This Article provides an in-depth analysis of the nationwide problem of using restraint and seclusion on children in schools, as well as the ineffectiveness of current state laws regarding the use of these techniques. The Article argues that federal standards are necessary to protect children against the widespread use of these techniques.
The Author discusses the inconsistent state laws, with nineteen states having no laws or standards on restraint and seclusion, only eight prohibiting the most dangerous type of restraint, and the rest having various forms of restrictions. Insufficient training received by teachers and staff members and the lack of documentation of these incidents exacerbate the issues with the techniques. Additionally, the current legal remedies available for children who have suffered from these techniques are inadequate because they are reactive, are very fact-intensive, and do not offer a way to prevent the same conduct in the future.
There are insurmountable barriers for parents to cross in attempting to bring suit under either of the two common options, an Individuals with Disabilities Act violation or a violation of the child’s constitutional rights. The Individuals with Disabilities Act requires that a parent must exhaust the administrative process before bringing suit, and constitutional litigation involves a very high standard where it is difficult, if not impossible for parents to prove that the conduct reaches the level of a constitutional violation. The Author argues that the only way to solve this problem is for Congress to create minimum standards that regulate the use of these techniques, require training in safe restraint and alternative solutions, and include documentation and enforcement regulations.