March 6, 2017 marks a significant development in the case of Gloucester v. G.G., the closely followed and highly publicized Virginia transgender student bathroom case. The Gloucester case involves a local school board policy that effectively denies a transgender male high school student use of his school’s male bathroom and, in turn, the student’s claim of unequal treatment and discrimination by the board based upon sex under Title IX. The United States Supreme Court granted certiorari back in October 2016 certifying only two issues for its consideration: 1) whether deference should extend to an unpublished letter by the United States Department of Education, Office of Civil Rights (OCR), which does not carry the weight of law and was adopted in the context of the dispute at hand, indicating that Title IX applies to transgender identity, and 2) without deference to the agency, should the Department’s specific interpretation of Title IX be given effect. The United States Supreme Court will not hear the Gloucester case this month as scheduled. The Court vacated the ruling below and remanded the case back to the 4th Circuit Court of Appeals for reconsideration of the issues, presumably to include whether Title IX’s prohibition against discrimination on the basis of sex extends to gender identity. The Court takes such action notwithstanding requests from both parties that the case proceeds as scheduled and be heard this term. Continue Reading The United States Supreme Court Sends Virginia Transgender Bathroom Case Back to the 4th Circuit
In late December of 2016, the Department of Education’s Office for Civil Rights (OCR) issued information to school districts regarding how the use of restraint and seclusion may result in discrimination against qualified students with disabilities in violation of Federal laws that prohibit disability discrimination, including Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II). The guidance sets forth OCR’s interpretation of these laws and regulations. For more information about the Department’s best practices, please see the Department’s Restraint and Seclusion: Resource Document (May 15, 2012). The Resource Document recommended that school districts never use physical restraint or seclusion for disciplinary purposes; never use mechanical restraint; and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others.
What is the concern?
According to the Department’s Civil Rights Data Collection (CRDC), during the 2013-14 school year students with disabilities were subjected to mechanical and physical restraint and seclusion at rates that far exceeded their non-disabled peers. The existence of this disparity raises a question as to whether school districts are imposing restraint or seclusion in discriminatory ways. In addition, OCR continues to observe legal violations in investigations of schools’ use of restraint and/or seclusion for students with disabilities.
What is restraint?
In general, OCR uses the following definitions for mechanical restraint and physical restraint. Mechanical restraint refers to the use of any device or equipment to restrict a student’s freedom of movement. The term does not include devices implemented by trained school personnel, or utilized by a student that has been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as:
- Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports;
- Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;
- Restraints for medical immobilization; or
- Orthopedically prescribed devices that permit a student to participate in activities without risk of harm.
Physical restraint refers to a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort. Physical escort means a temporary touching or holding of the hand, wrist, arm, shoulder or back for the purpose of inducing a student who is acting out to walk to a safe location.
What is seclusion?
In general, OCR defines seclusion as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. It involves the monitored separation of the student in a non-locked setting and is implemented for the purpose of calming; it does not include a timeout, which is a behavior management technique that is part of an approved program.
What does Federal law require school districts to do for students with disabilities?
Section 504 requires that students with disabilities receive a free appropriate public education (FAPE). The Section 504 regulation defines FAPE as the provision of regular or special education and related aids and services that are designed to meet the individual needs of students with disabilities as adequately as the needs of students without disabilities are met. A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response, could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.
Can the use of restraint or seclusion deny a student’s receipt of Section 504 FAPE Services?
Yes. There are multiple ways in which the use of restraint or seclusion might deny FAPE which are outlined in The Business Case for Preventing and Reducing Restraint and Seclusion Use which was prepared for the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration. For example, the use of restraint or seclusion may have a traumatic impact on that student such that even if she were never again restrained or secluded, she might nevertheless have new academic or behavioral difficulties that, if not addressed promptly, could constitute a denial of FAPE. See National Center for Trauma-Informed Care and Alternatives to Seclusion and Restraint last updated October 26, 2015. Furthermore, the repeated use of restraint or seclusion in school could deny a student’s receipt of FAPE in another way. Consider a student with a disability who engages in behavior in response to which the school secludes him for extended periods and on multiple occasions. While secluded, the student does not receive educational instruction or services. Cumulatively, the school’s repeated use of seclusion with that student could result in the school’s failure to comply with the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting in which to receive those services and therefore may constitute a denial of FAPE as outlined in the 2016 Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities.
Does the parent or guardian of a student with a disability have a right to discuss the impact of restraint or seclusion on their child’s access to FAPE?
Yes. Section 504 requires that school districts establish and implement a system of procedural safeguards for parents or guardians to appeal district actions regarding the identification, evaluation, or educational placement of students with disabilities who need or are believed to need special education or related services. The school district must tell parents and guardians about this system, notify them of any evaluation or placement actions, allow them to examine their child’s records, afford them an impartial hearing with opportunity for parent or guardian participation and representation by counsel, and provide them a review procedure according to the 2016 U.S. Department of Education Office for Civil Rights Fact Sheet: Restraint and Seclusion of Students with Disabilities.
The education team at Berchem, Moses & Devlin, P.C. offers representation to school district clients across the State of Connecticut. Visit http://www.bmdlaw.com, or email us at email@example.com.