On December 7, 2022 and December 16, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) announced separate resolution agreements with the Davis Joint Unified School District (DJUSD), California and Southeastern Cooperative Educational Programs (SECEP), Virginia. The agreements pertain to the districts’ use of restraint and seclusion interventions on students with disabilities, and how those interventions impact their free appropriate public education (FAPE).
OCR determined that DJUSD “placed three of its students with disabilities in nonpublic school settings and violated their rights under Section 504 and Title II.” The agreement for SECEP states it “may have denied FAPE to students with disabilities when it did not reevaluate students after multiple incidents of restraint and seclusion and when students missed significant instructional time.” In both cases, OCR recognized that the students subjected to multiple instances of restraint and seclusion had their right to FAPE impacted.
The significant extent of the restraint interventions in the Davis case is notable. In the DJUSD matter, Assistant Secretary for Civil Rights Catherine E. Lhamon wrote: “The tragic death of a child subjected to prolonged and repeated restraint at a school placement through this district underscores the urgency for school communities everywhere to carefully examine their restraint and seclusion practices to safeguard children in their care, in addition to their obligation to satisfy the federal civil rights laws we enforce.”
Both resolution agreements detail corrective action and include review and revision of policies and procedures, implementation of some form of monitoring protocol, and ongoing interactive evaluation. They also included modifications to forms of record keeping for instances when a student is restrained or secluded, plus the creation of specific, detailed, and timely review processes to ensure access to FAPE.
Each school district has committed to corrective actions under their respective resolution agreements during a defined review period overseen by OCR.
OCR’s decision to investigate these two restraint and seclusion cases and to publish both investigation resolutions perhaps signals a heightened level of attention toward these specific issues within ADA/504.
Recent high-profile cases involving other forms of restraint by assigned school resource officers, staff, or third-party contractors complicate the already fragile balance that exists between student civil rights and their access to FAPE and a district’s educational mission.
We know OCR is investigating more restraint and seclusion and FAPE complaints than they have previously, and that may be because they are receiving more complaints. . In 2022 there were
24 new restraint and seclusion cases under investigation by OCR, and 582 FAPE cases. In 2021 there were only 8 restraint and seclusion cases opened, and 159 regarding FAPE.
Secondary school administrators and teams responsible for ADA/504 compliance must stay current on best practices. Consider designing a compliance plan that establishes annual as well as situation-specific reviews of policies and procedures, and/or quarterly reviews of use of restraint or seclusion interventions to discover patterns or areas for improvement.