Toolbox Tuesday: Let’s take another look at the “aversive techniques” law.

On Tuesdays at the Daily Dawg we focus on The Toolbox—our firm’s all day training program regarding disciplinary options with students in your special education program.  Today, let’s consider our new law regarding the use of “aversive techniques.” Many questions are swirling around about this.  We will eventually get some guidance from the Agency about the various ambiguities in the law, and that will help.  But the language of the statute is still going to leave considerable room for interpretation. 

In that context, I think the intent of the bill’s author is relevant.  Here are some important excerpts from Senator Lucio’s “Statement of Intent”:

While certain emergency interventions have their place in protecting the safety of students, extreme aversives--behavioral interventions that aim to use negative stimuli to stop or deter a behavior—can cause severe physical, mental, and emotional harm to students and should never be used.  Unfortunately, although the vast majority of educators never use such techniques, interested parties have reported instances where extreme interventions such as electric shock, noxious sprays or gases, or interventions that impair a student’s breathing or circulation have been used due to lack of guidance on prohibited aversives in current law.  (Emphasis added).

This Statement of Intent supports the idea that the word “significant” in the statute is…significant.  The umbrella definition of “aversive techniques” in the new law says this:

In this section, “aversive technique” means a technique or intervention that is intended to reduce the likelihood of a behavior reoccurring by intentionally inflicting on a student SIGNIFICANT physical or emotional discomfort or pain.  (Emphasis added).

Consider the fact that this statute is about disciplinary interventions, which inherently are likely to produce some degree of “emotional discomfort or pain.”  Were you ever sent to the principal’s office?  Do you recall the “emotional discomfort” you experienced as you walked down the hall to meet your fate?  Was your discomfort enhanced by the thought of how your parents would respond? 

This statute is not about that kind of discomfort.  The teacher who scolds a student may produce in the student an unpleasant level of “discomfort.”  But that’s a long way from the “extreme aversives” that Senator Lucio uses as examples.

The same analysis goes with “physical pain.”  The coach who assigns the student 20 pushups as a consequence for being late for practice is intentionally inflicting some degree of physical pain.  Is it “significant”?  I think not.

The statute is going to be interpreted by a lot of people before we get any definitive ruling from a high level court.  Principals and athletic directors are going to have to interpret the statute when a parent makes a complaint.  Some of those complaints will go to the superintendent, and/or the board.  All of those parties will have to apply their interpretation of “significant.”  In doing so, all of those parties would be wise to take into account Senator Lucio’s Statement of Intent and the extreme examples he offers that were the target of this legislation.


Tomorrow: Are all kids with dyslexia eligible for special education?