By: Emma Freeburg, DRAZ Legal Intern (Summer 2021)*
The most recent blog post in this series went over the rules that apply to the use of restraint and seclusion techniques in Arizona schools. Today’s blog post provides complaint options for parents who are concerned that their child is being subjected to improper restraint and seclusion at school.
While A.R.S. § 15-105 itself does not include an enforcement mechanism, the Arizona Department of Education (ADE) is authorized under A.R.S. § 15-239 to enforce any law that applies to school districts. Despite having statutory authority to enforce education laws, ADE does not currently monitor or investigate complaints regarding schools’ compliance with the state’s restraint and seclusion law.
A recent Arizona District Court decision found that although A.R.S. § 15-239 does not authorize a private right of action to enforce all of the provisions laid out in A.R.S. § 15-105, parents may be able to file a lawsuit under this law if their child’s school fails to comply with the law’s reporting requirements for incidents of restraint or seclusion. If school personnel, the school, or the school district, do not follow the reporting requirements outlined in section (D)(1)-(2) of A.R.S. § 15-105, then parents can file a civil lawsuit and may be granted some type of relief, such as an order to provide notice of future incidents.
However, if a parent wishes to complain about when and how restraints and seclusion are being used, they must consider other avenues, such as:
- Requesting a reevaluation, functional behavioral assessment, or behavior intervention plan;
- Filing a complaint with the U.S. Department of Education’s Office for Civil Rights;
- Filing a police report;
- Using IDEA dispute resolution procedures to challenge denial of FAPE; and/or
- Filling a personal injury lawsuit.
Each of these options is discussed in more detail below.
Request a Reevaluation or an FBA and BIP
Often, when a student is frequently restrained or secluded, it means that the student may have a disability and should be evaluated for an IEP or 504 Plan if they do not already have one.
If the student already has an IEP or 504 Plan but is being excessively restrained/secluded, then their current IEP or 504 Plan is likely not appropriate and the student may need to be reevaluated or their plan may need to be adjusted.
Parents should consider the following self-advocacy steps when they receive frequent reports that their child is being restrained or secluded:
- If your child does not currently have an IEP or 504 Plan, request in writing an initial evaluation of your child for IDEA and/or 504 eligibility.
- If your child currently has an IEP or 504 Plan, but you do not believe the plan adequately addresses their needs:
- Request in writing an IEP or 504 Plan team meeting to discuss the restraint/seclusion used. Ask that the school personnel who used the techniques attend the meeting so the team can discuss what student behaviors are leading to the use of these techniques and can brainstorm other methods of correcting the behaviors.
- Request in writing that your child be formally reevaluated so the team can rely on updated data when making decisions about how to serve your child.
- Request a Functional Behavioral Assessment (FBA), which aims to identify the underlying function of a problem behavior (e.g., the function of throwing objects might be to gain adult and peer attention).
- Request the development and implementation of a Behavioral Intervention Plan (BIP), which is a plan to try and teach your child an appropriate replacement behavior (e.g., raising your hand) that serves the same function (e.g., getting attention) that the negative behavior (e.g., throwing objects) served. Once your child learns the replacement behavior, the frequency of the negative behavior should decrease, rendering the use of restraint and seclusion techniques unnecessary.
File an OCR Complaint
The U.S. Department of Education’s Office for Civil Rights (OCR) accepts complaints that allege the inappropriate use of restraint and seclusion has resulted in a discriminatory denial of a Free Appropriate Public Education (FAPE) for your child. Frequent use of restraint or seclusion may mean that your child is being denied access to learning while they are restrained or secluded. Complaints can cite to this OCR guidance which states that “the use of restraint and seclusion techniques may result in discrimination against qualified student with disabilities in violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II).” It is important to note that there is a 180-day limitation period for filing these complaints. This means you must file no later than 180 days from the date of the discrimination. To file an OCR complaint, visit this site.
Below are some examples of OCR’s past investigations into excessive restraint and seclusion in Arizona schools:
- Parker Unified School District (2021)
- OCR Findings Letter
- Resolution Agreement
- Paradise Valley Unified School District (2020)
- Deer Valley Unified School District (2014)
In addition to OCR, the U.S. Department of Justice’s Civil Rights Division also investigates systemic violations of civil rights laws by schools. Sometimes, these investigations can yield positive results, like this settlement agreement reached with a Florida school district that routinely excluded students with disabilities through unnecessary classroom removals.
File a Police Report
The Arizona Department of Child Safety (DCS) does not investigate reports of abuse or neglect of children that take place at school. There was a bill proposed in 2021, HB 2107, that would have allowed DCS to investigate these types of reports, but the bill died in committee. Thus, if you suspect your child has been abused or neglected at school, at this time making a report to DCS will be ineffective. Instead, you should consider contacting the police and filing a police report.
In order to aid with the police investigation, consider:
- Taking photos of any injuries you notice on your child; and
- Taking your child to the doctor for a physical examination to document their injuries.
Follow IDEA Dispute Resolution Procedures
Under Part B of IDEA, parents can file a due process complaint for a dispute related to “… the provision of a free appropriate public education [FAPE].” [1] Parents of students who are excessively restrained or secluded can consider filing a due process complaint alleging that the improper use of restraint or seclusion techniques or the failure to provide or follow an appropriate FBA or BIP effectively denied their child FAPE.
Arguing a due process complaint is time-consuming, and it can be expensive if you hire an attorney. Although you are not required to hire an attorney to represent you and your child at a hearing, the school will most likely be represented by an attorney, and your chances of success at hearing are higher if you are represented by an attorney.
It is important to note that there is a two-year statute of limitations on these complaints. For information on how to file a due process complaint, see this blog post.
File a Personal Injury Lawsuit
Another option to address abuse and neglect is to file a personal injury lawsuit on behalf of your child against the school personnel, school, or school district. Before filing a lawsuit against a public entity, a “Notice of Claim” must be filed within 180 days of the injury. [2]
DRAZ does not practice in the area of personal injury law, and if you are considering filing a personal injury lawsuit, we recommend consulting with and/or retaining a personal injury lawyer to represent you. To obtain counsel, you can use the county bar association lawyer referral service:
- To access Maricopa County Bar Association’s Lawyer Referral Service, visit this site.
- To access Pima County Bar Association’s Lawyer Referral Service, visit this site.
While there are many avenues you might take to advocate for your child, it is important in all circumstances that you are vigilant and pay attention to timelines. In our next post, we will discuss how to be proactive to avoid discipline in the first place whenever possible.
*Emma Freeburg is a law student at the Sandra Day O’Connor College of Law at Arizona State University. Emma completed a legal internship with DRAZ during the summer of 2021. This blog post has been reviewed by DRAZ Legal Director Rose Daly-Rooney and DRAZ Education Team Managing Attorney Amanda Glass.
