Sunday’s Children and the Law News Roundup

Here’s a look at today’s top stories affecting children’s rights, juvenile justice, and education:

Texas Districts Flagged for Suspending Students With Disabilities, Education Week

Disability Rights Texas has flagged 30 districts for disproportionately using out-of-school suspensions to punish students with disabilities.

Based on data from the Texas Education Agency, the group said that in these 30 districts, about 22 percent of students with disabilities were suspended out of school during the 2010-11 school year, compared to an average of 7 percent for students with disabilities in all Texas districts. But across all groups of students in all districts, only about 4 percent of students were suspended out of school, Disability Rights Texas said in a report this month.

Two Notable Changes in [Texas] Law on Student Discipline Take Effect for New School Year, Burnt Orange Report

Two notable changes in the law regarding student discipline take effect in this new school year.

Anti-Bullying: HB 1942 by Republican Rep. Diane Patrick of Arlington, enacted in 2011, makes significant new state law on the issue of bullying. As of the start of the new 2012-2013 school year, HB 1942 establishes a comprehensive definition of bullying, including bullying by electronic means (so-called cyber-bullying), and requires school districts to adopt a local anti-bullying policy. The new law allows school districts to transfer the bully to another classroom or campus (where prior law has authorized only the transfer of the victim). The local anti-bullying policy must contain eight specified elements, including a provision that prohibits “imposition of a disciplinary measure on a student who, after an investigation, is found to be a victim of bullying, on the basis of that student’s use of reasonable self-defense in response to the bullying.”

Expulsions: Starting with the 2012-2013 school year, HB 968 by Democratic Rep. Mark Strama of Austin narrows the categories of misconduct that can trigger discretionary expulsion of a student while in a disciplinary alternative education program (DAEP). Until now, a student could be expelled for any “serious or persistent” misconduct while in a DAEP. Under the new law, a student may be expelled for “documented serious misbehavior while on the program campus despite documented behavioral interventions.”

Trends in Juvenile Justice State Legislation 2001 – 2011 (Report), National Conference of State Legislatures

Grits for Breakfast highlights a noteworthy finding in the report:

A major trend in juvenile justice policy in the past decade has been to expand the jurisdiction of the juvenile court by increasing the upper age of jurisdiction. Today, 38 states set the maximum age at 17, 10 states—Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas and Wisconsin—set the age at 16, and two states—North Carolina and New York—set it at 15; therefore, 16- and 17- year-olds automatically are tried in the adult system.

In 2007, a Connecticut law raised the age of juvenile court jurisdiction from 16 to 18. Connecticut previously had the largest number of inmates under age 18 in its adult system. According to recent data, the proposed change in the age of juvenile jurisdiction moves more than 10,000 new cases a year from the adult criminal justice system to the juvenile justice system. Research also shows that moving 16- and 17-year-old youth out of the adult system into the juvenile system will return about $3 in benefits for every $1 in cost.

Also in 2007, the Rhode Island General Assembly reversed the governor’s recommendation to decrease the age of juvenile jurisdiction from 18 to 17 and restored the jurisdiction age to 18. The same year, Missouri expanded juvenile court jurisdiction to include status offenders age 18 and younger. In 2009, an Illinois act raised the age of juvenile court jurisdiction from 17 to 18 for youth charged with misdemeanor offenses, while Colorado expanded eligibility for sentencing for select youth ages 18 to 21 to the youthful offender system instead of to the adult offender population.

In 2010, a Mississippi law allows juveniles charged with certain felonies— robbery, drug offense and arson— to remain in the juvenile justice system. Previously, all 17-year-olds charged with felonies were tried in adult court. The same year, an Oklahoma measure provided that those up to six months into age 18 can be adjudicated in the juvenile system for misdemeanors.

Delinquent by Reason of Poverty, Juvenile Justice Information Exchange (JJIE)

Years before they turn 18, millions of children are caught up in the U.S. juvenile justice system, a principal feeder into the criminal courts. Recent research has revealed that as a result of both institutional and structural causes, the standard of proof in delinquency court is determined in large part by the socioeconomic class of the accused, rather than the nature of the forum. As a result, the state’s burden of proof is lowered for indigent children and heightened for affluent ones. Therefore, in all but the most serious of cases, children from low-income homes do not have to be as “guilty” as those from families of means in order to enter and remain in the system, widening the net of court intervention for the poor.

Congress Should Pass the Keeping All Students Safe Act

Tens of thousands of students with special needs attend schools around the country every day. Laws like the Individuals with Disabilities Education Act (IDEA), Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act aim to make these students’ public school experiences free and appropriate.

However, students with intellectual and developmental disabilities often still face unequal treatment at school. Last month, a U.S. Department of Education report was released that showed that students that qualify for special education services are subject to physical restraint and seclusion at rates far higher than the general student population. The report shows, “Students with disabilities (under the IDEA and Section 504 statutes) represent 12% of students in the sample, but nearly 70% of the students who are physically restrained by adults in their schools.”

In addition, a 2009 Government Accountability Office (GAO) study found unnecessary seclusion and restraint has caused significant psychological and physical injuries to thousands of students across the country. The study also found that over 200 students have died from unnecessary seclusion and restraints over a five-year period.

The Need for a Federal Law

The disparity in treatment between the general student population and students receiving special education services prompted Senator Tom Harkin and Representative George Miller to file legislation seeking to ban unnecessary restraint and seclusion of students. Rep. Miller’s HR 1381 is currently in the House Subcommittee on Early Childhood, Elementary, and Secondary Education. Sen. Harkin’s S.2010 is currently sitting in the Senate Committee on Health, Education, Labor and Pensions.

Both bills would establish a national standard that physical restraint is only acceptable in scenarios where there is an immediate threat of physical harm.

Rep. Miller’s and Sen. Harkin’s bills have similar purposes and provisions. Sen. Harkin’s bill would:

  • Prohibit the use of seclusion in locked and unattended rooms or enclosures
  • Prohibit the use of mechanical and chemical restraints and physical restraints that restrict breathing
  • Prohibit aversive behavioral interventions that compromise health and safety
  • Prohibit the use of physical restraints except for emergency situations
  • Prohibit the use of physical restraints that inhibit a student’s primary means of communication
  • Prohibit the use of seclusions and/or restraints in a student’s Individual Education Plan (IEP) or any other behavioral plan
  • Call for states to promote preventative programming to reduce the use of restraints
  • Call for states to collect data on the occurrence of seclusions and restraints
  • Call for schools to conduct a debriefing with parents and staff after a restraint is used and plan for positive behavioral interventions that will prevent the use of restraints with the student in the future
  • Establish a state grant program to enhance the State’s ability to promote, within its LEAs, preventative programming and training for school personnel

However, at least one group is not on board with the new legislation. The American Association of School Administrators (AASA) opposes the Act. Last month, AASA produced a report entitled, “Keeping Schools Safe: How Seclusion and Restraint Protects Students and School Personnel.” As the title indicates, the report outlines a number of reasons why responsible use of restraint and seclusion can protect the physical wellbeing of teachers and students.

The problem, however, is that many teachers and administrators are not trained in proper methods, and often improperly restrain students. Improper implementation of restraints can psychologically damage, physically injure, or kill a student. The Council of Parent Attorneys and Advocates (COPAA) has responded to each of ASAA’s findings.

Current Law in Texas

Texas is one of only 14 states that limits the use of restraints to physical safety emergencies.

Texas Education Code Section 37.0021 states: “A student with a disability who receives special education services…may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique.”

The Code defines “seclusion” as confining a student in a locked box, closet or room that is designed solely to exclude a person AND is less than 50 square feet of space. Therefore, locking a student in a space larger than 50 square feet cannot qualify as seclusion. The Code prohibits school district employees from placing a student in “seclusion.” There are exceptions for situations when a student has a weapon or when seclusion is court-ordered.

The Code delineates between “seclusion” and “time-out.” A time-out is defined as, “a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting (A) that is not locked; and (B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.”

The Texas Education Agency (TEA) has adopted procedures for schools’ use of time-out and restraint in Title 19 of the Texas Administrative Code Section 89.1053. Teachers can restrain a student in an emergency situation if:

  • (1) Restraint shall be limited to the use of such reasonable force as is necessary to address the emergency.
  • (2) Restraint shall be discontinued at the point at which the emergency no longer exists.
  • (3) Restraint shall be implemented in such a way as to protect the health and safety of the student and others.
  • (4) Restraint shall not deprive the student of basic human necessities.

The procedures also require regular training for some members of the school. Moreover, when a teacher restrains a student with special needs, an administrator and the parent must be notified. Detailed documentation must also be filed in the student’s special education file (a sample form is provided by TEA).

The regulations also include information on the proper use of time-out. Among other requirements, the time-out must be administered by a trained professional and cannot be physically forced.

What’s Next?

Texas is certainly ahead of the national curve when it comes protecting students with special needs from unnecessary seclusion and restraint. However, a national standard is necessary to push the remaining 36 states lacking a statute in the right direction.

Want to see action? Contact your legislators and ask them to sign on to the legislation currently before Congress. COPAA shows how to find and contact your legislator, as well as a sample message you can send your Representative and/or Senator by email.