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Virginia Regulatory Town Hall
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Department of Education
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State Board of Education
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[under development] Regulations Governing the Use of Seclusion and Restraint in Public Elementary and Secondary Schools in Virginia [8 VAC 20 ‑ 750]
Action Promulgating new regulation governing seclusion & restraint in public elementary & secondary schools
Stage Proposed
Comment Period Ends 4/19/2019
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4/19/19  8:41 pm
Commenter: Advocating 4 Kids, Inc and NAPSE

Restraints and Seclusion
 

Public Comments on Restraints & Seclusion

As the founder of Advocating 4 Kids, Inc, located in the Tidewater area of Virginia and Board President of the National Allies of Parents in Special Education NAPSE a national nonprofit organizations whose  purpose is to ensure that underserved populations voices are heard and respected, in all aspects of the special education process, I write as a concerned Advocate.

Virginia does not have a proud history regarding its treatment of Black students in public schools. Virginia fought Brown vs. the Board of education decision to integrate public schools with mass resistance. This resistance included Virginia maintaining a legally sanctioned racial caste system, ensuring inferior educational opportunities for Black students. 

Without comprehensive safeguards against restraint and seclusion, every student in Virginia will be at risk of being subjected to these dangerous and abusive practices. Of concern is how these psychologically damaging practices are disproportionately used on students with disabilities and Black and Brown students.  
 

In 2016, the Department of Education released figures that showed:

Though students with disabilities make up 12% of all public school students, they account for 67% of students subjected to restraint or seclusion.
African American students account for just 21 percent of all students with disabilities, though they represent 44 percent of instances of mechanical restraint in schools.
While Hispanic students represent 24 percent of students without disabilities, they are a full 42 percent of students without disabilities who are subject to seclusion.
The disproportionate use of these techniques on students with disabilities and students of color violates their right to nondiscrimination in accessing education.

I am concerned for and speaking to, the impact the proposed regulations on restraints and seclusion will have on Black and Brown students and those with disabilities. Though I am against any and all use of restraints and seclusion, I submit my comment below for consideration. 

1: Restore language explicitly prohibiting prone restraints. Relevant section: Proposed 8VAC20-750-30 

African American students with disabilities will be placed at a greater risk than other groupings of students with the use of prone restraints. Prone restraints restrict movement and breathing and can and have caused the death of a student. Please add clear language that prohibits the use of prone restraints.
 

2: Clarify that restraint and seclusion may be used only when necessary because of an imminent threat of serious physical harm to self or others. Relevant section: Proposed 8VAC20-750-40

Remove the allowance for the use of restraint or seclusion to “obtain possession of controlled substances or paraphernalia upon the person of the student or within the student’s control” (proposed 8VAC20-750-40(B)(4)), authorizes the use of restraint or seclusion in circumstances where the student’s behavior poses no imminent danger of serious physical harm to anyone. This does not meet the spirit of the Fifteen Principles by the U.S. Department of education. Additionally, students of color are already disproportionately disciplined at higher rates then all other subgroups, the lack of clear language for when restraints can be used put them at greater risk for being restrained for behaviors other than “imminent threat”.Please limit the use of restraints and seclusion to situations when there is an imminent threat of serious physical harm to self or others.

3: 8 VAC 20-750-60 E. Student Debriefing.
Add language that requires the student debriefing to include a mental health professional trained in the use of informed trauma practices. As the regulation is currently written there is no therapeutic value to the debriefing session. Having a student speak with a  principal or their designee to discuss how she or he can use other behaviors after being restrained or secluded will further traumatize the student. Require the educators to identify what changes need to be made to the student's program with input from the parent to prevent further use of restraint and seclusion.

4: 8 VAC 20-750-100. Training. 

Add language that requires school divisions to provide continuous training to prevent, identify, reduce, and eliminate disparities for Black and Brown students and students with disabilities who are restrained and secluded.

In 2009, U.S. Secretary of Education Arne Duncan wrote to state superintendents about the “abusive and potentially deadly misapplication of seclusion and restraint techniques in schools.”  He urged each state to “review its current policies and guidelines regarding the use of restraints and seclusion in schools to ensure every student is safe and protected.” As the proposed regulations stand, they do not go far enough to protect our children from abuse, and sadly it ignores the discrepancy of the use of restraint and seclusion among minority groups and students with disabilities. This means that more children will be horribly abused, victimized, traumatized and are at risk of death because our government has failed to protect them.
Thank you

Cheryl A Poe, M.A,

'Founder Advocating 4 Kids, Inc

Board President -National Allies of Parents in Special Education NAPSE