Credit: Diane Diederich, iStock

Credit: Diane Diederich, iStock

Four special education students and their parents or guardians filed a lawsuit last week against the state of California claiming they were emotionally and physically harmed when they were illegally put in restraint holds and secluded during behavioral interventions at their Concord school.

The four students attended Floyd I. Marchus School, operated by the Contra Costa County Office of Education. The public school offers special education services and integrated counseling to 85 children with emotional and behavioral disabilities. Students are referred to the school from districts in Contra Costa County and neighboring counties.

The class-action suit, alleging battery, negligence and civil rights violations, also names the California Department of Education, the Contra Costa County Office of Education and members of the staff at Marchus School as defendants. The suit also names State Superintendent of Public Instruction Tony Thurmond, in his official capacity as state schools chief, although the incidents occurred before he took office in January.

The plaintiffs are being represented by the pro bono advocacy law firms Public Counsel and Disability Rights Education and Defense Fund, Inc., as well as a private firm.

The plaintiffs blame state officials for not monitoring and supervising the use of restraint and seclusion as behavioral interventions at schools that serve special education students. It also claims school and state officials violated the rights of students forced to sit in seclusion because it kept them from receiving basic educational services.

A state law that went into effect Jan. 1 calls restraint and seclusion “dangerous interventions” and stated they may only to be used when a special needs student poses a danger of serious physical harm to themselves or others.

The suit addresses an issue that is getting wider attention in recent years — unnecessary restraint of students with behavioral and other needs who are placed in special education programs.

It claims that children in California schools are routinely restrained and secluded in non-emergency situations. As an example of the danger of physically restraining children, the lawsuit cites the death of Max Benson, a 13-year-old boy who died in November while in a prone restraint at Guiding Hands School, a school in El Dorado Hills certified by the state to provide special education services.

A prone restraint involves one or more adults holding a child face down on the floor. California regulators found that the school had violated restraint rules and revoked its certification in January, according to the Sacramento Bee.

Elected last November, Thurmond, in an interview with EdSource, said that taking on the issue of restraint is a major priority for him. He is sponsoring legislation directing so-called “non-public” schools like Guiding Hands School to upgrade reporting requirements and to ensure that there are behavior specialists on staff to handle difficult situations with students. Especially challenging he said, is how to “achieve a balance between restraint and keeping kids safe.”

Officials at the Contra Costa County Office of Education would not comment on the details of the case, citing student privacy rules.

“Marchus school has been around for a long time — for 35 years,” said Terry Koehne, spokesman for the office of education. “School districts in our county have recommended placing students with extreme behavioral and social emotional needs at Marchus school because it provides the best opportunity for their children to be successful.”

Marchus school was already in compliance with the new state restraint and seclusion law when it was adopted in 2018, Koehne said. “We were out in front of that.”

The school’s staff has been extensively trained on the least invasive strategies, he said, adding that staff only conduct interventions when a child is at risk of harming himself or others.

The California Department of Education issued a statement saying, “The suit raises serious and important issues regarding dangerous practices inflicted on some children in school. California has committed, consistent with new legislation that took effect just this year, to strong leadership to eliminate unlawful restraint and seclusion in California schools.”

The suit alleges that the staff at Marchus school used the interventions routinely as a means of punishing students, instead of reserving them for emergency situations.

Mark Rosenbaum of Public Counsel said the lawsuit has a broader scope than the incidents at Marchus school. The state failed its responsibility to oversee special education programs statewide to ensure that appropriate behavioral interventions are used, he said.

“They have to change the way they do things,” he said.

Rosenbaum said Marchus isn’t the only school in California to use restraint and seclusion in non-emergency situations. “This is happening too frequently at too many schools, to too many families and too many children,” he said.

The families named in the lawsuit say their children — Kerri K., Jacob K., Sara S. and Annie T. — have been traumatized by being restrained and secluded and by watching their classmates physically restrained by adults. Family members are all using fictitious names in the lawsuit to protect the children’s identities.

School records show that Kerri K. was restrained 45 times and Jacob K. 15 times in two semesters, and Sara S. was restrained 13 times over two weeks, according to the lawsuit. Kerri K. had been put in restraint holds more than five times a day on multiple occasions, according to the suit.

Here are some of the incidents described in the lawsuit.

In June of 2017 Kerri K. was allegedly picked up and pinned against wall cabinets, her legs pulled apart and her head bent between her legs, for throwing a half-empty water bottle in the direction of a Marchus staff member. Kerri K., whose feet were dangling above the ground, complained she was in pain and could not breathe, but the staff continued the restraint hold. Kerri K. was 9 at the time, according to her mother.

On Oct. 10, 2017, Marchus staff put Sara S. in a restraint hold and took her to a room used for seclusion. She was restrained for 15 minutes because she persisted in trying to return a water bottle to a staff member. After being left alone in the room she threw a pair of scissors and yelled, “I’m going to kill you.” Police removed her from the campus in handcuffs and she was taken to a psychiatric hospital where she stayed for three days. Sara was told not to return to the school and is now in a residential program, according to the suit.

On Feb. 28, 2018, Marchus staff tried to remove Jacob K. from a classroom after he pulled a desk toward him in frustration during math instruction. He kicked at a staff member’s shins in an attempt to get away and was brought to the ground in a restraint hold. After this experience, Jacob K. began hitting his head against the wall and hitting himself and saying he wanted to die, according to the suit.

The lawsuit claims the school failed to document many of the events and often did not tell parents about them within one school day, which are both required by law. All the families say their children have suffered academically because of the behavioral intervention practices at Marchus.

“They don’t look at them as children with special needs,” said Elyse K., the mother of twins Kerri K. and Jacob K. “They look at them as children with poor behavior who they are trying to break into submission.”

Her children still attend the school, although they carry cellphones to keep in touch with their mother, who drops by often. Elyse said there is no other choice except a residential facility.

“They are put in this school because it is the end of the line,” she said. “If they are forced to leave Marchus they are blackballed, because no school will take them.”

The Marchus lawsuit cites a 2015 EdSource report on the lack of state oversight of restraint and seclusion practices. The story documents a discipline system in many special education classrooms in which minimally trained classroom aides have significant leeway in using emergency interventions to manage disruptive students.

The lawsuit is seeking monetary restitution, punitive damages and attorney’s fees for the plaintiffs named in the case, as well as the requirement that Marchus staff be trained to use “positive alternatives” to physical restraints and seclusion.

It also seeks a system of accountability at the school that would include removing staff who are unable to use positive alternatives, as well as an injunction to keep the school from enrolling new students until all defendants have complied with the court’s ruling.

The plaintiffs are asking that the lawsuit be heard as a class-action case that would include all present and future students at Marchus School and those who attended within the last three years.

Attorney Arlene Mayerson, of the Disability Rights Education and Defense Fund Inc., said instances of restraint are more frequent in schools that serve only special needs students.

“This is a national issue and definitely a big issue in California,” she said. “It’s a practice that is going on in 2019 that really has no business in the schools.”

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