The Use of Restraints with Students with Disabilities: An Update of the Case Law

By Zirkel, Perry A. | National Association of School Psychologists. Communique, March/April 2016 | Go to article overview

The Use of Restraints with Students with Disabilities: An Update of the Case Law


Zirkel, Perry A., National Association of School Psychologists. Communique


The use of restraints with students with disabilities has been a major legal issue in recent years. Congress has repeatedly considered bills to restrict the use of restraints in K-12 schools to emergency situations and prohibit the use of seclusion, but the chief proponent of federal legislation, Senator Tom Harkin, recently retired. The movement against such aversive procedures appears to have shifted to the state legislative level, with several states adding or strengthening laws restricting restraints in the wake of proposed federal legislation (Butler, 2015).

Zirkel and Lyons (2011) identified 61 court cases concerning the use of restraints with student with disabilities published between 1980 and June 2010. Their findings in terms of demographic case characteristics included that (a) the most frequent disability classification was autism either alone or in combination with other classifications (55%); (b) the types of challenged restraints-based on the broad prevailing definitions-were physical (66%) and mechanical (32%), with several cases concerning combinations of these and other aversive actions; and (c) most of the cases were liability lawsuits in federal court, with some including ancillary state law claims. Most of the plaintiff-parents employed a "spaghetti strategy of throwing everything against the wall and hoping something sticks" (p. 346), filing various claims against multiple institutional and individual defendants based on federal law, such as Fourteenth Amendment substantive due process (SDP) or the Americans with Disabilities Act (ADA), and/or state law, such as assault and battery or intentional infliction of emotional distress. As a result, the 61 cases generated 81 relevant decisions that, in turn after conflating within each legal basis, amounted to more than 400 claim rulings. Furthermore, they found that the outcomes of the claims rulings were strongly skewed in favor of the defendants, with none conclusively in favor of the plaintiff-parents, although approximately 40% of the claims rulings were inconclusive. Because all of the decisions were in response to a motion for one of the two successive pretrial stages, the rulings were inconclusive where the court either denied a motion for dismissal or summary judgment or instead granted the motion for dismissal "without prejudice," thus preserving the matter for further proceedings or settlement. For example, a common preliminary disposition of various federal claims, such as those under Section 504 and/or the ADA, was to dismiss the case subject to "exhaustion" of a due process hearing under the Individuals with Disabilities Education Act (IDEA). Similarly, a frequent disposition of state law claims in federal court based on legislation, such as a state civil rights statute, or common law, such as negligence, was to decline jurisdiction, thus allowing the parent to refile these claims in state court. When the outcomes were reanalyzed per case, using the claim ruling that was most favorable to the plaintiff-parent, the inconclusive category expanded to approximately 65%. Yet, the only recorded instances of parent success were occasional settlements reported in local newspapers.

UPDATE OF THE CASE LAW

The purpose of this article is to provide an update of the relevant case law based on court decisions found for the most recent 4-year period ending on November 30, 2015, which was the date for completion of the data collection. The methodology was similar to Zirkel and Lyons's (2011) model. Table 1 (see page 6) summarizes the results in terms of (a) the parties' names, court, and date of the most recent relevant decision; (b) the child's classification; (c) the challenged district's alleged aversive action(s), including the type(s) of restraint at issue; and (d) the overall outcomes (D = conclusively in favor of the defendants; Inc. = inconclusive; and P = conclusively in favor of plaintiff) for three categories of claims: Const. = federal Constitution, such as SDP; Leg. …

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