSS.
Tier one starts at the schoolwide level. Tier two is the group level and tier three occurs at the individualized level. Tier one are practices that are applied to the entire school. Every student should receive the supports that are delivered and the whole school should be impacted by the administrative changes. Tier one establishes a school wide PBIS team that meets regularly and develops the interventions and supports given to students. Both this team and the school itself establish and identify and teach three to five easy to remember behavioral expectations to all students. Along with in the classroom, academic, social and classroom context expectations and supports were ever pertinent. This would include minor supports that, for example, a teacher could implement in the classroom such as routines, behavior corrections, breaks, et cetera.
The whole idea of tier one is if you ask any student in the school, they could tell what you the three to five behavioral expectations are and what they have to do to fulfill them. They're supposed to be very clear and obvious to everyone. Including and especially autistic students and other students with developmental disabilities who may take things more literally. Having clear expectations helps for these students. Really clear, straightforward.
Additionally, adverse behavior is clearly defined so students know what not to do. Students are rewarded for adhering to the expectations and not rewarded if they don't. Disability Rights Advocates, particularly autistic self advocates and others who have undergone these systems themselves have raised some significant concerns about token based or reward based systems. This can breed unhealthy competitions between students and ideas about behavior is something you need to do to get a reward which we feel doesn't really help reinforce positive behavior. It actually works — especially if students with disabilities are less likely to get the rewards in the first place. We have raised those issues but PBIS is still pretty much one of the best available interventions out there.
Tier two practices provide support for ten or more students who are not successful at managing their emotions or regulating their social actions with tier one support in place. They're continuously available, accessible within 72 hours of referral and implemented by all staff. This is one of the big differences between tier 2 supports and like putting the students themselves in tiers or special education. They're intended to be flexible and students choose to participate willingly. They might include social skills supports, helping students to determine the cause or an alternative behavior that disrupts classroom functions or impedes the student learning, increased reminders to the student about expectations and increased support from teachers.
Tier three supports are the only individualized tier. And they occur when tier one and tier two supports have consistently not worked and the student is still doing dangerous or really disruptive stuff. They have to be implemented by a team with specific training and expertise. They may include functional behavior assessments to determine why each student currently served by tier three is doing what they're doing and how to best ensure student safety. Prevent unwanted behavior and teach wanted behavior. It may include wraparound supports by coordinating between the student support network and the school and cultural context considerations for each student.
The framework is important but the actual interventions can vary a lot. PBIS is a good example of the kind of alternative support a school should provide students to prevent unwanted disruptions to learning — environment and provide student with clearer, positive expectations for the behavior and ways to fulfill them. What happens if a student is actively distressed in that moment? A student is crying and throwing things, the staff have to do something. That's when the best practice is to use conflict de escalation techniques.
Conflict de-escalation can be called crisis intervention. It can be called conflict resolution training. I tend to call it conflict de escalation because that sounds like what it does. This is a fairly diverse field where stakeholders have developed methods for talking down a temporarily upset or troubled person back to their emotional baseline and helping them re establish their place in the learning environment and help them calm down and feel safe. Because of the diversity, I can't give you one practice that's the be-all end-all best procedure. I can tell you about a couple of features that all de escalation techniques should have. One, it is trauma informed. It must take into account the very young people who have experienced one or more types of severe cycle psychological trauma. It has given them related characteristics such as possible post traumatic stress disorder, difficulty relating to others, strong emotions and difficulties relating and connecting to others.
Some students may experience psychosocial or emotional triggers which result in panic or meltdown when exposed to certain stimuli during which they possess little control over their actions. Honestly, trauma can exacerbate and be similar to a meltdown. Trauma informed de escalation takes the state into account and takes into account the student's experiences. It supports the student to slowly exit their traumatized state by showing real empathy, by speaking clearly, respectfully, simply and concisely and by having understandable expectations for the student.
When you're in a traumatized state, you need to focus on something concrete and straightforward. It is a little bit like a panic attack in that respect. The techniques can make a real difference.
Good conflict de escalation is culturally competent. Good techniques must take into account the student's life circumstances, ethnic and cultural background, first language, means of communication and yes, disability. I was on an earlier panel today that talked about the desperate need for training in disability cultural competency.
Disability groups have a culture all their own and many members share life experiences as well. A lot of autistic people have some very — I know this from personal experience — very specific trauma related to conflict de escalation and interventions. And they have trauma when these practices were used on them without consideration for their feelings or their thoughts. They were treated as if they were a collection of behaviors instead of a full functioning person. So in order to serve and autistic person who is being disruptive in the classroom setting, you have to take that kind of trauma into account. You have to avoid re-traumatizing them.
The third characteristic is submitted directly from experience. I strongly advise the potential practitioners take into account the disabilities and means of communication of a student. As well as their typical behavior when using any intervention, it is easy to misinterpret the behavior of a student with a disability as defiant when no such intention is even present.
Autistic meltdowns have complex sensory causes or complex causes in general that are not directly induced by anybody's actions but occur after some trigger. The teacher must avoid assuming the student's anxiety attack is about them or what they asked and should utilize — I'm coming. I'm sorry. I'm letting someone in. A good example of a typically and reasonably — is the verbal intervention training provided by the crisis prevention institute. They still leave restraint and seclusion as an option and train in that as well. Which, let's face it, we want to end restraint and seclusion for good.
Then there's direct intercession. Without the use of restraint and seclusion, when a student or another person is a direct, imminent threat to themselves or others.
Now, there are a few, at least, training programs or resources that allow educators or staff to prevent or withstand the threat without restraining the student. For a good example of this, I'm just going to use the one that's off the top of my head. There's Grafton training which uses physical blocking of shock absorbing objects in combination with the de escalation techniques that I just mentioned to avoid restraint and seclusion entirely.
So when a person is an imminent threat to himself or others, that doesn't mean that restraint and seclusion is necessary. If de escalation can be used to bring them back down to baseline and blocks can be used so that they can let out their aggressions safely, then there may be no need for physical restraint. Additionally, like I said, de escalation techniques should continue to be utilized even when a person and especially when a person is an imminent threat to themselves. It should never be against a child. That's why this group supports bills, resolutions and guidance that would greatly reduce restraint and seclusion nationwide. Thank you.
JESSIE WEBER: Hi. Thanks so much, Kelly. This is Jessie Weber. I'm an attorney at Brown, Goldstein & Levy. I'm involved in QT versus Fairfax county school board. This is a case challenging restraint and seclusion specifically against students with disabilities. And we're hoping that unlike the litany of terrible cases that didn't go well that Selene talked about, that our case will have a different outcome. So far we're on a good track.
I'm going to provide an overview about some of the underlying facts in our case and the student's stories and then I'll talk more about our legal claims, the court's order on the motion to dismiss the school board filed this summer. And kind of where we are now. And then we'll open things up for questions to any of us on the panel.
So this case involves the Fairfax county public school system. One of the wealthiest school systems in the country. Very highly regarded. But this school system, like I imagine many throughout the country, has been using restraint and seclusion heavily against certain students with disabilities. So our case is brought under a disability discrimination under title 2 and section 504, the Rehabilitation Act and we also have 1983 claims involving unlawful seizure and I'll talk about those claims in a little bit.
Our plaintiffs are six children through their parents. As well as three organizations. Two were represented on this panel. I think you saw Tawna as well. Communication first is one of those organizations. COPAA, the council of parent attorneys and advocates where Selene works. I'm going to talk about our children.
At the time the case was filed, the children ranged in age from 5 13. They have a mix of different disabilities. Several are autistic. Many have communication related disabilities. Some aren't able to speak. Some have emotional disabilities. So it is a range but they've all experienced restraint and seclusion. Some of our kids experienced it at young ages. We have one plaintiff who, when he was 5 years old, was restrained more than 200 times in a single year. Just 5. I just want to let that sink in. For my co-panelists, they've been doing this work for decades. But I'm newer to this work and stories like that are just shocking to me.
There is a child who was restrained and secluded at least 745 times between the ages of 5 to 12. Those are just the documented times. We know there are many more instances that were not documented by the school. This particular student spent two consecutive months in a seclusion room. So seclusion not being used as a misguided but a method of crisis intervention but where this kid got sent every single day.
This particular student, he was toilet trained before this began and while he was being secluded every day, he started soiling himself and the staff made him clean up his own urine in the seclusion room. So really grizzly details to these horrific stories.
Our clients were placed in seclusion rooms or in restraint not because of imminent risk of harm to themselves or others around them but for things like one instance, one of the children in our lawsuit threw headphones into a toilet. Another instance, a child was restrained for leaving class without permission.
Something we've seen in our cases, Fairfax County actually had a written policy during — when all of this was occurring, prohibiting the use of restraint and seclusion except in cases of imminent, serious physical harm but there were no steps taken to implement that policy and you can tell from these facts, restraint and seclusion were being used in far different ways as a way of managing behavior generally and punishing kids. I'll note that seclusion is called a lot of different things in the school system. Euphemisms like calm areas, reflection rooms, support rooms or placing a student into support. And we found these names are all different ways of calling seclusion different things but it is still seclusion. The child is alone. Unable to leave. The reason we see the euphemisms in use is because staff think that they don't need to document these instances as instances of seclusion which is what they are.
In one case, for example, there was like a box made of pads in a room and so the school said it is just a calm space. But the student was kind of contained in there, not free to leave. Can you imagine it was dark and scary. And that's seclusion when the student is not able to leave in a space like that.
As you can imagine, all of the children in our lawsuit have been deeply traumatized by these experiences of restraint and seclusion. All of them exhibit symptoms of PTSD. The students in our lawsuit since the pandemic hit and they've been learning remotely from home, they've been doing a lot better which was a big red flag for me as a parent myself, I don't know any kid who is doing better right now. It has been interesting, taken out of the context of these schools where these practices are rampant, the kids have been doing better at home, learning remotely.
I'll also note that the schools, as I think I mentioned briefly, aren't really consistently documenting or informing parents of when their kids are being placed into restraint and seclusion. In one example, one case, the parent didn't even know her child — there was a seclusion room in the school until she happened to be in the school building for another reason and heard her child shouting to be let out. You can imagine what that must feel like for your child to let them out when you happen to be visiting the school for another reason.
There's a lot more of these stories and I'm happy to forward the complaint which lists them out to anyone interested. But just to kind of keep moving, the case was filed in the eastern district of Virginia in October 2019. And again, we have claims under title 2, section 504. Restraint and seclusion is used much more frequently against children with disabilities than it is with other children. So just to give you a sense of the numbers, for the 2016 2017, they made up 14.5% of students and yet more than half of the instances of restraint and seclusion involves students with disabilities and we know that that's under-reported because there are several schools, specifically for students with disabilities or kind of the self contained centers within otherwise mainstream schools for students with disabilities that didn't even report their data.
So more than half — the 53% is an under-reported number.
Leslie talked a little bit about the Department of Ed.'s collection of data from schools about restraint and seclusion. And Fairfax county public schools reported zero instances of restraint and seclusion between 2013 and 2017. We know actually from documents that do exist within the school. That there was restraint and seclusion happening. We know that there was one child who was secluded at least 82 times during the 2013 school year based on the school system's own documents. The Fairfax county school system has reported that its reporting was wrong.
I think I mentioned in addition to that reporting honestly to the Department of Ed., the school system was not reporting honestly or timely to parents when their children were involved.
Some of what's been going on in the school system as I mentioned, they had a policy on the books but it has not been — limited use of restraint and seclusion to instances of serious bodily harm, imminent threats. But that wasn't followed. And there are reasons it wasn't followed.
Fairfax County school system did no training on the policy or on PBIS. They sort of adopted a positive behavioral approach program but there was no districtwide implementation or training. It was left to each school. I think how the school system spent its budget is telling as well. This is a wealthy school district. In 2019, they had a $2.9 billion budget. Of that $1.3 million went to this positive behavioral approach program. There were eight positions across the entire school district. Dedicated to this. And by comparison, nearly four times, $4.7 million went to these alternative learning centers which separates students with disabilities within otherwise mainstream schools. So they spent nearly four times the amount to segregate students with disabilities within public schools and then to actually implement a positive behavioral system.
As I mentioned, we have three organizational plaintiffs. They fit in both in terms of their mission being consistent with stopping the use of restraint and seclusion and upholding the dignity of students with disabilities. And they're also membership organizations and they do have members in the Fairfax County school system, some of whom are parents and they're important in this case because we're asking not just for relief in terms of the six individual students and we're seeking both damages for what they've been through but also injunctive relief. It is systemic. We need the whole school system to change its approach to how they're working with students with disabilities and how they're using restraint and seclusion.
So having the organizational plaintiffs, sense this is not a class action, gives us — strengthens their claim for that kind of systemic relief.
So with this case and we were met with a motion to dismiss and I would say one of the biggest issues that came up in the motion to dismiss was the issue of whether plaintiffs needed to exhaust their administrative remedies under the IDEA. We anticipated this coming up in the complaint. By we, I should mention my former colleague Gina Klein was instrumental in getting this case together and bringing it. I came in once she moved on. And we have a whole bunch of colleagues working on the case as well. So this is not a solo effort by any means.
But Gina and others anticipated that it would come up and our complaint included a section about why the relief we were seeking couldn't be obtained through the IDEA process. We're not seeking FAPE, free appropriate public education but we're seeking an end to discriminatory treatment on a systemic level as well as damages and those things you can't get through in a due process hearing.
In July 2020, the court ruled on the motion to dismiss. I have a link for parents. I'll drop it in the chat. Thank you for adding the complaint. I just added the decision to the chat.
We survived the motion to dismiss. It was a really strong ruling. Completely finding that our title 2 claims were valid and could stay in the case. Other claims were dismissed without prejudice with leave to amend which we ended up doing and I'll talk about that in a moment. The defendant didn't move to dismiss those claims again. So all of our claims are currently alive in the case. But I will go through things a little bit more.
So on the exhaustion issue, the court sided with us quite strongly and the court applied the 2017 decision and there were two questions under Frye that you have to ask to determine whether exhaustion is required. First is whether the plaintiff could have brought essentially the same claim. If the conduct had occurred at some public facility that wasn't a school. So the example is a public theatre or library. The second question is whether an adult could have brought the same kind of claim. So really, is this something unique to an educational setting and is it something unique to being a student? If both — the answers to both questions are yes, then you don't have to exhaust.
On the first question, the court held that had another public institution such as a publicly funded summer camp or an after-school program or library similarly restrain and secluded the plaintiffs in this case, we could have had the same exact claim under the ADA in 504. First question checked. That indicates not needing to exhaust.
Then for the second question, the court found if defendants who were restraining or employees with disabilities at the school, those individuals may also have claims for discrimination under the ADA or section 504. So the answer to that question was also a yes, find nothing exhaustion required. I'll read a quote. "Plaintiffs claim before this court state a stronger case for discrimination outside of a denial of FAPE as here plaintiffs describe the use of restraint and seclusion as tools of oppressive discrimination, not just as add equate tools of education." I think that's important. We frame the case not just — the kids aren't getting educational benefits or their IEPs are being applied with. We put this in a — this is discriminatory treatment. They tried to get an issue on exhaustion which the court denied as well. We should be good to go on this area.
The defendants argued that all of the plaintiffs lack standing because the request for injunctive relief was too broad. The court easily rejected that. It could tailor injunctive relief later. As for the organizational plaintiff standing, the court had some doubts but adopted the good ole one good plaintiff rule so since other plaintiffs had standing, all of the claims are the same. We had enough to survive. In our second complaint, we did beef up the sections detailing organizational standing to really make clear that they have members who are affected. That's on standing.
In terms of the substance of the claims, the defendant really tried to argue on the ADA in section 504 claims that we didn't have evidence that disability was really a motivating factor in the treatment of our students that really the school was trying to control behavior and just so happened these kids have disabilities. But the restraint and seclusion would have been used for anybody had they been behaving in the way our children were behaving.
The court rejected that for the ADA claim and held that we had alleged that restraint and seclusion is used more on students with disabilities than other students. And that they're excluded from general education as a result so they're denied benefits of education. The court held that that was enough to show disability discrimination under the ADA.
On Section 504, the court held the standard there was solely by reason of disability and that we hadn't met that because there were other reasons at play for use of restraint and seclusion like classroom management or protecting the safety of staff. We think the court got it wrong there but we amended a second amended complaint to make clear that even efforts for classroom management or control behavior relate back to disability because so often these children's — I'm going to quote unquote behavioral issues were manifestations of disability. Because so many of our children have been subjected to restraint and seclusion for so long, you see the very types of behavior that restraint and seclusion are meant to respond to or manage, actually got worse because of the use of restraint and seclusion because it is so traumatizing and students didn't feel safe in school or that they could trust the adults that they were put in the care of. Behavioral issues got worse.
So we — the way we explained it is you can't separate out the various cause. It really is all because of disability. Defendant didn't move to dismiss again. Our 504 claim is on the case. We got a section 1983 claim which the court initially dismissed without prejudice because it kind of interpreted our complaint as saying Fairfax County had this policy but individual employees were diverging from it. So what we made clear in our second amended complaint is no, it is not just a case of staff members not following policy. Just messing up.
This is because the school system has really had a policy and practice of failing to train staff and failing to implement its policy and making some real decisions. For example, lying about the numbers to the Department of Ed. that resulted in the widespread use of an appropriate use of restraint and seclusion throughout the district. That claim is in the second amended complaint and is alive.
I'll note that since we have voluntarily dismissed individual defendants because we don't need them with the school board and that's the current status of our case. We're about to embark on discovery. We have a mediation scheduled for mid April so we'll see what happens there.
Just as a takeaway, I would definitely review the district court's decision. It goes into a lot of detail about what our clients went through. And I think — I don't want to assume too much but I think that the courts really throw recitation — show that the court is also hopefully trouble and perhaps shocked by the use — rampant use of restraint and seclusion against our young students in this case. On one hand, it is awful to rehash these details. But I do think this is an example of where you can really practice some story telling in litigation in a way that hopefully moves the needle on the law and gets relief for your client but also helps bring to light horrific practices that I think a lot of people are learning about and hopefully in so doing, helps not just create positive, new outcomes but change public opinion about how we use restraint and seclusion and how traumatizing and inappropriate it is.
Stay tuned for more on our case and I think with that, we have a little less than 15 minutes for questions. So please feel free to unmute yourself, raise your hand or just appear or type your questions into the chat and I'm sure myself and all of the other panelists will be happy to answer them. Is there a difference between exclusion and suspension?
LESLIE SEID MARGOLIS: Seclusion is putting a child in space from which that child is not able to leave voluntarily. It could be a room or a closet or any space. And it doesn't necessarily need to be a locked door. It could be a door that's held closed. It can be a space with no door if there's a teacher or a staff person standing in the doorway and preventing that child from leaving. If that child is in the space alone and cannot leave voluntarily, that's seclusion. In-school suspension is usually the child being sent to the office or to an open classroom where there's a desk or someplace where they are removed from their class but they're expected to do work. They're just sitting often in the principal's office and there are staff there and they're not physically prevented from leaving the space. If they are physically prevented, it would be seclusion.
JESSIE WEBER: It looks like there is a hand raised. Feel free to unmute yourself and ask the question.
They have dorm activities and let's say the students aren't following the dorm rules more than once or twice or more than four times. So they're suspended. And they're put in a room and they have to stay in that one room all day and they can't go out. It is at the school. They're going to school all day but at night they can't do any dorm activities or talk with anybody. It is pretty much isolation. Is that considered restraint or is that seclusion?
JESSIE WEBER: I'm going to let somebody else on the panel. I think I missed the beginning of the question. I don't know if others got it.
Let me repeat the question. So is a student considered restrained or secluded when a student has to stay in their dorm room from the night's activities? There's no contact with other students. They can't be involved with activities or games. Just maybe going to dinner together. Is that considered restraint or seclusion? And also they have to stay in the school only, in a room by themselves.
SELENE ALMAZAN: This is Selene. To me, that sounds like exclusionary discipline rather than restraint or seclusion. But it seems — inappropriate to use that kind of discipline where you're isolated and separated from your peers. And Leslie's answered a question in here in the chat box. I don't know if that goes to Ellen's question but Leslie wrote time out or exclusion could be considered a suspension if time begins to accumulate and instruction time is lost.
LESLIE SEID MARGOLIS: I was responding to Ellen's question but it is applicable here as well. Students are entitled to participate in nonacademic and extracurricular activities so to the extent they're denied those opportunities, I would view that as disciplinary action as a suspension or as exclusionary discipline as Selene said. When we talk about restraint, we're really talking about physically holding people in a way that prevents them from moving. Either physically or with materials, with mechanical materials. I've had clients restrained with neck ties or with — with equipment like chairs that are meant for kids who can't sit independently and they're strapped in. So it is that inability to move physically as opposed to confining somebody to their room and saying you can't come to this activity.
Got it. Thank you so much. Thank you.
JESSIE WEBER: One question in the chat that someone wanted to pose anonymously. How do you overcome the attitudinal barrier that adults, including judges that misbehaving child may be difficult and that restraint is necessary to the safety of others? I can try to answer that since I have a case pending. I think some of it is comparing — first of all rounding out — trying to paint full pictures of who these children are. In our case, they're little kids. Some of them were 5 when they were repeated restrained and it is hard to imagine them being a huge threat and humanizing them about who they are and what they like to do.
The other piece of it is noting what's actually leading to the instances of restraint and seclusion as I mentioned in our case. A kid was secluded for throwing headphones in a toilet or leaving a classroom early. Those aren't examples of anybody being threatened or any life being endangered. Another example, the kid who was just put in a seclusion room every day. It wasn't because he did something, it was just where he was being placed.
So I think bringing to light that restraint and seclusion is actually being used might help overcome those preconceptions about how these kids might be dangerous. And also noting that to the extent children are displaying behaviors that are life threatening, often they're coming after four or five years of being routinely restrained and secluded so they're more reaction to the treatment than anything relating to any underlying disability or anything else.
And I think also really painting with detail what restraint and seclusion looks like in these cases. The student we have who soiled himself and had to clean it up, a young kid. I think showing the comparison between the grotesqueness of what restraint and seclusion looks like with these children versus the far less kind of shocking behaviors of these children hopefully helps overcome those stereotypes.
LESLIE SEID MARGOLIS: I think when we look at the disproportionately of students with disabilities, I think it goes beyond stereotypes to really get out the ingrained discrimination that societal discrimination against people with disabilities. Because you really wouldn't — and for the most part, we don't do this to people with disabilities. You can only do what is done to kids with disabilities — you can't do the things Jessie is talking about and that we've seen with the clients as you really view them as children. So I think it goes to the really ingrained institutionalized discrimination against people with disabilities. I think that's part of it.
Another part is I experienced this afternoon with my client, school staff said we have to protect her. Our teachers from bites and scratches. The response is bites and scratches aren't imminent, serious physical harm. They're not life threatening. They're not disfiguring. They're not extreme pain. They don't rise to that level that imminent physical harm is meant to address. So it's been way too easy for staff to just resort to restrain and seclusion as the go to way of intervening instead of looking to alternatives. And only when it becomes really, really difficult to use restraint or seclusion will those practices cease and only when there's really robust professional development, not just for people who are already in schools but in teacher preparation programs, staff preparation programs, I think will we see practices begin to change.
JESSIE WEBER: There is another hand raised.
Hi, again. I just wanted to clarify my question again. So I could get a full answer if that's okay. So can you or anyone on the panel explain what the difference is between distinguishing the difference between exclusionary discipline and seclusion. Can you explain that and tell me the difference or what distinguishes the difference?
JESSIE WEBER: I'm going to defer to my co-panelists again.
KELLY ISRAEL: Distinguishing something restraint and seclusion? Yes. Exclusionary discipline and seclusion. What's the difference between the two?
KELLY ISRAEL: Coming from personal experience — yeah, there's that. I suspect there is a degree of coercion in context. So if you're a 12 year old child, you can do very little to stop an adult from doing anything to you. Like you're in a position where you have neither societal nor physical power over any adult that you come up against. If an adult wants to stop you from leaving a room, there's literally no way you will be able to get out from under them. Often enough there are straight up kids that are secluded. They can't get out and they're scared and paranoid. So exclusionary discipline is anything that essentially forces a discipline on a student that removes them from the situation against their will. I suspect — I could be totally wrong, mind you.
It might be the case that there are some college students, especially college students with significant disabilities who are absolutely precluded from fighting back against the adults in their lives. This is probably true in high school as well. But I think part of it is simply the degree of powerlessness and to a certain extent, the context. I would say it is exclusionary discipline if my child self was like sobbing my brains out and they just demanded I leave the room and go into another room and that I couldn't be with the other students anymore. But if the teachers physically remove me from the room, put me in another room and made me write a three-page essay about what I did wrong, that's seclusion.
LESLIE SEID MARGOLIS: Let me try this. If Selene and I have a fight and our teacher says you need to stay in during recess and makes us stay in the classroom and everybody else in the class gets to go to recess. That's exclusionary discipline. We're prevented from going to recess but we're not secluded. We're in the classroom together. We're not locked in the classroom but we're being prevented from going to recess with our classmates.
If Selene and I get into a fight and I'm dragged down the hallway and locked into a room or the teacher is holding the door shut and I can't get out, that's seclusion.
KELLY ISRAEL: Yeah. Thank you. That's kind of what I was trying to get at. I appreciate it. Thank you very much for the clarification. Thank you.
JESSIE WEBER: It is after 5:30. I think our panel was supposed to end at 5:30. Thank you, everyone for attending and I'm sure my co-panelists and I would be happy to talk to folks offline by email or any other form, Zoom, carrier pigeon, whatever. Thank you all so much.