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.