Safety and child welfare are of the utmost priority in any school district. While all students deserve a learning environment free from abuse, students with disabilities are particularly vulnerable to behavior management methods, such as seclusion and restraint, that have the potential for misuse.
In November 2019, ProPublica Illinois in collaboration with the Chicago Tribune published an emotional report about the use of seclusion in Illinois schools. Through FOIA requests for incident reports and interviews with families, ProPublica put together a damning story of students locked in spartan rooms for hours at a time, ignored, abused. Public response to the report called for reforms, and school administrators scrambled to put together rules that fit in with the very complicated puzzle of behavior management.
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The use of these management methods may have their place, especially to mitigate physical harm. However, school personnel need appropriate training, guidance, and oversight supported by effective policy to eliminate the potential for overuse and abuse of physical restraint and isolated time out. School leadership must develop district policies that comply with the law, heed advice of experts in the field, and consider stakeholder input, while ensuring student and staff safety, given legitimate concerns of countering aggressive behavior. At stake is the student’s physical well-being, emotional health, and access to a federally-mandated free appropriate public education.
Restraint and Seclusion Defined
In order to understand both the concern and rationale for restraint and seclusion, it is important to define both terms. Seclusion, as per the U.S Department of Education, Office for Civil Rights, is defined as “[t]he involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving” while restraint is “a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely” (U.S. Department of Education, 2010).
Following the ProPublica report, the Illinois State Board of Education (ISBE) created emergency rules for time out and physical restraint. These were replaced throughout the winter and spring when ISBE adopted proposed rules that became Administrative Code in April 2020. In place of ‘seclusion,’ ISBE uses the terms ‘time out’ and ‘isolated time out,’ both to be used when the student is, “exhibiting behavior that poses an imminent danger of serious physical harm to self or others.” The difference between these two words is that isolated time out is when a student is without a monitoring adult, and should be used under very limited circumstances, such as the behavior of the student posing an immediate danger to an adult who would typically be supervising. A physical restraint is “holding a student or otherwise restricting the student’s movements” and must be a planned technique or hold that does not impair the student’s ability to breathe, communicate, and speak, and otherwise does not block the student’s airway.
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Other distinctions ISBE makes is that time out (isolated or otherwise) is not a break included within a student’s Individualized Education Plan (IEP), a brief removal of the student to the hallway, a disciplinary measure such as an in-school suspension or detention, or a sensory break that either the student or the teacher initiates/requests. Physical restraints are not mechanical restraints used to position a student with physical needs (such as a student who is physically unable to keep themselves upright in a wheelchair) or something such as a blocking pad used to safeguard a student. Physical restraint also does not include momentary physical escorting, such as to hold a student’s arm or shoulder to guide the student to a location, or to prevent a student from completing an action that would bring harm to the student or to others.
In Defense of Restraint and Seclusion
Proponents of restraint and seclusion argue that both can play a role in behavior management, especially in instances where the student’s significant developmental and emotional disabilities may result in aggressive or violent self-harm or harm to others. Teachers and paraprofessionals simply must react when the health and safety of their students and each other are at risk.
Missing from the ProPublica report were the voices of teachers charged with this impossible task. A December 2019 NPRIllinois article describes the emotional, physical, and mental toll school employees feel when asked to perform a restraint or seclusion method on students. Staff recognize that these methods are meant to be used as a last resort and make clear that de-escalation techniques are key in reducing the potential for student and staff harm.
Indeed, the ISBE rules even recognize that such events simply have to occur, stipulating that “isolated time out, time out, and physical restraint shall be used only when the student’s behavior presents an imminent danger of serious physical harm to the student or others and other less restrictive and intrusive measures have been tried and proven ineffective in stopping the imminent danger of serious physical harm.” Another very crucial voice in this process are the voices of parents who may even advocate for the use of these tools, as they know their child best and what would and would not work for them.
Consequences of Restraint and Seclusion
While there are some limited circumstances in which restraints and seclusion may be used, these techniques are not without consequence. A 2009 report from the National Disability Rights Network collected the findings of governmental, non-profit, and private sector studies on the effects of restraints and seclusion on patients (as some entities were healthcare-based) and students. Common findings included physical injury which children are at a greater risk of than adults, most likely because of their size relative to their restrainer; re-traumatization in those with a history of trauma or abuse; psychological and emotional harm; a loss of dignity; and in some instances, death.
Powerfully, one study quoted adverse effects including “recurrent nightmares, intrusive thoughts, avoidance behaviors, enhanced startle response, and mistrust of mental health professionals resulting from the incidents, even years after the event. Restraint or seclusion may evoke feelings of guilt, humiliation, embarrassment, hopelessness, powerlessness, fear, and panic. Restraint or seclusion compromise an individual’s ability to trust and engage with others, and create a violent and coercive environment that undermines forming trusting relationships and, by extension to the education setting, learning.”
Uncovering the Freqency and Disparity of Restraint and Seclusion
Among other issues with restraints and seclusion in school, as ProPublica brought to light, is the sheer lack of information from schools about the frequency of and the rationale behind the utilization of such methods. In order to provide any sort of effective guidance to school districts, the Department of Education first needs an understanding of the current use of restraint and seclusion in schools, provided through accurate reporting data.
In January 2019, the U.S. Department of Education announced an initiative to investigate the potential for abuse in the use of restraint and seclusion in schools. The Office for Civil Rights and the Office of Special Education and Rehabilitation Services were tasked to oversee the initiative and to provide technical assistance and support to schools, districts, and state education agencies to shore up enforcement of federal regulations.
Data collected during the 2015-2016 school year indicated that 71% of children restrained and 66% of children secluded are students with disabilities, while students with disabilities comprise only 12% of the total student population. However, the Government Accountability Office (GAO) found that 70% of schools reported zero incidents, when there in fact had been incidents or when the districts had no data available at all.
Under-reporting concerns prompted the U.S. Department of Education’s implementation of the initiative but mid-year, data collection problems plagued the agency’s ability to develop guidelines and other tools. The GAO’s report called on the Department of Education to take immediate action to address inaccuracies in restraint and seclusion data. Problems with the current reporting system may stem from the nature of self-reporting and the lack of consequences to districts for failing to report data or reporting inaccurate data.
Fairfax County Public Schools (Virginia) with a population of 187,000 students, reported zero incidents of restraint and seclusion, but one parent alone received 437 letters over three years from the student’s school notifying her that restraint or seclusion occurred. An investigation into the school district found internal documents illustrating hundreds of cases of seclusion and restriction that had occurred, while none were reported to the Department of Education.
This begs the questions: What is being hidden? Where is it being hidden? Why is it being hidden? What are the consequences of this moving forward?
As the GAO reports, “A fundamental first step toward improving the quality of the restraint and seclusion data is to assure that when school districts report zero incidents it truly means there were no incidents, and to accurately distinguish districts with no incidents from districts that do not track or collect the data” (Nowicki, 2019). While that acknowledges the issue, the GAO report may have attempted to pass the buck on actual enforcement of mandatory reporting, keeping consequences in limbo.
Moving Forward with New Tools
The question then remains, what can be done next? The new ISBE mandates require staff to undergo training each year for a minimum of eight hours in the following areas:
A) crisis de-escalation; B) restorative practices; C) identifying signs of distress during physical restraint and time out; D) trauma-informed practices; and E) behavior management practices.
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This helps provide the tools for educators to determine the function of a student’s behavior- why a student is demonstrating the behavior. Knowing the function of the behavior allows staff to address the causes or triggers of that behavior in order to prevent the dysfunction, which is especially important when the student may not be able to express what is causing the behavior. With that in mind, the issue turns to triggers, instead of the student. Teachers and staff become proactive, instead of reactive. Instead of use as punishments, restraints and seclusion can be used if and only if it is a last resort.
School districts undoubtedly strive to avoid situations that require the use of restraint and seclusion techniques. It is crucial that staff are prepared to respond in the rare circumstances that may require this level of intervention. Preparation includes comprehensive training of positive behavior intervention strategies, training of crisis de-escalation techniques, understanding the function of behavior, and ensuring staff knowledge of student behavior intervention plans. Schools must be safe learning environments where students and staff are free from harm, and schools must be proactive to ensure procedures are in place to maintain safety.
Jennifer Sabourin is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.
