January 2, 2016

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New Seclusion and Restraint Guidance

In what appears to be a final curtsy to the disability rights community they have been eager to please, last week the Obama Administration released guidance for district leaders on the use of seclusion and restraint in schools. This guidance informs school districts of how the use of restraint and seclusion may result in discrimination against students with disabilities thereby violating Section 504 and Title II of the ADA.

Specifically, ED states a school district discriminates on the basis of disability in its use of restraint or seclusion by (1) unnecessarily treating students with disabilities differently from students without disabilities; (2) implementing policies, practices, procedures, or criteria that have an effect of discriminating against students on the basis of disability or defeating or substantially impairing accomplishment of the objectives of the school district’s program or activity with respect to students with disabilities; or (3) denying the right to a free appropriate public education (FAPE).

Of note, the guidance assumes that a school’s use of restraint or seclusion for a student with a disability could be evidence that the student’s current array of regular or special education and related aids and services is not addressing the student’s needs. Moreover, the guidance states that a school’s use of restraint or seclusion may have a traumatic impact on a student, such that even if she were never again restrained or secluded, she might nevertheless have new academic or behavioral difficulties that, if not addressed promptly, could constitute a denial of FAPE. That traumatizing effect could manifest itself in new behaviors, impaired concentration or attention in class, or increased absences, any of which could, if sufficiently severe and unaddressed, result in a denial of FAPE for that student.

 You can read the guidance and a series of questions and answers on the guidance and seclusion/restraint here.