Democrats seek to lift secrecy surrounding school seclusion and restraint

Parents say it’s bad enough when they find out a teacher took steps to physically isolate or control a disruptive child who may pose a danger to others— but not getting the news immediately from the school is all the more unsettling.

As Democrats in Congress work to craft a bill that would create a federal standard on what's known as seclusion and restraint in K-12 schools, a key component is a parental notification requirement. Democrats want to bring the sometimes secretive practices of seclusion and restraint in schools out into the open — and say it's key to mandate that schools let parents know when such incidents have occurred.

The Education Department defines restraint as restricting a student’s ability to move their torso, arms, legs or head freely, and seclusion as confining a student alone in an area they may not leave, according to the Government Accountability Office, a congressional watchdog. Federal data shows that students with disabilities and black students are disproportionately affected, and some Democrats want seclusion outlawed entirely on the federal level.

Many states have passed laws dealing with seclusion and restraint but they vary widely. In about 20 states, schools aren’t required by state law to notify parents as soon as possible after a seclusion or restraint incident, according to a 2013 analysis by Teri Marx, a researcher at the American Institutes for Research.

Federal civil rights data shows that about 124,500 students in the 2015-2016 school year were restrained or secluded. That represents a very small percentage of the U.S. school population, but it's suspected that incidents are underreported.

There have been multiple reports of abuses of the practice over the years and horror stories continue to come to light. At a congressional hearing in February, Rep. Susie Lee (D-Nev.), told a House Education and Labor subcommittee of an incident in Las Vegas in which a mother went to her son’s school and found him secluded outside in 105 degree temperatures in what’s dubbed a “hot box.”

“My heart breaks for her, so I know we need to make changes,” Lee said.

Lawmakers who want better parent notification are using as a model a Kansas law that requires schools to immediately notify the parents of an incident, followed by a more formal meeting within five days between parents and several school personnel to discuss the incident.

That doesn't fly with some Republicans and school administrators who have been reluctant to embrace such a robust federal response. Citing work done by states to address seclusion and restraint, they say the federal law's passage could create an additional burden for schools and may even get in the way of progress in states that have sought to update their laws in light of abuses.

But proponents like Sen. Chris Murphy (D-Conn.) say a patchwork of unequally enforced state and district laws and regulations on seclusion and restraint is unacceptable.

“Confining students alone in locked rooms and using abusive methods to restrain little children should not be tolerated in America, and when restraint does occur, parents have a right to be notified,” Murphy told POLITICO in a statement. “Yet, in many states today, there are no requirements that schools make parents aware of these incidents.”

Murphy worked with Sen. Patty Murray (D-Wash.), House Education and Labor Chairman Bobby Scott (D-Va.), and Rep. Don Beyer (D-Va.), to file companion bills late in the last Congress that include notification requirements. The legislation would also outlaw the use of seclusion in any schools that receive taxpayer dollars and restrict the use of restraints to instances in which it’s deemed necessary for students and teachers' safety. The lawmakers are working to file similar legislation this congressional session and are hoping for bipartisan support.

Democrats last made serious headway toward getting a similar law passed in 2010. The Democratic-controlled House passed a bipartisan bill that would’ve placed new restrictions on the practices but it never got a vote in the Senate.

Democrats point to continued troubling incidents. A class action lawsuit filed in May on behalf of four students against the state of California and others described the guardian of a child identified as “Kerri K.” attending meetings on two different occasions at a school in California's Contra Costa County that offers special education services. The guardian found the girl restrained — and screaming during one of the incidents. The lawsuit said the girl was subjected to 45 documented instances in which restraints were used.

The guardian “expressly told the school that she was upset about this behavior and wanted it to stop,” the lawsuit said.

Cynthia Butler, a spokesperson for the California Department of Education, said that "the suit raises serious and important issues regarding dangerous practices inflicted on some children in school. California has committed, consistent with new legislation that took effect just this year, to strong leadership to eliminate unlawful restraint and seclusion in California schools."

Parents who have backed state law changes say they’d like to see an even more robust federal law.

That includes Alexa Zagorites, whose 14-year-old daughter Gigi — acknowledged in “Gigi’s Law” — was honored during a ceremonial signing on Thursday by Virginia Gov. Ralph Northam. Zagorites said she discovered her daughter, who has a genetic disorder and is non-verbal, was being secluded in a Lansdowne, Va., classroom with furniture after a fellow student took her picture and it was discovered by the student’s mother on his computer tablet.

Publication of the photo in the Loudon Times-Mirror helped drive passage of the law, which requires the state to craft regulations to address seclusion and restraint in schools.

Zagorites told POLITICO she’s pleased that state lawmakers in Virginia addressed the issue, but she said the law doesn’t go far enough because it doesn’t specifically outlaw seclusion and she’d like to see more stringent parental notification requirements.

Wayde B. Byard, a spokesperson for the Loudoun County Public Schools, said in an email that the district “proactively” developed policy and regulation on restraint and seclusion before passage of the state law, and provided its policy as a resource to a state legislative team that worked on the issue.

“Maintaining a safe and productive learning environment is a high priority of LCPS for both students and staff,” Byard said.

Zagorites said in her case, it wasn’t until the photo came out that she better understood her daughter’s recent behavior.

“It was almost like everything made sense,” Zagorites said. “That’s why she’s been so upset lately, because she’s been trying to tell me that she’s upset.”

Even when parents are told about an instance of seclusion or restraint, schools sometimes use terms that parents don’t understand, said Heather Luke, an advocate with the Parents’ Place of Maryland, a nonprofit that assists parents of children with disabilities.

She said when her own son at the age of 10 was subjected to seclusion in a concrete cell-like structure at his former school in Virginia, about eight years ago, she learned about it only when he broke bones in his hand and foot. She said the school had called it a “quiet area."

"It didn't occur to me that the restraint, seclusion, all that stuff, wasn't somehow federally regulated," Luke said. "When I found what was happening, it absolutely stunned me."

Any new push for a federal law will face scrutiny. The AASA: The School Superintendents Association, opposed the 2010 bill, but didn’t take a position on the legislation filed last year.

The organization has historically argued that seclusion and restraint should not be commonplace or used to punish bad behavior, but that the practices are “necessary tools” for school personnel to defend themselves and their students as a last resort. It’s also expressed concern that such federal legislative efforts could lead to a greater number of students with severe emotional and behavioral disabilities being educated exclusively in segregated settings.

In 2012, the superintendents group said parent notification requirements that require a post-event meeting would be “extremely difficult” given parent and staff schedules and would be “onerous” for districts — “particularly in circumstances where contingent restraint is used once a week or several times a month.”

In Kansas, G.A. Buie, the executive director of the United School Administrators of Kansas, said the parental notification requirements passed into law in 2015 in Kansas were something most schools were already doing.

“That’s good practice," Buie said.

Buie said the law, however, has required more paperwork and reporting requirements in other situations separate from the law’s intent. That includes a fight in which a teacher had to pull a student away.

“We had to call that a restraint situation by the teacher although it was a fight,” Buie said.

At the congressional hearing in February, Rep. Rick Allen (R-Ga.), the subcommittee’s ranking Republican, praised the Kansas law after a special education teacher described how it works. While he questioned whether a similar federal law was necessary, he said some type of process is needed to make sure “anything like this would be an absolute last resort.”

“I applaud Kansas. I think y’all have done some great work on this. I think there are some other states that need to get involved,” Allen said.