The video of a police officer cuffing a special needs student has provoked strong reactions of horror and disgust nationwide - and understandably so, as this officer's actions were wrong on so many different levels, and may scar that child emotionally for a very, very long time. While many have commented on the nature of the punishment that should be doled out to this policeman, I think this misses some of the more important questions, because by focusing on the punishment, we are looking backwards rather than forward.

To me, two of the more critical questions are as follows: 

What does the law say about schools restraining students? And do these laws go far enough?

Fortunately, back in May, 2012, the U.S. Department of Education published Restraint and Seclusion: Resource Documentin an attempt to provide general guidelines for the states, address parental concerns, and as an acknowledgement that

 "[T]he use of restraint and seclusion can have very serious consequences, including, most tragically, death. Furthermore, there continues to be no evidence that using restraint or seclusion is effective in reducing the occurrence of the problem behaviors that frequently precipitate the use of such techniques." 

In order to generate this report, the The U.S. House of Representatives’ Committee on Education and Labor requested the U.S. Government Accountability Office (GAO) to review the available evidence on the use of restraint and seclusion. The GAO, in turn, reviewed applicable Federal and State laws, interviewed knowledgeable State officials and recognized experts, and examined available evidence of abuse allegations from parents, advocacy organizations, and the media for the period between 1990 and 2009.

As a result, the Department of Education came up with "15 Principles" for student restraint and seclusion, including 

2. Schools should never use mechanical restraints to restrict a child’s freedom of movement, and schools should never use a drug or medication to control behavior or restrict freedom of movement (except as authorized by a licensed physician or other qualified health professional).

3. Physical restraint or seclusion should not be used except in situations where the child’s behavior poses imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger of serious physical harm to self or others has dissipated. 

What is the Law in New York Regarding Restraint of Students?

New York has adopted regulations that prohibit using restraints as a means of corporal punishment. On the other hand, Regulation 8 NYCRR §§19.5(a) and 100.2(l), as well as §§200.15(f) and 200.22(d) (the latter two of which cover "emergency situations") also provide that 

  • In situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, nothing contained in the regulations must be construed to prohibit the use of reasonable physical force for the following purposes:
    • to protect oneself from physical injury;
    • to protect another pupil or teacher or any person from physical injury;
    • to protect the property of the school, school district or others; or
    • to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school or school district functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts.

Where New York's Laws Fall Short of the Mark

As a practical matter, since these are administrative regulations, rather than statutes that were passed by New York's legislature, a violation of these regulations would likely only constitute evidence that the school acted negligently rather than absolute proof that the school was negligent (or, in legalese, that the school was "negligent per se"). In other words, a violation of this rule will not automatically expose New York's schools to liability.

Jonathan Cooper
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Non-Compete, Trade Secret, Unfair Competition and School Negligence Lawyer
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