Monday, November 29, 2010
Tweet[IWS] CRS: The Use of Seclusion and Restraint in Public Schools: The Legal Issues [14 October 2010]
IWS Documented News Service
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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
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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
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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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