by Carley Clemons
In 2013, the US Department of Education found that Stuart, a nine-year old boy with autism attending a Bay Area nonpublic school, was restrained 92 times over the course of a year–with restraints averaging 29 minutes in duration–for reasons that did not constitute any semblance of emergency or immediate danger. Reasons cited by staff included cursing, hiding under a desk, “too much silly,” and “frustration regarding a game of Uno.” In an interview Stuart stated, “they held me down a lot like even when I did small things…every time it happened it seemed like it was longer and longer.” Stuart’s mother withdrew him from the nonpublic school after hearing his screams from the parking lot. Oakland Unified, Stuart’s home district, was found to be in violation of federal education and disability law for sending Stuart to a placement where he was regularly subjected to unwarranted and excessive use of physical force.
The nonpublic school defended the regular use of restraints, claiming that staff adhere to a strict protocol and that the method is fully legal. As of the 2019-2020 academic year, this school is operational with a “conditional” certification status (indicating that a component of the recertification process was not adequately met). Of the 305 NPS in California, 65 (21.3%) are currently “conditional” in certification.
Each year, thousands of students with disabilities are subjected to unwarranted physical force by insufficiently trained employees in nonpublic school settings. California education law allows nonpublic schools to set their own training mandates. There is no state level standardization of training, and no stipulation of training requirements for nonpublic school employees in regards to crisis de-escalation or emergency behavioral intervention. The law simply states that use of physical restraint can be dangerous and should be reserved for emergency situations. This lack of legislative precision is conducive to a potentially dangerous state of affairs in which undertrained school staff subjectively decide when to use physical force against students with disabilities.
Use of Restraint in California Nonpublic Schools
In the state of California, thousands of students receiving special education services do so in segregated school settings where they are more likely to be subjected to physical restraint by school employees. “Nonpublic schools” are publicly funded, but privately operated, special education school settings which exist to serve students with disabilities whom school districts assert they are unable to serve appropriately.
Placement in nonpublic schools is meant to be an option of last resort. Segregating students with disabilities from typical peers is a deviation from the emphasis on inclusion and least restrictive environment (LRE) in the Individuals with Disabilities Education Act (IDEA). In accordance with existing legislation, this type of placement can only be made following thorough documentation of interventions and supports attempted with the objective of maintaining a student in the public school context. In California, 22,539 of the 794,604 students receiving special education services are placed among the state’s 305 nonpublic schools.
Physical restraint of students is intended as an emergency behavioral intervention option reserved for imminently dangerous circumstances when no other course of action is possible. However, students with disabilities in nonpublic schools are regularly subjected to unjustified physical restraints by school staff. During the 2010-2011 school year there were over 24,289 Behavioral Emergency Reports (BERs) filed with the California Department of Education (CDE) documenting instances of students being subjected to emergency behavior interventions, such as physical restraint. Approximately 70% (16,551) of these reports came from nonpublic school settings.
The disproportionately high number of these reports coming from the nonpublic context could be attributed to the fact that most students served in these settings have intensive behavioral support needs. It is notable, however, that these “emergency” interventions are meant to be reserved for instances when an unpredictable behavior (i.e. one which a student has not previously been observed to engage in) cannot be addressed with the established behavioral intervention plan. The placement of a student in a segregated educational placement would be preceded by a thoroughly documented pattern of attempted interventions and known targeted behaviors for that student, to inform an established plan for behavioral intervention. It is concerning that 70% of all reported incidents of emergency behavioral interventions came out of a context in which less than 3% of students receiving special education are served.
Of all BERs filed in 2010-2011, 78% involved a physical restraint, and in 5% of these, no cause for a restraint was identified in the narrative. This indicates that in one year there were approximately 18,945 instances of students with disabilities being subjected to “emergency” use of physical force, and in almost 1,000 of these cases no rationale to justify the use of force was provided. These numbers suggest a status quo in which students with disabilities are arbitrarily subjected to unwarranted use of force with disturbing regularity.
Current Status of Reform
In January 2019, the state passed AB2657 clarifying that the use of physical force as a behavioral intervention in schools is “safety measure of last resort” which can result in “serious injury or long lasting trauma and death, even when done correctly.” The law asserts that such interventions should only be used for students with “exceptional needs, in limited circumstances” to address “clear and present danger of serious physical harm” and acknowledges “no evidence that restraint… is effective in reducing the problem behaviors that frequently precipitate the use of these techniques.” There is no specification or standardization (beyond reference to subjective concepts like imminent danger) of how staff should determine whether a situation is an emergency, whether a restraint is warranted, or how to mitigate danger while conducting an unavoidable physical restraint. AB2657 only specifies reasonably self-evident assertions that students have “a right to be free from the use of…behavioral restraints of any form imposed as a means of coercion, discipline, convenience, or retaliation by staff” and that staff may not utilize techniques that “obstruct a pupil’s respiratory airway or impairs the pupil’s breathing.”
In October of 2019, Governor Newsom signed AB1172 adding new requirements for nonpublic schools to go into effect at the start of the 2020-2021 school year. The legislation allows the California Department of Education to immediately suspend or revoke a nonpublic school’s certification if a student’s safety is found to be compromised in the course of an investigation. The bill also requires nonpublic schools to provide documentation verifying that staff have received training on “use of evidence-based practices and interventions specific to the unique behavioral needs” of students and highlights training on “interventions for reducing and replacing challenging behaviors, including de-escalation techniques.” Again, there is no standardization of what the training provided by nonpublic schools to their staff must encompass, nor is there specific language regarding training on use of emergency behavioral interventions such as restraints.
Improving the Reform
To reduce the unwarranted use of physical restraint on students with disabilities, specifically in nonpublic school settings, the state of California should adopt unambiguous legislation to explicitly establish precise criteria for nonpublic school staff to ascertain whether a situation constitutes a behavioral emergency. The objective would be to eliminate the present subjectivity in use of behavioral interventions. This would lead to a state of affairs in which physical restraint of students (and use of other forms of emergency behavioral intervention) is a last resort, limited to indisputably emergency situations. This objective could also be upheld by the implementation of standardized, monitored training of staff in nonpublic schools, although the costs of enacting state-wide standardizing training would be high. Establishing an unambiguous legislative framework first would likely support optimal outcomes for eventual implementation of comprehensive, standardized training.
Carley Clemons is a first-year MPP student at the UC Berkeley Goldman School of Public Policy.
The views expressed in this article do not necessarily represent those of the Berkeley Public Policy Journal, the Goldman School of Public Policy, or UC Berkeley.
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