Running Header: CHAINS OF AUTISM

Chains of Autism: Legal Research of Seclusion and Restraint of Autistic Children

Sierra E. Yonker
First Colonial High School
Legal Studies Academy

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Abstract
The act of seclusion and restraint on autistic children is becoming a pressing issue in the
United States. Some may ask what defines a child as being autistic. Typically, they are
children with a lack of brain development. The educational programs that these children
are placed in allow seclusion and restraint in their behavioral intervention plan (BIP).
With it being integrated into their programs it is easy to find statistics on how often
autistic children or special education children are secluded and restrained. When
comparing these to other states such as California or Florida, Virginia has the highest of
the three. When looking at the laws in Virginia and comparing them to other states it is
clear what is different. As far as how each state is going about handling the issue.
Especially when looking at cases that didnt get the chance to go to court or actual cases
that have, the difference is clearly seen.

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Chains of Autism: Legal Research on Seclusion and Restraint of Autistic Children

The act of seclusion and restraint is a pressing issue among the special education
world, particularly concerning students that are autistic. Autism, or Autism spectrum
disorder (ASD), is a lack of brain development. Children with ASD typically have
physical health issues, difficulties in motor coordination, and attention. Seclusion and
restraint is used to calm down students when they are having a break down. The duration
of the restraining should only be the length of the break down. Although, typically the
duration can last the length of the initial break down, in some cases it is used improperly
and will last hours. In some cases this can be defined as corporal punishment, which is
defined as, Infliction of, or causing the infliction of physical pain on a student as means
of discipline (Riechhardt Esquire, 2015). Using corporal punishment and seclusion on
special education students threatens their right to an education by restraining and
isolating them in their classrooms.
What is Autism?
Autism is a complex disorder of brain development that is characterized in to four
groups: difficulties in social interaction, verbal, nonverbal, communication and repetitive
behaviors ("What Is Autism?" 2015). It can be associated with intellect disability,
difficulties in motor coordination and attention and physical health issues such as sleep
and gastrointestinal disturbances. One in 68 American children have autism. They have
recently discovered that it is four to five times more common in boys than girls. An
estimated one out of 42 boys and one in a 189 girls are diagnosed with autism in the
United States ("What Is Autism?" 2015). Autism is related to a number of rare gene

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changes and mutations. It is most commonly caused by a combination of autism risk

genes and environmental factors influencing early brain development.
Educational Programs
There are three educational programs with in special education: the individualized
education program (IEP), 504 plans, and the behavioral intervention plan (BIP). The
individualized education program is a program that is developed to ensure that a student
with disabilities defined under the law receives specialized instruction and services
("What Is the Difference between an IEP and a 504 Plan?" 2015). A 504 Plan is A plan
developed to ensure that a child who has a disability identified under the lawreceives
accommodations that will ensure their academic success and access to the learning
environment ("What Is the Difference between an IEP and a 504 Plan?" 2015). The
behavioral intervention plan lays out how the IEP team will improve difficult behavior
that is inhibiting a childs academic success(Webster, 2015). This is when a child cant
focus, doesnt complete the work given to them, or they are constantly in trouble
(Webster, 2015). None of these plans prohibit the use of seclusion and restraint, but it has
been argued that these programs should prohibit the use of such techniques (Riechhardt
Esquire, 2015). These programs are meant to improve and help children; they should
offer positive behavioral supports and alternatives. One of the major issues is the
increased exposure of school staff to liability and child abuse allegations for willful
misconduct (Riechhardt Esquire, 2015). Allegations of child abuse are one of the leading
causes in school related cases(Nishimura, 2011).

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Statistics
In the 2011-2012 school year 12% of the population were students with
disabilities(U.S. Department of Education Office for Civil Rights, 2014). Of that 12% of
students 75% of them were physically restrained at school. 58% of these students were
placed in seclusion or involuntary confinement. Some 25% were referred to law
enforcement or subjected to school related arrest (seclusion). It has also been proven that
students with disabilities get suspended from school more than twice the rate of students
without disabilities, 13% verses 6% (Riechhardt Esquire, 2015) (U.S. Department Of
Education Office For Civil Rights, 2014).
Other States
California. In the state of California under the California Education Code,
Physically restraining special education students or isolating them in rooms they cant
leave, known as seclusion, are to be used only as measures of last resort (Adams,
2015). California, much like other states, has noticed an increase in cases where the
practices of seclusion and restraint are being miss used. Although they have yet to take
the option away from special education teachers and the school or programs, laws are
becoming stricter for the benefit of the students. California has seen a decrease in these
types of cases since enacting this code. It is no longer in their BIP programs, unless
extremely necessary. Such as when a child may harm him or herself or anyone else for
any reason, is the only time when seclusion and restraint would be used under those
circumstances (Adams, 2015).
Florida. As a result of 2010s state data for seclusion and restraint, Floridas
Orange County school district eliminated the use of seclusion and reduced the use of

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restraint. Florida advocates said, This data collection requirement is leading to changes
throughout the state because the state Department of Education posts data about restraint
usage on a website and these postings have caused other counties to reevaluate their
policies (Harkin, 2014). They have created legislation similar to California, but instead
of the whole state following it, it is only Orange County for the time being while they get
the rest of the state on board. Although when collecting the data they ask teachers and
school district officials, but what sets them apart from every other state is that they ask
the students that are in these special education programs. So that they are able to see if
the data matches up with what the students responses are when asked about seclusion and
restraint. Many of the parents enjoy this benefit because they feel like they are doing
everything they can to come up with a well-rounded solution. Finally, they have decided
that a committee will meet twice a year to access the data collection as well as to see
what the next steps are (Harkin, 2014).
Laws
Virginia code. Section 22.1-2.98.3 is titled Students with Autism Spectrum
Disorders; training required of personnel. This Virginia Code states, By September 1,
2014, each school board shall ensure that aides assigned to work with a teacher who has
primary oversight of students with autism spectrum disorders receive training in student
behavior management within 60 days of assigned to such responsibility...(Reuters,
2015).This law applies because this makes it so that teachers that will be teaching or
aiding a teacher have proper training. This means that they will know the proper methods
to use when a child has a break down and asses the situation with the up most confidence.

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Individuals with disabilities education act. The Individuals with Disabilities

Education Act (IDEA), public law 101-476, states, The term children with disabilities
means children with mental retardation, hearing impairments including deafness, speech
or language impairments, visual impairments including blindness, serious emotional
disturbance, orthopedic impairments, autism, traumatic brain injury, other health
impairments, or learning disabilities(Public law, 1990). This is a very important law for
children with disabilities because it shows the characteristics of a child with disabilities in
the terms of law. Not only does it define a child with disabilities, but also it sets the
standards for special education throughout every state in the United States. It gives
children with special needs the opportunity to receive a well-rounded education like
every other child.
Virginia code. Section 22.1-279.1:1 the use of seclusion and restraint in public
schools; Board of Education regulations states,
The Board shall adopt regulations on the use of seclusion and restraint in
public elementary and secondary schools in the Commonwealth that (i) are
consistent with its Guidelines for the Development of Policies and
Procedures for Managing Student Behavior in Emergency Situations and the
Fifteen Principles contained in the U.S. Department of Education's Restraint
and Seclusion: Resource Document; (ii) include definitions, criteria for use,
restrictions for use, training requirements, notification requirements,
reporting requirements, and follow-up requirements; and (iii) address
distinctions, including distinctions in emotional and physical development,
between (a) the general student population and the special education student

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population and (b) elementary school students and secondary school students
(Code of Virginia , 2015).
This law shows how seclusion and restraint can be used on children and how
training for such use.
Corporal punishment. Corporal punishment is prohibited by the statute of
Virginia. In other words the Virginia code section 221-279.1, is defined as The
infliction of, or causing the infliction of, physical pain on a student as means of
discipline(Riechhardt Esquire, 2015). Corporal punishment shall not apply in
certain circumstances:
1.) The use of incidental, minor or reasonable physical contact or other
actions designed to maintain order and control;
2.) The use of reasonable and necessary force to quell a disturbance or
remove a student from the scene of a disturbance which threatens physical
injury to persons or damage of property;
3.) The use of reasonable and necessary force to prevent a student from
inflicting physical harm on himself:
4.) The use of reasonable and necessary force for self defense or the
defense of others:
5.) The use of reasonable and necessary force to obtain possession of
weapons or other dangerous objects or controlled substances or
paraphernalia which are upon the person of the student or within his
control(Riechhardt Esquire, 2015).

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Corporal punishment is prohibited, although it is still used in some

circumstances to deal with special education students. Seclusion and restraint is
equal to the definition of corporal punishment(Weigl, Personal communication,
November 19, 2015).
The Fourth Amendment. The United States Constitution states in
Amendment IV that, The right of the people to be secure in their personsagainst
unreasonable searches and seizures, shall not be violated(U.S. const. amend. IV)
("Fourth Amendment," 2015). This amendment is crucial in cases dealing with
seclusion of special education students. The Fourth Amendment protects their rights
against unlawfully being seized.
The Fourteenth Amendment. The fourteenth amendment from the United
States Constitution states, All persons bornin the united statesare citizens of
the United States and of the state wherein they residenor shall any person of life,
liberty, or property, without due process of law; nor deny to any person within
jurisdiction the equal protection of the laws(U.S. Const. amend. XIV)("14th
Amendment," 2015). The Fourteenth Amendment protects almost all of our rights
as United States citizens. We have the right to due process and no one should be
allowed to take that away from us, it is our natural born right at Americans.
Cases
Events That Have Occurred
Connecticut Public Schools. In Connecticut Public Schools multiple grade
school children with disabilities were isolated in closet sized scream rooms with
concrete walls. Children complained about hearing screaming and cries coming from the

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rooms that the special education children were placed in from the rooms next door.
Custodians reported that they had to clean up blood and urine from the floors and walls.
The school took corrective actions as a result; the school no longer employs the teacher.
The state law still allows seclusion to be used for any reason because they didnt find that
the problem was with seclusion it was the practices that were occurring due to the teacher
(Harkin, 2014).
A non-verbal, seven-year-old girl was locked in a cinderblock room on multiple
occasions. The girls mother never consented to this practice and was shocked to find that
use of the room was mentioned in her daughters IEP. She stated that while she may have
agreed to try brief time-outs, nobody showed her or her husband the seclusion room to
be used or explained the kind of open-ended isolation that the school used. The mother
reports that the school continued to seclude the girl after she complained, claiming that it
was beneficial for her daughters condition. Connecticut advocates reported that many
parents in the state report being left out of IEP discussions, despite the fact that IDEA
requires parents to be part of the IEP team (Adams, 2015).
Florida Public Schools. A teen in Florida was repeatedly secluded and restrained
using dangerous, painful, facedown restraints but could not tell his parents because of his
disabilities and limited ability to communicate. His parents stated that the school never
notified them about these incidents and that they only discovered what had occurred
when his emotional outbursts became so debilitating that he had to be removed from the
school. When the parents sought the logs that the school used to document seclusion and
restraints, the logs were incomplete or missing entirely. The parents attorney believes
that without full documentation of all the incidents, it was impossible to substantiate the

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parents claims that the school had been indifferent to their childs suffering (Adams,
2015).
Iowa Public Schools. In Iowa public schools, an eight year old girl with autism
and other disabilities was sent to a converted storage area under a staircase to calm
aggression about 100 times between September and December 2005, as many as 5 times
in a single day. At other times, multiple adults forcibly restrained the child to quiet her.
The school district claimed that it had used established educational principles to
address the childs disabilities. An administrative law judge found that as a result of
extensive use of seclusion, the school failed to provide the child with free appropriate
public education (FAPE), but the school district was not required to change its policies.
A new state law was subsequently enacted but Iowa still allows seclusion for educational
disruptions. Thus, tantrums like the type exhibited by this child might still result in
seclusion (Harkin, 2014).
Minnesota Public Schools. In Minnesota an eight-year-old girl with
communication, attention, and hyperactivity disorders was reportedly secluded 44 times
in one school year, despite objections from the mother and an independent behavior
consultant. During one incident, the teacher forced the girl in to a seclusion room while
she was on her way to the bathroom, causing the child to urinate on herself.
Administrative law judge dismissed claim because the parents failed to exhaust IDEAs
administrative hearing process when she removed the child to a private school. The
Eighth Circuit up held that decision, effectively ruling that children must remain in the
environment where seclusion and restraints are being practiced in order to successfully

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demonstrate that they are being denied free appropriate public education (FAPE)(CN v.
Willmar Public Schools)(Harkin, 2014).
New York Public Schools. In New York, parents discovered their fifteen-year-old
son alone and crying in a locked seclusion room at his school. The teen had extensive
developmental disabilities, including impaired language and communication skills. His
only way of telling his parents that something was wrong was to repeatedly say no blue
room, (Harkin, 2014). They later realized that this was a reference to the seclusion
rooms blue padded walls. Even though court documents show the parents sharply
dispute that they ever agreed to the use of such a practice, school records indicated that
they had been informed. Further, the parents believed that their son was secluded many
more times than acknowledged by the school, but no documentation was found to support
that assertion (Harkin, 2014).Their case never made it to court due to them not having
enough evidence to prove anything.
Orange Unified School District. In March of 2013, a fifth grader named Andrew
Ashline experienced the worst of the worst. He is a nonverbal boy with autism, epilepsy
and an IQ of 47. One day while he was at school he wouldnt stop touching the wheel of
his special stroller. His teacher repeatedly told him to stop, but he continued as if she had
said nothing. The teacher then pulled him out of his stroller, with the help of aide, and
force walked Andrew all Palmyra Elementary School. Once at the school Andrew was
placed face down on the floor for twelve minutes. The parents of Andrew Ashline filed
lawsuits against said teachers for their actions towards their son and faced charges
(Adams, 2015).
Cases

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C.N. v. Willmar Public Schools. C.N. was born in March 1998 and was tested
for Autism Spectrum Disorder (ASD). The Doctors said she didnt qualify for ASD, but
she does have a communications disorder and attentional and hyperactivity problems.
C.N. was placed in Willmar Public Schools individual education program (IEP), which
included a behavior intervention plan (BIP). The BIP authorized the use of restraint holds
and seclusion when C.N. exhibited various target behaviors. After being placed in the IEP
with BIP C.N. still exhibited these target behaviors. J.N. the mother of C.N. said that a
professional should evaluate her. Tim Ardoff, an evaluator from Southern Minnesota
Community Support Services, suggested that restraint holds and seclusion should not be
apart of C.N.s BIP. After he suggest against these practices, they continued to use them
on C.N. because the IEP authorized controlled procedures. The defendant, Lisa Van Der
Heiden, was C.N.s special education teacher. Van Der Heiden used the control
procedures, restraint and seclusion, listed in C.N.s BIP, and recorded the incidents in
behavioral and communication logs she kept for her students. J.N. alleges
That during C.N.s time under her care, Van Der Heiden used those techniques
improperly and excessively and also mistreated C.N. For example, Van Der Heiden
allegedly made C.N. sit at a thinking desk and hold a physical posture for a
specific time, or else face restraint and seclusion. Van Der Heiden also allegedly
yelled and shouted at C.N., demeaned and belittled C.N., once pulled C.N.s hair
when she would not hold a posture at the thinking desk and once denied C.N. use
of the restroom causing an accident. C.N. also reported to J.N. that Van Der Heiden
choked her and that the restraint hurt he very much(CN v. Willmar Public
Schools).

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In the 2006-07 school year Van Der Heiden had been reported to the Minnesota
Department of Educations (MDE) Maltreatment of Minors Division for maltreatment of
C.N. as well as other students. They began an investigation on Van Der Heiden for the
maltreatment of C.N. The MDE investigations concluded Van Der Heiden had violated
C.N.s rights as a child with disabilities and maltreated C.N. by denying her access to the
restroom. They decided that it was a lapse in judgment, thus Van Der Heiden was never
disciplined for her actions. She returned to teaching at the school on October 2, 2006, and
remained there until October 6, 2006 from there on she had no contact with C.N. J.N. was
not notified that Van Der Heiden had returned to the school, and felt that she should have
been notified when she had asked to be. Even though she was told that the District
Superintendent, Kathryn Leedom, had no obligation to provide that information to her. At
this point J.N. transferred her daughter to a private school, St. Johns.
At this point she filed a complaint with the MDE, challenging the adequacy of the
educational services. The Administrative Law Judge granted the districts motion to
dismiss the case, due to the fact that C.N. was no longer enrolled in the districts schools.
J.N. then went to federal and state claims against the district. Asserted federal claims
under the Individuals with Disabilities Act (IDEA), Section 504 of the Rehabilitation Act
and violations of the fourth and fourteenth amendments. Due to the failure of J.N. to
claim these matters before transferring her daughter to private school, all allegations for
dismissed(CN v. Willmar Public Schools).
Conclusion. Using corporal punishment and seclusion on special education
students threatens their right to an education by restraining and isolating them in their
classrooms. Restraint and seclusion are practices that are miss used on a daily basis. It

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physically harms special education students mentally and physically, but no one can be
held accountable for it. That is because the programs that these children are state that they
are allowed to use such practices when they behave a certain way protect them. A lot of
these cases arent put out for the public to know because the schools cover it up, or
prevent it from going public. Seclusion and restraint laws and programs need to be
changed for the sake of the children.

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