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[IWS] CRS: The Use of Seclusion and Restraint in Public Schools: The Legal Issues [14 October 2010]

IWS Documented News Service
_______________________________
Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor----------------------
Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
________________________________________________________________________

 

Congressional Research Service (CRS)

 

The Use of Seclusion and Restraint in Public Schools: The Legal Issues

Nancy Lee Jones, Legislative Attorney

Jody Feder, Legislative Attorney

October 14, 2010

http://opencrs.com/document/R40522/2010-10-14/download/1013/

[full-text, 15 pages]

 

Summary

Seclusion and restraint have been used in various situations to deal with violent or noncompliant

behavior. Because of congressional interest in the use of seclusion and restraint in schools,

including passage of H.R. 4247 and the introduction of S. 2860, 111th Congress, first session, this

report focuses on the legal issues concerning the use of these techniques in schools, including

their application both to children covered by the Individuals with Disabilities Education Act

(IDEA) and to those not covered by IDEA.

 

Several reports have documented instances of deaths and injuries resulting from the use of

seclusion or restraints in schools but, until the Department of Education (ED) issued reporting

requirements in March 2010, there was no general reporting requirement. On May 19, 2009, in

conjunction with a hearing by the House Education and Labor Committee, the Government

Accountability Office (GAO) released a study examining the use of seclusion and restraint in the

education setting, finding hundreds of cases of alleged abuse and death due to the use of seclusion

and restraint. On July 31, 2009, the Secretary of Education sent letters to Chief State School

Officers noting the problems identified by the GAO report and in the May 19 congressional

hearing, encouraging each state to review its current policies, and stating that the Chief State

School Officers would be contacted by ED by August 15, 2009, to discuss relevant state laws,

regulations, policies, and guidance. The results of these discussions are posted on ED’s website.

 

Federal law does not contain general provisions relating to the use of seclusion and restraints, and

there are no specific federal laws concerning the use of seclusion and restraint in public schools.

The Individuals with Disabilities Education Act requires a free appropriate public education for

children with disabilities, and an argument could be made that some uses of seclusion and

restraint would violate this requirement. In addition, certain procedures may violate constitutional

rights or state laws. Although there are some judicial cases, they do not provide clear guidance on

when, if ever, seclusion and restraint may be used in schools. H.R. 4247, and S. 2860, 111th

Congress, first session, and S. 3895, 111th Congress, second session, would establish minimum

safety standards in schools to prevent and reduce the inappropriate use of restraint and seclusion.

H.R. 4247 was passed by the House on March 3, 2010.

 

Contents

Introduction ...............................................................................................................................1

Background ...............................................................................................................................1

Definitions .................................................................................................................................2

Constitutional Issues ...................................................................................................................4

Individuals with Disabilities Education Act .................................................................................5

Statutory Provisions ..............................................................................................................5

IDEA Judicial Decisions Involving Seclusion and Restraints .................................................7

State Laws and Policies...............................................................................................................9

Federal Legislation....................................................................................................................10

Contacts

Author Contact Information ......................................................................................................12



________________________________________________________________________

This information is provided to subscribers, friends, faculty, students and alumni of the School of Industrial & Labor Relations (ILR). It is a service of the Institute for Workplace Studies (IWS) in New York City. Stuart Basefsky is responsible for the selection of the contents which is intended to keep researchers, companies, workers, and governments aware of the latest information related to ILR disciplines as it becomes available for the purposes of research, understanding and debate. The content does not reflect the opinions or positions of Cornell University, the School of Industrial & Labor Relations, or that of Mr. Basefsky and should not be construed as such. The service is unique in that it provides the original source documentation, via links, behind the news and research of the day. Use of the information provided is unrestricted. However, it is requested that users acknowledge that the information was found via the IWS Documented News Service.

****************************************
Stuart Basefsky                   
Director, IWS News Bureau                
Institute for Workplace Studies 
Cornell/ILR School                        
16 E. 34th Street, 4th Floor             
New York, NY 10016                        
                                   
Telephone: (607) 255-2703                
Fax: (607) 255-9641                       
E-mail: smb6@cornell.edu                  
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