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 Abstract

Excerpted From: James Gallagher, Improving the Legal and Regulatory Framework of Restraint and Seclusion in D.C. Public Schools, 6 ALR Accord 257 (October 4, 2021) (222 Footnotes) (Full Document)

Tiffany, a seventeen-year-old student with an intellectual disability at a Washington, D.C. public school, suffered a head injury and experienced loss of consciousness, nausea, and vomiting after two staff members pulled her hair, ripped her jacket, and punched her in the face while administering restraint. Unfortunately, horrific stories like this have become more prevalent in the District of Columbia's (D.C.'s) public school system. Children attending public schools in D.C. are facing a severe epidemic--restraint and seclusion. More disturbingly, the Office of the State Superintendent of Education (OSSE), the State Education Agency (SEA) which has the responsibility to “raise the quality of education for all D.C. residents,” has not implemented overarching regulations regarding the use of restraint and seclusion on students or the tracking and reporting of restraint and seclusion. When a school restrains or secludes a student, it does not have to write an incident report recording the event, nor does it need to inform the student's parent or guardian about the restraint or seclusion. OSSE has the direct authority to regulate restraint and seclusion for students covered under the Individuals with Disabilities Education Act (IDEA). It is unclear if OSSE has the direct authority to regulate restraint and seclusion practices for general education students in public schools. OSSE lacks the authority to regulate restraint and seclusion for general education students in public charter schools. OSSE has not fully used its regulatory authority to protect students with disabilities covered under the IDEA. These regulatory gaps along with OSSE's inaction leave all students vulnerable to harm caused by improper restraint and seclusion. Moreover, Black students, students with disabilities, and the intersection of these groups are left extremely vulnerable to harm as they are disproportionately subjected to restraint and seclusion.

Restraint and seclusion is an emergency tool that school personnel should only use when a student is in a behavioral crisis endangering the student's safety and the safety of others in the school. The practice is necessary in these emergency circumstances to allow the student in crisis to calm down while keeping everyone else in the classroom safe. The rise of restraint and seclusion in schools stems from the passage of the Education for all Handicapped Children Act, later becoming the IDEA, which requires states to provide a free appropriate public education (FAPE) to students with disabilities as a condition to receive federal funds. As public schools began serving students with various disabilities, in particular students with severe behavioral problems, this led to schools implementing restraint and seclusion practices.

However, restraints and seclusions can lead to serious injury and even death if not conducted properly. Within the D.C. public school system, the use of restraint and seclusion is not limited solely to emergency circumstances, as schools have used seclusion in particular as a form of discipline and punishment. The lack of regulations allows for horrific abuse of restraint and seclusion practices in D.C. public schools. Disability Rights D.C. at University Legal Services (DRDC), the protection and advocacy agency for D.C., reported multiple incidents regarding the abuse of restraint and seclusion practices within D.C. public schools. DRDC found that a public charter school had a seclusion room that violated D.C. fire and building codes. Upon investigation, DRDC found that the seclusion room door did not have any internal door handles or emergency releases. This door prevented the student inside the seclusion room from exiting, even in an emergency, unless someone opened the door from the outside. This is just one example found by DRDC, and local journalists have also covered the use of abusive restraint and seclusion practices within D.C.

D.C.'s restraint and seclusion data shows that Black students and students with disabilities are unjustifiably subjected to restraint and seclusion practices without any regulations in place preventing their use as a last resort. During the 2017-2018 school year, 133 out of the 236 reported physical restraint incidents--approximately 56.4%--involved students served under the IDEA. Additionally, D.C. schools conducted 224 out of 236 reported physical restraints on Black students, approximately 94.9% of all restraints. For comparison, during the 2017-2018 school year, Black students made up 60% of all students in D.C. public schools and 75% of all students in public charter schools. Most disturbingly, nearly all restraint and seclusion incidents reported within D.C. were performed on Black students, as there were only seven incidents of restraint or seclusion performed on white students, out of a total of 404 reported incidents. These statistics show that Black students and students with disabilities in D.C. are at a much higher risk of being subjected to restraint and seclusion practices when compared to other demographics.

Moreover, these statistics follow nationwide restraint and seclusion trends regarding restraint and seclusion when analyzed by race. During the 2015-2016 school year, schools physically or mechanically restrained 87,000 students nationwide and secluded 37,500. Schools disproportionately restrained Black students and students with disabilities relative to their proportion of the total student population. While Black students accounted for only 15% of all students, they represented 27% of all students restrained and 23% of all students secluded. Additionally, while students with disabilities accounted for 14% of total students, they represented 71% of students restrained and 66% of students secluded. Similar to trends in D.C., nationwide trends illustrate that Black students and students with disabilities are continuously restrained and secluded at much higher rates, putting them at increased risk for harm.

Currently, D.C. is failing to meet its responsibility to “rais[e] the quality of education for all DC residents,” by allowing the overuse of restraint and seclusion on all students--with the practices being potentially dangerous if not implemented correctly. Part I of this Comment examines the legal and regulatory framework surrounding restraint and seclusion. Part II analyzes these regulations and their failure to address the overuse of restraint and seclusion on children in D.C.'s public schools. Part III recommends a three-pronged approach to address the overuse of restraint and seclusion among all children within D.C. public schools and public charter schools. First, the D.C. Council must expand and clarify OSSE's authority to regulate restraint and seclusion in all public schools and public charter schools. Second, OSSE needs to promulgate a comprehensive rule limiting the use of restraint and seclusion among all students, and to create regulations that are race-conscious to limit the disproportionate use of restraint and seclusion on Black students. Third, the D.C. Council should expand due process protections for students with disabilities by allowing disputes regarding restraint and seclusion to operate under an expedited due process timeline if the parties request.

[. . .]

The lack of regulations regarding restraint and seclusion on D.C. public school students and its impact are well-documented. In particular, statistics show that the lack of regulations harm Black students and students with disabilities due to the overuse of these practices among these populations. While there currently are regulations and laws in place regulating restraint and seclusion for other students with disabilities in non-public special education schools, OSSE should take steps to regulate restraint and seclusion for all students to better fulfill its purpose of “raising the quality of education for all DC residents.”

The best way to address the epidemic of restraint and seclusion is a three-step process. First, the D.C. Council should pass legislation that affirmatively grants OSSE the authority to regulate restraint and seclusion in both DCPS and D.C. public charter schools. This will ensure that any regulations promulgated have the proper authority and cannot be disputed.

Second, once this is completed, OSSE should promulgate rules regulating restraint and seclusion for all public school students. This will ensure the protection of all D.C. students from the overuse of restraint and seclusion, and in particular, will provide a level of protection for Black students who currently are subjected to restraint and seclusion at higher levels compared to other races. Moreover, this comprehensive proposed rule would bring D.C. in line with the fifteen principles guidance proffered by the DOE.

Additionally, for the most vulnerable students with disabilities who are covered under the IDEA, their due process rights should be expanded to protect against restraint and seclusion. The D.C. Council should expand the expedited due process timeline to disputes regarding restraint and seclusion, which will notably decrease the time where continued--and potentially harmful-- restraints and seclusions may occur. By taking these steps, D.C. can make a real change in protecting the rights and improving education outcomes of all of its public school students.

J.D. Candidate, American University Washington College of Law (2022); B.A., History, Siena College (2017).

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