On July 20, 2015, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2014-15 school year, utilized improper restraint procedures and properly implemented the student’s behavior intervention plan.
Wisconsin’s law on the use of physical restraint in public schools prohibits physical restraint unless a student’s behavior presents a clear, present, and imminent risk to the physical safety of the student or to others, and it is the least restrictive intervention feasible. Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move his torso, arms, legs, or head. Techniques used must give adequate attention and care to protecting the student’s head, and must not cause chest compression or place pressure or weight on the student’s neck or throat, on an artery, or on the back of the pupil’s head or neck, or otherwise obstruct the student’s circulation or breathing. In addition, an individual may not use a mechanical or chemical restraint on the pupil. The law applies to individuals employed by the school district or under contract with the school district as an independent contractor, to provide services for the benefit of the school. Law enforcement officers authorized or designated by the school district to enforce any law or ordinance and maintain the physical security and safety of the public school are not covered under the law.
The law also includes certain notification requirements. If seclusion or restraint is used on a student at school, the principal or a designee, after consulting with school staff present during the incident, must prepare a written report within two business days after restraint or seclusion was used. The written report must include the student’s name, the date, time and duration of the incident, a description of the incident including a description of the student’s behavior before and after the incident, and the names and titles of school staff present during the incident. The principal or designee must also, within one business day after the incident, notify the student’s parent of the use of restraint and/or seclusion and that a written report will be available within three business days. The parent notification does not have to be in writing.
Except under a limited exception, which is referred to as the “unforeseen emergency exception,” a staff member may not use physical restraint unless he or she has received the required training described in the statute. When an individualized education program (IEP) team reasonably anticipates that the use of physical restraint and/or seclusion may be necessary, the IEP must include appropriate positive interventions, supports and other strategies based on a functional behavior assessment (FBA) that address the behavior of concern, and the IEP includes the use of the term seclusion and/or or restraint.
On December 17, 2014, the student’s IEP team met to conduct a reevaluation, review and revise the IEP, and determine placement. The IEP developed identifies behavior as impeding the learning of the student and others, and indicates a FBA was conducted to determine the function of the behavior. Positive behavioral interventions, supports and strategies based on the FBA were included in the student’s IEP. These supports and strategies included a five point scale check-in/check-out, incentives, preferred activities, positive praise, reset between transition times, phone calls, use of sensory activities and area, walking outdoors, giving the student space, role and video modeling, social stories, and use of choices. The IEP team also developed annual goals to address behavior and provided special education services that included behavioral and social supports. The potential need for the use of seclusion and physical restraint are specified in the student’s behavioral intervention plan (BIP) that is part of the student’s IEP. The BIP also includes the statement the police liaison and/or police department may be called to intervene. The seclusion and/or physical restraint plan was reviewed on February 6, 2015.
The district has multiple staff at the school trained in the use of physical restraint. In addition, the district utilizes both school resource officers (SRO) and district security officers. The SRO is an on-duty police officer who is assigned to provide law enforcement services for the district pursuant to a contract between the district and city. The SRO is not employed by the district and is not utilized to assist with the education or behavior of students. A district security officer is an off-duty law enforcement officer hired to assist administration in creating and maintaining a safe and secure school environment. In addition, the district security officer is hired to respond as a police officer, thus exercising the regulations and rules of the police department, when faced with a criminal situation involving a violation of a city ordinance or state law.
Between January 2015 and the end of the 2014-15 school year, the student was restrained on two separate occasions at the high school. On January 28, 2015, staff members offered sensory activities to the student when the student became restless and stated he did not want to work with the teacher and was leaving. The student left the classroom and district security staff was called. District security staff followed their planned procedure closing the double doors and entering the hallway. The student was in the hallway and was swearing at staff. A principal followed the student and watched him from about 20 feet, giving the student space in accordance with the student’s BIP. When the student grabbed a fire extinguisher, the district security officer quietly told the student it was not a good idea and to put it back. The student put it back but slammed the door and swore at the district security officer. Staff implemented the student’s BIP.
The student sat on the stairs and when another student was allowed to leave through the double doors he ran toward the double doors and the district security officer. The district security officer closed the door and the student kicked the district security officer in the knee and leg area. The district security officer used a body stance in accordance with training protocols to protect himself. The student kicked and shattered the glass window adjacent to the door. The district security officer then restrained the student using a hold consistent with training protocols and state law to prevent the student from hurting himself or others. Two additional district security officers, who are off-duty police officers, came to assist. The student continued to be physically aggressive. At that point, the off-duty police officers determined that police intervention was necessary and that the student would be taken into custody. These district security officers then hand-cuffed the student and directed him to a squad car to be transported to a police station. The written report indicates that the duration of the physical restraint was three to five minutes. On January 28, with a phone call, the parent was notified of the incident and the availability of the written report. The written report was developed within two business days. On January 30, the parent was provided a copy of the report.
The student’s behavior presented a clear, present, and imminent risk to the physical safety of the student and to others, and the district security officer, in restraining the student, used a hold consistent with training and state law requirements. The use of hand-cuffs would not be permitted because they would be considered a mechanical restraint. However, in these circumstances, when the off-duty police officers used hand-cuffs they were doing so pursuant to taking the student into custody as a police intervention. The officers were acting pursuant to the authority to respond as a police officer, thus exercising the regulations and rules of the police department, when faced with a criminal situation involving a violation of a city ordinance or state law, and as noted above, law enforcement officers are not covered under the act.
On March 23, 2015, the student was frustrated in class and walked out of the classroom and walked in the hallways. A staff member directed the student to go out specified doors for a walk. The student refused and attempted to enter the cafeteria. Staff talked to the student, redirected him to the classroom, suggested he phone home or use the computer or sensory tools to calm down. Staff implemented the student’s behavior intervention plan.
The SRO was alerted and went to the double fire doors. The SRO stood between a group of passing students and the student. After the students passed, the SRO directed the student to return to his classroom. The student went to the double doors and attempted to open the locked doors followed by kicking and hitting the doors. The SRO walked to about three feet of the student and told him to stop. The student lunged at the SRO with his right shoulder impacting the SRO in the chest and extending his right elbow into the stomach area. The SRO grabbed the student’s shoulders from behind to prevent the student from hitting him. When the student attempted to pull away from the SRO, the SRO spun and directed the student to the floor. The student continued to be physically aggressive. A district security officer came to assist. The SRO told the student he was under arrest and to put his hands behind his back. The SRO directed the district security officer to assist him and to put the SRO’s handcuffs on the student. The SRO and district security officer lifted the student and carried him to the police car. The student continued to fight and pull away. The written report indicates that the duration of the physical restraint was eight minutes. On March 23, with a phone call, the parent was notified of the incident and the availability of the written report. The written report was developed within two business days.
The SRO is not a covered individual under the state law on the use of physical restraint in public schools, and the department does not have the authority to review whether the police officer acted in accordance with police standards and training.
The school district properly implemented the student’s behavior intervention plan and did not utilize improper restraint procedures. This concludes our review of this complaint, which we are closing.
//signed CST 9/17/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support