Feds Offer Guidelines on the Use of Restraints and Seclusion

Nearly three years after U.S. Secretary of Education Arne Duncan first sent states letters asking them to review policies and guidelines on the use of restraint and seclusion in schools, the Education Department has issued its own nonbinding guidance on the practices.

Restraint and seclusion are intended to be used in emergency situations, when students are in danger of hurting themselves or others. But several reports, including one by the U.S. Government Accountability Office have found that the practices are being used inappropriately and incorrectly, leading to injuries, or even the deaths, of students.

“There is a difference between a brief time out in the corner of a classroom to help a child calm down and locking a child in an isolated room for hours. This really comes down to common sense,” Duncan said in a statement.

The Education Department said its long-awaited 15 principles about restraints and seclusion should be used as the foundation of policies and procedures created by states and districts, but it isn’t binding or required. The principles were a collaborative effort between the Department and the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services.

“These principles stress that every effort should be made to prevent the need for the use of restraint and seclusion and that any behavioral intervention must be consistent with the child’s rights to be treated with dignity and to be free from abuse,” Duncan wrote in a letter at the beginning of the 40-page document. “The principles make clear that restraint or seclusion should never be used except in situations where a child’s behavior poses imminent danger of serious physical harm to self or others, and restraint and seclusion should be avoided to the greatest extent possible without endangering the safety of students and staff.”

Among the principles:

  • Preventing the need for restraining or isolating students should be a priority.
  • Mechanical restraints should never be used to restrict a student’s movement, and schools shouldn’t use drugs or medication to control a student’s behavior unless these have been prescribed by a doctor or other health professional.
  • Students shouldn’t be physically held down or restrained except when they are in imminent danger of hurting themselves or someone else.
  • Policies restricting restraint and seclusion of students should apply to all students, not only kids with disabilities.
  • Isolating or restraining students should never be used as a form of punishment or discipline, coercion, retaliation, or as a convenience.
  • Restraining or seclusion of a child should not involve restricting his or her breathing or anything else that harms the student.
  • Multiple uses of restraint or seclusion of the same student should trigger a review and if necessary, a revision of the strategies in place to address dangerous behavior; and,
  • Teachers and other staff should be trained regularly about appropriate use of effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports, and safe use of restraint and isolation.

The Education Department also suggests informing parents about policies on restraint and seclusion at their children’s schools, when the practices are used, and all incidents should be documented.

The “I ♥ Boobies!” Bracelet Case to Be Heard En Banc

Last year, in B.H. v. Easton Area School District, a Pennsylvania court reviewed the question of “whether the ban of the ‘I ♥ Boobies! (Keep A Breast)’ bracelets constitutes an objectively reasonable exercise of a public school’s authority to ban lewd or vulgar speech.”  The Court concluded that it did not. See B. H. v. Easton Area Sch. Dist., 827 F. Supp.2d 392, 405 (E.D. Pa. 2011). The justification for the ban asserted by the school district was that the word “boobies” is vulgar and therefore meets the Supreme Court’s standard in Fraser. See Bethel Sch. Dist. No. 43 v. Fraser, 478 U.S. 675 (1986).  In its analysis, the Court concluded that, “the phrase ‘I ♥ Boobies!’ in the context of [the] bracelets cannot reasonably be deemed to be vulgar.”See id. at 405.   Having concluded that the bracelets could not be banned under Fraser, the Court considered whether the speech was “proscribable under the Tinker ‘substantial disruption’ analysis.” See id. at *407-408. Because “there were no incidents presented to the Court of any disruption prior to the School’s bracelet ban,” the Court found no evidence of “any incidents that caused the type of disruption required by Tinker,” and, therefore, concluded that the plaintiffs demonstrated a reasonable likelihood of success on the merits that the School District violated their First Amendment rights. See id. at 408-409.   

On April 17, 2012, on appeal by the school district, a Philadelphia federal appeals court (three-judge panel) heard oral arguments, in which the school argued that the bracelets were “lewd.” According to the school district, there were boys who made inappropriate and offensive comments to girls after seeing the bracelets, such as “I like your boobies.” Another argument against the protection of the speech argued by the school district was that such speech could easily open the door to similar, but more vulgar and offensive, slogans for like causes, such as testicular cancer. 

On August 14, 2012, an order was made by the Court, sua sponte, which brushed aside the three-judge panel’s draft opinion and set up a rehearing of the case en banc (before the full 14-judge court). As expected, this has proven to be an important case because, as you may recall from earlier this year, in Braun v. Sauk Prairie School District, the Court reviewed a motion for a preliminary injunction to prevent a school district from prohibiting middle school students from wearing bracelets and other clothing, which also contained the statement,  “I ♥ Boobies.” The injunction was based on a claim of violation of free speech under the First Amendment. In that case, ruling in favor of the school, the Court concluded that the plaintiff did not demonstrate that she was likely to succeed on the merits and, therefore, denied the motion for preliminary injunction. See  Braun v. Sauk Prairie Sch. Dist., 11-cv-622-bbc, (W.D. Wis. Feb. 6, 2012). In its analysis, the Court expressed that the word “‘Boobies’ is a morally immature and [a] crude term for breasts,” (See id. at *13) stating that “although it is a far cry from the extended metaphor for sexual intercourse in Fraser, the phrase “‘I ♥ Boobies!’ is sexual innuendo that is vulgar, at least in the context of a middle school.” See id. at *14 (emphasis added).

Because this bracelet case has been “stretched” (no pun intended) by the Court’s order for an en banc rehearing “at the convenience of the court,” it is even more uncertain now when, or if, this issue will be one ultimately decided by the United States Supreme Court.

Underwood Hosts Special Education Seminar

On October 18, 2012, Underwood attorney Ronn Garcia spoke to special education directors and administrators from Regions 16 and 17 about special education “hot topics,” including child find, discipline, bullying, and avoiding and preparing for due process hearings.


Texas Senator to Push Legislation to Ban Employers from Requesting Social Media Passwords

Texas State Senator Juan “Chuy” Hinojosa intends to file legislation that prohibits an employer from asking current, former, and prospective employees for passwords to personal social media accounts. With the recent rise in social media use, many employers have begun reviewing prospective and current employees by viewing what is on their public Facebook, Twitter or other social media profiles. Some employers even go so far as to request that employees give their employers passwords to allow access to social media.

A growing number of states are considering similar legislation. Under the legislation, an employer will still be allowed to view the information a user determines to be “public,” however, they will no longer be allowed to request access to information not shared publicly and meant to be personal. Senator Hinojosa also intends the bill to disallow employers from requesting passwords to online discussion forums, personal email accounts, and mobile applications.

State and federal governments are continuing to limit employers’ access to social media. Senator Hinojosa’s proposed bill seeks to ban a practice that most employers should avoid anyway. As discussed in several Underwood employment seminars, employers will get themselves into trouble the more “snooping” they use to gain information about prospective, current, or former employees. As we have repeatedly said, if employers choose to use social media as a tool, only public information should be used. It appears that Texas may be poised to turn this advice into the law.

Top 20 Under 40

Congratulations to our John Atkins!  John was recognized as a 2012 Top 20 Under 40 Award Winner at the Amarillo Chamber of Commerce Annual Meeting held at the Civic Center on October 25, 2012.  We are proud to have John as one of young leaders as Underwood begins its second 100 years.

2012 Superintendents’ Leadership Conference

Underwood Law Firm is proud to be a Gold Level Sponsor of the Region 15 and 18 Superintendents’ Leadership Conference in Fredricksburg, October 22-24, 2012. David Backus and Ronn Garcia are guest speakers, and will present on Hot  Legal Topics on Wednesday, October 24th.

First Annual Special Education Seminar

Underwood Law Firm’s Public Education Law Section is proud to announce its first annual special education seminar. The seminar will be held on October 18th at the Lubbock Education Service Center. 

Topics to be presented include:

  • Lessons Learned from the Latest Due Process Hearings and Court Cases;
  • The Latest on a District’s Responsibility under Child Find;
  • How Bullying/Harassment Incidents Turn into Special Education Claims;
  • Properly Applying Student Discipline Policies to Special Education Students;
  • Strategies on Working with Parents to Avoid Due Process Hearings;  and,
  • A Due Process Hearing has Been Filed – What Now?

For more information click here, and to print a registration form, click here.