Home » React and Discuss – Special Needs Advocacy in Action
Sometimes, when we hear about a story in the news we are so disgusted and outraged that our emotions lead all discussion. When that happens, I prefer to let the subject sit before blogging about it.
Unfortunately I have been so upset about this incident that I have literally faced the dreaded mental ‘blank’ while trying to write anything else. So now, I am going to write about it, and I’ll probably show my academic/research geek-lover side a bit here.
I’m leaving the links to original news stories at the bottom of the post … yep, all the way down the page. Here is the recap, gleaned first from news reports and second from a copy of the legal decision of the appeals court itself (I read all the big words and everything).
The court documents state that duck tape was used to bind socks to the student’s hands.
The court documents state that the cords on the chair were used to secure the legs because the student was combative, or aggressive, not because he needed the bindings for positional reasons.
The court documents further state that the chair was tipped over backwards as the child was restrained within it. According to the aide, the child laughed.
–These are the facts from the legal decision.
The teacher and her aide had been dealing with increased behavior in this student, who reportedly has severe autism who is also nonverbal. As the student’s behaviors escalated, they changed their reaction to the child’s self-harming behavior.
Another classroom aide complained to the principal, who in turn asked the teacher to explain what had happened. The teacher and aide were suspended without pay, CPS was called, and charges were brought against both teacher and aide for confinement, batter and neglect of a dependent. This happened last Spring.
On October 6, the charges against the teacher were dismissed by the Indiana Court of Appeals after an appeal was filed on the teacher’s behalf, citing her actions did fall under qualified immunity. The judgement stated that qualified immunity exists to protect a teacher who takes disciplinary action against a student in their care. In the panel’s view, the teacher acted in good faith and reacted in a reasonable way.”
Let’s be clear here …
The appellate court weren’t judging if the teacher acted appropriately in the classroom setting, not exactly. What they were judging was whether the teacher’s actions should have been protected because the teacher was acting “in loco parentis” – in absence of the parent. They used the wording of that loophole to dismiss the charges against the teacher.
You don’t want me to argue why I disagree with that decision, but let’s just say I disagree strongly. An argument about the legal merits of the decision would take too long, in a blog post, to go into. Let’s just say that we really should define what is and is not considered “reasonable” and then determine if the criteria are the same regardless of who has made the decision.
Without changing the law, the specific section of qualified immunity in this case, and barring another appeal, let’s put the legal decision to the side for a minute. Bear with me.
There is a larger issue here.
This situation concerns a topic known as restraint (sometimes restraint and seclusion). Let’s be honest here – this was restraint, of a child who wasn’t able to verbally defend himself. This is a child who should have been under the protections of an IEP – individualized education plan. If the behaviors had been escalating for a while, there should have been a formal behavior intervention plan (BIP) in place after a formal independent behavior assessment took place.
Just because the student had severe disabilities doesn’t mean that their behavior excuses the teacher from following what is standard protocol in these circumstances. In fact, the student’s disabilities should have made the process a protected and documented procedure.
The Indiana Department of Education considers restraint and seclusion of special needs children a circumstance that must be handled appropriately, with many rules being followed. What happened here … doesn’t begin to follow those rules. The main problem, though, is that the IDOE encourages the proper use and adoption of a Restraint and Seclusion plan, but that isn’t a requirement spelled out in State or Federal Law … yet.
More on that in a minute.
The crux of the matter:
Just because it wasn’t “against the law” doesn’t mean it is the right thing for the teacher to have done.
There are supposed to be other protections in place for a reason. This child should have been further protected under an IEP and a BIP.
I am concerned about the school’s improper handling of a child who should have been under the protection of an IEP and Article 7 of the Indiana Code. Where was this child’s IEP – and was the school receiving Federal monies for this child and still not providing proper training for its’ staff members?
The parents haven’t spoken out. The school and district aren’t speaking either. At this point, no one knows for certain any facts beyond those already published in a public forum or in court documents.
But it leads to a couple advocacy-related initiatives I would like to cover here at the Cafe:
Restraint and Seclusion, in regards to special needs children – do you know what your rights are? Do you understand what is at stake and know about the movements to coordinate State and Federal legislation that would further define protections for all students in the public school setting?
What do you understand about your child’s IEP process? Would you know the steps to take if something like this happened to your child at school?
Do you know the steps to take if you disagree with the school regarding your special needs child? While laws vary by state, Federal guidelines under IDEA legislation mean that every state has to follow some common guidelines.
I’m going to put my advocate hat on to answer these questions, and I plan to reach out to other professionals to help me out.
How about we become involved in special needs advocacy and understand how to protect our kids?
The original story in the news: