Toolbox Tuesday!! A new case about restraint.

Toolbox Tuesday is all about the ten tools that we present in a full day training program dealing with the management and discipline of students with disabilities.  One of those tools, in fact the most important one, is Tool #1—a BIP.  When we talk about BIPs, we emphasize that a BIP should not restrict the use of physical restraint in an emergency.  State law and regulation restricts the use of restraint, and our new law pertaining to “aversive techniques” needs to be considered as well. But even with all those restrictions in place, there are times when some use of physical restraint is required to prevent greater harm.

But how do you respond to the parent of a student whose disabilities may be the direct cause of their loss of control?  You can understand the parents’ desire that schools not use physical restraint with their child.  But you are responsible for safety, and sometimes there is no alternative.  Can you use physical restraint on a student with an emotional disturbance when the disability is the direct cause of the student’s violent behavior? 

This came up in a recent federal court case from Kansas.  The court ruled in favor of the school district in a case where the parent alleged that the district used restraint to deal with behavior that was a manifestation of disability.  The parent argued that this amounted to disability discrimination in violation of Section 504 and the ADA.  The court refuted that argument, citing 10th Circuit precedent that permits certain types of “regulation” of conduct even when the behavior is a manifestation of disability:

Even though E.C. alleges that all of his actions were “manifestations of his disability,” the 10th Circuit has specifically held that “a student’s conduct may be regulated,” even if it is a “manifestation of his disability.” 

This is a fundamental point that is often overlooked.  The manifestation process is required only when the school proposes a disciplinary removal that amounts to a change of placement.  Other forms of regulation of conduct, such as restraint, are permitted even when behavior is a manifestation.

The case is E.C. v. USD 385 Andover. We found it at 74 IDELR 94 (D.C. Kan. 2019).


Tomorrow: That teacher who deviates from scope and sequence.