Written By: Owen DeFao, Student Policy Associate
Traditionally, the federal government has a limited role in education, as state laws typically govern the rights of students and educators within their specific state under the 10th Amendment. However, when restraint and seclusion laws are used disproportionately against students with disabilities and endanger their legal right to a free and appropriate public education, federal policy is needed to ensure these rights are upheld.
The United States Government Accountability Offices defines restraint as “restricting a student’s ability to freely move their torso, arms, legs, or head freely.”1 Seclusion is “confining a student alone in an area they may not leave.” Despite the significant danger to a student’s physical and mental health, no federal laws prevent or limit the use of restraint and seclusion. However, due to the effects of restraint and seclusion against students with disabilities, their use is at risk of violating the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.
While only about 13% of students enrolled are served under the IDEA, around 80% of restraint use was used against students with disabilities, raising the issue of discriminatory behavior by schools and educators. Under Section 504, school districts must provide students with disabilities a free appropriate public education (FAPE), ensuring they have the resources needed to thrive alongside their peers without disabilities in the school environment. The United States Department of Education highlights schools’ responsibilities under FAPE as “school districts must evaluate any student who needs, or whom the district has reason to believe needs, special education or related services because of a disability.” To meet their right to FAPE, students may receive an Individualized Education Program (IEP) and/or a 504 plan outlining services and accommodations.
The Department of Education has asserted the use of restraint and seclusion is at risk of jeopardizing a student’s FAPE in multiple ways, including through repeated use. If a student’s behaviors are severe enough to interfere with their individual educational needs but remain unaddressed by school personnel, the student’s Free and Appropriate Public Education may be violated. Being restrained or secluded for an extended period or in multiple instances can violate the student’s needs based on the evaluation of that student prior. A Free and Appropriate Public Education is outlined under Section 504, “[o]ne way to ensure that programs meet individual needs is through the development of an individualized education program (IEP) for each student with a disability. IEPs are required for students participating in the special education programs of recipients of funding under the IDEA.”4 When a student is restrained or secluded, that student is not receiving the educational instruction or services required of the school according to the student’s specific IEP.
Moreover, restraint and seclusion may also have a traumatic impact on students, even if the restraint or seclusion is not repeated. Restraint especially overtakes a student’s bodily autonomy and may lead to problems sleeping, learning, and building relationships. Each student experiences trauma differently, but this trauma could lead a student to exhibit behavioral issues, trouble concentrating in class, frequent absences, or distrust in authority figures,5 Restraint and seclusion are especially dangerous when students do not understand the reason why they are restrained. Moreover, the Department of Education has clearly stated that neither restraint nor seclusion provides any educational or therapeutic benefit to a child.
The Department of Education requires public school districts to report the use of restraint and seclusion biannually; however, these reports are often far from accurate due to misreporting by the school districts. According to the United States Government Accountability Office, “70% of school districts reported 0 instances of restraint and seclusion.”6 However, the CRDC online tool, where school districts are expected to input their data, finds many of these reports as errors. “In part, the error message states that, ‘based on trends in past data, at least one instance of restraint or seclusion occurs within a population greater than 100,000 students.’ The online tool then prompts the district to correct the error.”7
These error terms, or ‘false zeros,’ are often due to missing data, but instead of submitting blank data, as the CRDC advises, zeros are reported. These false zeros are counted as the school district reporting zero instances of restraint or seclusion instead of being blank, where it would not affect the other data. Accurate data is essential for preventing the violation of IDEA and Section 504 for discriminatory behavior. Even with this underreported data, students served under IDEA are the victims of 80% of restraint and seclusion. Accurate data would only illuminate this issue further, showing more instances of school districts being unable to uphold students’ FAPE.
No Kids in Cuffs supports the GAO’s recommendations to improve data collection and reporting, translating their guidance to law. Legally requiring publicly accessible restraint reports every two years will increase accountability as the reports are accessible to all individuals, parents, and legislators alike. The law will also require more accurate reporting by mandating the students’ age, gender, disability status, and injuries resulting from restraint and seclusion are further included. Corrective federal policy is warranted and needed for reporting restraint and seclusion because of the violation of students’ federal rights under IDEA and Section 504, the effects of trauma it may cause students, and the mass underreporting by school districts.
1 GAO definition of Restraint and Seclusion
2 CRDC Civil Rights Data Collection: The Use of Restraint and Seclusion
3 U.S. Department of Education Fact Sheet: Restraint and Seclusion of Students with Disabilities
5 Newman, Zack. “Denver Public Schools outlines student handcuff policies.” 9News. 1 May 2019.
6 U.S. Government Accountability Office: Education Needs to Address Significant Quality Issues with its Restraint and Seclusion Data
U.S. Department of Education: IDEA