Three Things to Know About ED’s New Focus on Restraint and Seclusion

Most changes we’ve seen from the U.S. Department of Education (Department) these past two-and-a-half years have dealt with sex, gender, race, color, and national origin—not a disability—and most have reduced federal oversight, not expanded it. The majority of the cases the Department’s Office for Civil Rights (OCR) handles, however, involve disability discrimination, and enforcement of such cases has remained strong historically even during Republican administrations. In a continuation of that trend, the Department announced an initiative earlier this month that likely will increase federal oversight over restraint and seclusion of students with disabilities in schools. The Department identified three means of effectuating its new initiative: OCR compliance reviews, “CRDC” data collection, and “technical assistance.” What do these three components mean for public schools? As discussed after the jump, schools should expect to see a rise in OCR enforcement in this area. Because OCR investigations can be lengthy and costly, schools may wish to evaluate their data on the use of restraint and seclusion to proactively address any concerns.

On January 17, 2019, the Department announced an initiative “to address the possible inappropriate use of restraint and seclusion in our nation’s schools.” The initiative will be overseen by OCR and the Department’s Office of Special Education and Rehabilitative Services (OSERS) and will include both proactive “technical assistance” by OCR and OSERS as well as “strengthen[ed] enforcement activities” by OCR. Specifically, the three components of the initiative are:

1. Compliance Reviews. Most of OCR’s investigations result from complaints filed by students, parents, and other members of a school community, but OCR also has the authority to choose its own targets for investigation through compliance reviews. Compliance reviews are often broader in scope and longer in duration than investigations based on individual complaints. Although OCR could always open a compliance review with respect to restraint and seclusion, its announcement earlier this month suggests that it will begin actively seeking to open cases in school districts it believes are using restraint and seclusion in a discriminatory manner.
2. CRDC Data Collection. OCR sometimes relies on media reports and other informal evidence of concerns when opening compliance reviews, but it also likely will identify school districts for reviews through the Civil Rights Data Collection (CRDC) data that schools are required to submit to OCR every other school year. Specifically, OCR is likely to look for data showing that schools use restraint and seclusion more frequently for students with disabilities than for similarly-situated students who do not have disabilities. Although data disparities alone do not prove discrimination, a disparity in the use of restraint and seclusion among students with disabilities can raise a question of whether the school district is imposing restraint or seclusion in a discriminatory manner. The Department also announced that it will conduct “data quality reviews” of CRDC data to ensure that schools are providing accurate restraint and seclusion data. The clear takeaway from these announcements is that OCR will be scrutinizing CRDC data even more than it has in the past, and that school districts should consider both the accuracy of the data provided as well as what disparities the data may suggest.
3. Support for Recipients. The Department also announced that OCR and OSERS will begin to provide technical assistance (TA) to schools on restraint and seclusion. TA can involve public materials such as guidance, webinars, and conferences by OCR and OSERS, but it can also be obtained by contacting OCR directly for advice or assistance. Schools are often hesitant to identify concerns to OCR directly, fearing OCR might open an investigation, but one positive takeaway from the Department’s announcement is that more materials may soon be available for schools, either independently or with their Board attorney, to address potential compliance issues without fear of OCR involvement.

In summary, school districts should be prepared for an uptick in enforcement with respect to restraint and seclusion, even where no individual complaint has been filed by a parent or student. OCR investigations are notoriously long, with compliance reviews in particular often taking years and requiring schools to submit multiple rounds of often burdensome data for OCR review. As with web accessibility issues, it can often be more cost-effective for school districts to proactively audit and assess disability compliance rather than waiting for an OCR complaint or compliance review.