Restraint, Discipline, Discrimination?

GreatIdeasConvention2016
LearningLab
Restraint,Discipline,Discrimination?
MonaLincoln,Ed.D,Consultant
LauraO’Leary,J.D.FanningHarperMartinsonBrandt&Kutchin
1/6/16 Restraint, Discipline, Discrimina0on? Presented by Mona Lincoln, Ed.D and Laura O’Leary, J.D. www.FHMBK.com Roadmap for Presenta:on • Part one: The Issue • Part two: The Rules • Part three: The Tools www.FHMBK.com 1 The Issue: Discipline for Disabled Students •  Sam, an OHI elementary school student with ADHD and dyslexia consistently demonstrates aggressive behaviors during class :me. Sam has already been restrained three :mes, sent to the AP’s office two :mes, and received a three day out of school suspension. Today, Sam stabbed another student with a pencil during class. Sam has a BIP which has been in place for 2 months and which includes use of :me out in the corner of the class room. Sam’s primary teacher is 8 months pregnant. The principal has received complaints about Sam from half a dozen parents of other students in the same class. Sam had problems with aggression the prior year also. • What would you do? • Who would care about your response? www.FHMBK.com 2 1 1/6/16 The Issue: Discipline for Disabled Students Who Cares? – The federal government cares – The TEA cares – Disability advocacy groups care – Parents care www.FHMBK.com 3 Who Cares? The Federal Government Sam, a student with disabili:es, needs help managing his behavior, developing social skills, and learning self-­‐control. Sam has repeatedly been removed from the educa:onal environment and treated differently from other students in the class. The school’s interven:ons have not been successful. As a consequence, Sam and other students have been exposed to physical harm. – Should OCR inves0gate the incident? – Is the problem more widespread in the school district? www.FHMBK.com 4 Who Cares? The Federal Government – CRDC (Civil Rights Data Collec:on) •  2014 Data Snapshot –  Inves:ga:ons •  New Case Processing Manual –  Dear Colleague Leaers •  Non-­‐discriminatory administra:on of school discipline www.FHMBK.com 5 2 1/6/16 Who Cares? The TEA Sam has been subject to restraint during previous school years and more than once already during this school year. Sam may have been involved in more incidents of restraint than were reported. –  Have Sam’s restraint incidents been restricted to emergency situa0ons? – Have the campus administrators been no0fied about the restraint incidents? – Have Sam’s parents been no0fied about the restraint incidents? – Have school personnel been properly trained on the use of restraint? www.FHMBK.com 6 Who Cares? The TEA –  PEIMS Data Collec:on –  State Administra:ve Regula:ons www.FHMBK.com 7 Who Cares? Disability Advocacy Groups Sam is a young, disabled student, who has been singled out in class for humilia:on because of these disabili:es. Sam has suffered discrimina:on at the hands of those adults who should be there to help Sam learn and grow. Instead, Sam is learning nothing but violence and exclusion which makes Sam likely to become part of the school to prison pipeline as Sam gets older. The school district needs to change its policies and procedures and should be required to employ consultants to educate school personnel on the proper use of posi:ve behavioral interven:ons so that restraints and exclusion will not be necessary. – Should we encourage Sam’s parents to bring a claim? – Should we file a complaint with OCR? www.FHMBK.com 8 3 1/6/16 Who Cares? Disability Advocacy Groups –  Disability Rights Texas • 
• 
• 
• 
Access to student data Access to parent contact informa:on Ability to file complaints with OCR/DOJ Provides consulta:on services www.FHMBK.com 9 Who Cares? Parents Sam comes home from school every day complaining about how mean the other students are and how they are always trying to get Sam in trouble. That teacher has it out for Sam, probably because Sam’s teacher from last year told lies about how Sam is a troublemaker. Nobody at the school ever does anything to help and the situa:on keeps gehng worse. Other students are threatening Sam but only Sam gets punished. The teacher needs to punish the rest of the class and stop making Sam sit in the corner or leave the room. Sam s:ll has bruises from the last :me the teacher used restraints, and now Sam complains of stomach aches every Monday morning. Sam’s grades have goaen worse too. We have had enough! – Should we talk to a lawyer? www.FHMBK.com 10 Who Cares? Parents –  Informal Complaints –  Due Process Complaints –  Civil Rights Lawsuits •  Sec:on 504 •  Americans with Disabili:es Act www.FHMBK.com 11 4 1/6/16 The Rules –  IDEA –  Sec:on 504/ADA –  TEC/TAC –  District Policies www.FHMBK.com 12 The Rules: IDEA – IEP team must consider posi:ve behavioral supports and other strategies to address behavior that impedes the child’s, or other children’s, learning. (34 CFR §300.324(a)(2)(i)) – IEP team may address behavior in the IEP (34 CFR §300.320(a)(2)(i)) – IEP may include modifica:ons, teacher support, and related services necessary to achieve behavioral goals (34 CFR §300.320(a)(4)) – BIP can be included in the IEP www.FHMBK.com 13 The Rules: Sec:on 504/ADA – No otherwise qualified individual with a disability shall, solely by reason of her or his disability, be excluded from the par:cipa:on in, be denied the benefits of, or be subjected to discrimina:on under any program or ac:vity receiving Federal financial assistance. 29 U.S.C. § 794 – No qualified individual with a disability shall, by reason of such disability, be excluded from par:cipa:on in or be denied the benefits of the services, programs, or ac:vi:es of a public en:ty, or be subjected to discrimina:on. 42 U.S.C. § 12132 www.FHMBK.com 14 5 1/6/16 The Rules: Sec:on 504/ADA – Deliberate indifference standard • Actual knowledge • Response that was not clearly unreasonable – Administra:ve review standard • Knew or should have known • Resolve the issue • Prevent recurrence www.FHMBK.com 15 The Rules: Texas Educa:on Code – Only ARD commiaee may make placement decisions. –  No discipline that cons:tutes a change in placement unless ARD commiaee holds manifesta:on determina:on review. – Discipline must accord with federal laws requiring: • (1) func:onal behavioral assessments; • (2) posi:ve behavioral interven:ons, strategies, and supports; • (3) behavioral interven:on plans; and • (4) the manifesta:on determina:on review. – No placement in alterna:ve educa:on programs solely for educa:onal purposes. TEC § 37.004 www.FHMBK.com 16 The Rules: TEC and TAC – Restraint only in an emergency (serious physical harm to student or others or serious property destruc:on) • Reasonable force • Only while emergency con:nues • Proper training • No:fica:on to parent and campus administrator – Time out to regain self-­‐control • Unlocked, exit not barred • No use of physical force • If recurring, must be in IEP/BIP •  Proper training 19 TAC § 89.1053, TEC § 37.0021 www.FHMBK.com 17 6 1/6/16 The Rules: District Policies – TASB Policy FOF (Legal) •  All disciplinary ac:ons regarding students with disabili:es must be determined in accordance with 34 C.F.R. 300.101(a) and 300.530–
300.536; Educa:on Code Chapter 37, Subchapter A; and 19 Administra:ve Code 89.1053 (rela:ng to Procedures for Use of Restraint and Time-­‐Out). 19 TAC 89.1050(j) •  The placement of a student with a disability who receives special educa:on services may be made only by a duly cons:tuted ARD commiaee. Any disciplinary ac:on regarding the student shall be determined in accordance with federal law and regula:ons. Educa3on Code 37.004 www.FHMBK.com 18 The Tools –  Federal Agency Guidance –  Parental Involvement –  District/Campus Monitoring www.FHMBK.com 19 The Tools: Federal Agency Guidance –  Dear Colleague Leaers • Non-­‐discriminatory administra:on of school discipline –  Guiding Principals •  Climate and Preven:on •  Clear and Consistent Expecta:ons •  Monitoring and Self-­‐Assessment www.FHMBK.com 20 7 1/6/16 The Tools: Parental Involvement –  RtI • Is this happening with fidelity in your district? • How are parents involved? –  Proac:ve Communica:ons • Before school year with teachers and parents • Rou:ne and ongoing during the year? www.FHMBK.com 21 The Tools: District/Campus Monitoring –  PBIS • Training-­‐who, what, when? –  Data Review and Feedback • Who is reviewing? • What happens to the informa:on? – District/Campus Improvement Plans • How do goals rise to the level of inclusion? • Needs assessment for each campus? • Who monitors? How onen? www.FHMBK.com 22 If you have any ques0ons… Laura O’Leary loleary@;mbk.com 4849 Greenville Avenue Suite 1300 Dallas, TX 75206 214-­‐369-­‐1300 Mona Lincoln [email protected] 972-­‐948-­‐6280 www.FHMBK.com 8