We like to highlight The Toolbox on Tuesdays around here. The Toolbox is a one day training program aimed at campus administrators and special education staff. In the Toolbox, we learn how to use the ten “tools” that are available to school administrators in dealing with challenging student behaviors. We don’t classify physical restraint as one of the ten tools, but it is something that we talk about in the training. And with the advent of cameras in our special education classrooms this year, we found a recent case from Clark County, Nevada (Las Vegas) very interesting.
It started with a complaint from the parent of a non-verbal student with autism. The student was assigned to what sounds like a self-contained classroom. This is the type of classroom which, in Texas, would be eligible for a camera next year. The parent reported that the student had come home from school with multiple bruises.
In response to the parent complaint, the Clark County School District Police Department decided to install hidden surveillance cameras in the classroom. The plan was for a police officer to monitor a live feed from the classroom, beginning on March 5, 2012. However, the assigned officer called in sick, so nobody watched the video feed that day.
But an officer watched the live feed the next day, and was shocked by what he saw. A teacher’s aide “repeatedly dragged M.P. [a student] to the ground and pinned him to the floor with her knees and elbows.” At one point the boy crawled under a table “only to be dragged back to the center of the room by his wrist” by the aide. The video also showed the same aide “without any apparent provocation, repeatedly shove a different student who also was not resisting or being combative.”
After other officers also viewed the video, they contacted the school’s assistant principal and special education facilitator. The educators confirmed that what the aide was doing did not conform to district policy and procedures regarding restraint. So the cops arrested the aide.
Now that the aide was removed from the classroom, the police watched additional footage from the classroom. They observed the aide committing three additional batteries of the student, including one that happened two hours after the officer first saw the live feed. This timeframe became important in the subsequent litigation, as the parents alleged that the district was tardy in responding to the situation.
The aide eventually pled guilty to two gross misdemeanor charges of child abuse, neglect, or endangerment. She also was named as a defendant in the civil suit, along with the district and three district police officers.
The court dismissed all claims against the police officers. The suit against them was based on the theory that they “failed to monitor the live feed on March 5, 2012, or take immediate action to intervene when they witnessed [the aide] aggressively dragging and pinning M.P. on March 6, 2012.” The court pointed out that these allegations, even if proven true, were not sufficient to impose liability:
…the Officer Defendants cannot be said to have taken any affirmative action to place M.P. in harm’s way.
Instead, Plaintiffs’ evidence shows only a possibility that the Officer Defendants could have more quickly resolved a dangerous situation they played no part in creating.
However, the court did not dismiss the case against the school district. In large part, this was based on the fact that the teacher’s aide testified that the district had trained her to use physical restraint, and that she completely complied with her training. The district refuted that assertion, but the conflict in the testimony created a fact issue that precluded the court from issuing an early dismissal of the case:
Plaintiffs have submitted several pieces of evidence, which considered together in the most favorable light, demonstrate that CCSD had a policy of deliberate indifference which facilitated the unwarranted use of force upon students in Classroom 25, including M.P.
Will we see cases like this in Texas, once the cameras start to roll? Who knows? Our law prohibits anyone from continually or regularly monitoring the video. So no police officer or assistant principal should be put in the awkward position of witnessing, live, an act of physical abuse in the classroom. But how the law is written and how it works in real time are two different things. So we shall see. Meanwhile, our main hope is that there is no physical or emotional abuse taking place in our self-contained classrooms. If it doesn’t happen, it can’t show up on video.
The case is Phipps v. Clark County School District, decided by the federal district court for Nevada on February 22, 2016. We found it at 67 IDELR 91.
DAWG BONE: MAKE SURE WE ARE USING PHYSICAL RESTRAINT IN ACCORDANCE WITH LAW, REGULATION AND TRAINING.
File this one under: SPECIAL EDUCATION DISCIPLINE
TOMORROW: THE COURT LABELS IT “STUPID, BUT CONSTITUTIONAL.”