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Full Appeals Court to Hear Special Education Seclusion Case

A federal appeals court in San Francisco is set to hear a special education case on Dec. 15 involving the use of seclusion in school. It's a case with powerful entities supporting each side.

The facts of the case: D.P., then a 7-year-old boy with with autism, attended the 8,600-student Peninsula School District in Gig Harbor, Wash., in 2004. As specified in his individualized education program, D.P. could be placed in what the district called a "safe room" to control his behavior.

There's some dispute between D.P.'s parents and the school district as to what was agreed to—locked or unlocked door, covered or uncovered window in the door, adult supervision at all times or not—but all agree that D.P. was placed in the five-foot-by-six-foot room on several occasions and would remove his clothes and urinate or defecate. He also became anxious and started to regress academically.

D.P's parents told the school they didn't want their son secluded in the room. His teacher contended that it was an appropriate intervention for his classroom behavior. The parents eventually had their son placed in another school in the district, but they were still unhappy with the services he was getting there. Eventually, they pulled their son out of the district, and he is being homeschooled.

In December 2005, D.P.'s parents filed a lawsuit against the district, saying that the use of the seclusion room traumatized their son and caused him academic setbacks. The district countered, saying that the parents did not exhaust all their remedies available under IDEA before filing suit. A three-judge panel agreed with the district, saying, essentially, that these parents should have sought a due process hearing, because the use of the "safe room" was an educational strategy and included in the child's IEP.

One judge dissented, saying that the use of the room could serve "no legitimate educational purpose," and was intended as punishment.

My colleague, Mark Walsh, wrote about this case, Payne v. Peninsula, when the panel released its decision in March. The decision of the three-judge panel is also online.

D.P.'s parents have appealed that decision, and the case will now be heard before the full Ninth Circuit Court of Appeals.

The Justice Department has filed a friend-of-the-court brief, saying that these parents are right—the case involves the possibility of unconstitutional abuse, not a violation of the IDEA. The three-judge panel's decision "transforms the IDEA—a statute meant to advance the rights of students with disabilities—into a limitation on those students' rights as compared with those of students without disabilities, who may allege the same unconstitutional conduct in court without pursuing unnecessary administrative process."

The National School Boards Association agrees that administrative remedies should be exhausted first before disputes wind up in court. In its friend-of-the-court brief siding with the district, it argues that less-formal processes are essential to resolving cases quickly and in a less costly manner to districts. The NSBA also notes that isolation is an "aversive intervention special education strategy" permitted under Washington state law.

"Where allegations of psychological harm have an educational source and adverse educational consequences, educational agencies must first be given the opportunity to right the wrong," the brief says.

So which side should win this argument: The parents, who say that the seclusion room was not educational, or the school district, which contends the parents had other ways to address this problem?

As a postscript: About a month ago, I wrote about a bill pending in Congress that would severely restrict the use of restraints and seclusion, though some students could still be subject to them if they had a history of dangerous behavior. That bill, however, is all but dead.

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