The American Civil Liberties Union is suing a Kentucky sheriff's deputy for handcuffing two young children who had been diagnosed with attention deficit hyperactivity disorder (ADHD). But when it comes to the school system that handed the children over to law enforcement on school grounds, federal law prohibits the ACLU from suing.

Some experts argue that it's the educators who turned the children over to the officer, and not the deputy, Kevin Sumner, who should be held accountable for the events that took place at Latonia Elementary School. Sumner is accused of handcuffing an 8-year-old boy and a 9-year-old girl for 15 minutes and 30 minutes respectively. According to Sumner, the boy – identified only as S.R. – refused to sit down when Sumner told him too and then attempted to hit Sumner. In a separate incident, Sumner says that the girl – identified as L.G. – refused to follow teachers' instructions and tried to leave her classroom. The teachers then called Sumner who handcuffed her.



The ACLU released cell phone video which captured Sumner speaking to the boy, who is handcuffed by his biceps in a chair.

Claudia Center, the ACLU attorney handling the case says in an interview that the fact the boy was Latino and the girl African-American adds fuel to the fire by bolstering the evidence that disabled children of color are more likely to be handcuffed in an educational setting than their white counterparts.

But when it comes to seeking justice, public schools are not subject to the same legal procedures that would apply if this incident had taken place in a different setting.

“The school district is covered by the IDEA (Individuals with Disabilities Education Act) and that law requires that other procedures and remedies be followed first, including negotiating with the school district first and going through an administrative process,” says Ms. Center. “You’re not allowed to sue." The Children's Law Center says it will be attempting to work through the required administrative process. [Editor's note: An earlier version misstated the organization that is working through the process.]

Center explains "IDEA exhaustion," the requirement that school administrative procedures be exhausted before aggrieved parties can turn to the courts. “It’s actually a big problem," she says. "It basically puts up barriers between these kinds of incidents in schools, which are extremely common, and going to court.”

The question of children being physically restrained is part of a larger problem. Recent data reported to the Department of Justice by the school districts indicates that about 52,500 children with disabilities each year are subject to physical restraint (being held down by someone), while almost 4,000 children with disabilities are subject to ‘mechanical restraint’ such as handcuffs. Center says such incidents are largely under-reported.

This practice is part of what the ACLU refers to as the “School-to-Prison Pipeline” – a chain of events that they say primes kids not for success but a future of incarceration.

Dr. Warren Stewart, retired Virginia school superintendent who has been a classroom teacher, principal and is recently retired Norfolk school board member says in an interview, “I watched that video on television last night, with the boy with his arms behind him, a child clearly, hysterically crying.”

“I think the person who bears responsibility in that [Kentucky] case is the person who handed them [the children] over,” says Dr. Stewart. “If someone abdicated –and I don’t use that word [abdicated] unintentionally – their educational responsibility to a resource officer, they have given up their power. I think they stand responsible for the results of that. The principal bears the ultimate responsibility for what happened.”

Stewart says he has been in education long enough to have witnessed the genesis of police officers entering the classroom as School Resource Officers (SROs). The practice began in the mid-1990s. In Virginia, Governor Jim Gilmour pushed the issue as a response to the Columbine attacks in Colorado.

When dealing with children with disabilities, both Stewart and Center both recommend the use of tactics like de-escalation, verbal calming and teaching the children self-regulation techniques.

Typically, SROs in schools serve as safety experts and law enforcer, problem solvers and liaisons to community resources and educators, according to a 2010 Center for Problem Oriented Policing (POP Center) report by Barbara Raymond.

“Police agencies have long provided services to schools. It has only been in the past two decades, however, that assigning police officers to schools on a full-time basis has become a widespread practice,” writes Raymond in the report. “An estimated one-third of all sheriffs' offices and almost half of all municipal police departments assign nearly 17,000 sworn officers to serve in schools. Moreover, nearly half of all public schools have assigned police officers.”

Some school-related problem-specific SRO jobs according to the POP Center typically include dealing with: bullying, underage drinking, bomb threats, school vandalism and break-ins, and traffic congestion around schools.

However, every school has its own approach to what responsibilities and training an SRO is required to have in order to serve in their environment, Stewart says.The key, Stewart maintains is in having the educators making the primary decisions.

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“In terms of what I would recommend moving forward, I would never want a decision to be made in a similar setting to what was made in Kentucky, to be made by someone who wasn’t an educator,” Stewart says. “I would want the decision made by the educator and have the resource officer be a resource – hence the name. ”

Center agrees. “I think that overall, having a sheriff’s officer interacting with young children with disabilities is a bad idea," she says. "If schools could have fewer school resource officers, or if they could eliminate that role, that would be even better.”