By Abbey Silverman

In 2007 a sixth grader, Kayleb Moon-Robinson, who was diagnosed with autism, was arrested and charged with disorderly conduct and felony assault.[1]  Kayleb was first charged with disorderly conduct after a school police officer confronted him about his loud behavior, and Kayleb reacted by kicking a trashcan in the hallway.[2]  Due to this reaction, the school implemented a new rule that required Kayleb to wait in his classroom each day until all the other students left, and then he would be escorted to his new classroom.  A few weeks after this new rule was implemented, Kayleb decided to get up and leave the classroom with his fellow classmates.  The police officer attempted to grab Kayleb and take him to the principal’s office but subsequently Kayleb pushed him.  As a result, Kayleb was immediately shoved down to the ground and, despite crying out in pain, was handcuffed and arrested.  Months after this incident occurred, the court found that Kayleb was guilty of all felony charges.[3]

This instance is not a rare occurrence in special education classrooms across the nation.  By failing to rehabilitate or work with individual student needs, these atrocious results, both in and out of special education classrooms, have increased at a considerable rate.[4]  This rise in discipline is not only affecting individual students, but it is further exacerbating the school-to-prison pipeline, due to the interference of law enforcement in schools.[5]  Specifically, such discipline allows our school and societal policies to push children out of the classroom and into the juvenile and criminal justice system.[6]  Despite the increase in awareness and protections implemented in the disability community as whole, special education has not been able to keep up.[7]

While well-intentioned in the protection of children with disabilities, the procedural safeguards amended in the 2004 version of the Individuals With Disabilities Education Act (“IDEA”) fail to protect students. As required by the IDEA, an Individualized Education Programs (“IEP”) is a legal requirement that a student in special education must preemptively determine a child’s individual learning needs, the child’s individual goals for the year, and how the school will meet those goals.[8]  The problem is that IEPs are not written or regulated clearly enough to protect such students.  While some IEPs recommend certain procedures for a student in special education, such as that a student be removed from class for a period of time, there has been a rise in the use of saferooms and other questionable methods of disciplinary measures for dealing with special needs students.

Congress passed the IDEA Act with the goal of ensuring access to education that is narrowly tailored to students with disabilities’ specific needs. Prior to any legislation for special education, individuals with disabilities lived in state institutions and restrictive settings, which only provided the minimal clothing and food necessary without any education.[9]  Those individuals with disabilities that were not living in institutions were completely denied access to public education because the schools lacked the resources to adequately support disabilities.[10]  Therefore, in enacting legislation it was necessarily to not just to provide classrooms for those with disabilities, but also to create legislation that gave the students access to quality education and protected them from the stigma surrounding their disability.  Despite these intentions, common results that occur under the Act are that school administrations fails to acknowledge or investigate the actions alleged against teachers and that the courts determine that the actions of such teachers are within the purview of the school’s duties.[11]
The two major flaws in the protections of special education students, as demonstrated from incidents like that of Kayleb, are that there are neither restrictions to prohibit the use of restraints, nor are there restrictions on the use of seclusion policies in school.  For example, one type of seclusion practice mentioned in the U.S. Department of Education’s report entitled “School Climate and Discipline” is the harmful use of “safe rooms.”[12]  While some IEPs recommend that students be removed from class for a period of time for a time out, these safe rooms have become small, dark closets with no windows that the students are locked for several hours. In Payne v. Peninsula School District, a student diagnosed with autism was locked in a safe room pursuant to his IEP referencing a need for some time out of the classroom.[13]  The purpose of the safe room was to give the student a brief break from the class environment.[14]  However, this safe room was described as a 5’ by 6’ closet located within the special education classroom.[15]  On several occasions, the student would be so anxious in this safe room that he would take off his clothes, and then urinate or defecate on himself.  After the parents sued the school for negligence, the Court determined that the safe room was permitted pursuant to the IEP, even if it caused further academic setbacks or anxious behaviors.[16]  Due to the fact that the isolation was neither a manifestation of his disability, nor a failure of the school to properly follow his IEP, the IDEA could not protect against the school administration’s form of disciplining the student’s perceived misbehavior.[17] Had there been federal legislation against the use of seclusion practices, such as the extreme nature of the “safe room,” the student would have been protected and the school would have to be accountable for the staff’s behavior.

Similarly, in C.N. v. Willmar Public School, a third-grader diagnosed with a communications disorder, was regularly restrained and tied to a postural chair for extended periods of time while being verbally abused, was choked when she tried to resist the restraints, and was denied use of the bathroom thus causing accidents while restrained.[18]  The court noted that because C.N.’s IEP stated that postural chairs could be used in certain settings, it was an acceptable process, even if its use of such a chair was “overzealous at times.”[19]  These cases show the lack of protection that the law provides for students in special education against these policies.[20]  While both medical and legal officials have issued statements acknowledging the harm of these practices, the law consistently fails to protect against them.

Many advocates against amending or enacting additional federal legislation have stated that these problems of restrain and seclusion should solely be handled within the IEP process, instead further burdening federal legislation.[21]  While specifying IEPs to forbid restraint and seclusion methods may help address some problems on an individualized level, it fails to sufficiently protect against the systemic issues that face our special education classrooms. Additionally, the process of creating IEPs is already such a meticulous and strenuous process to go through, it will only put an added burden on the construction of the IEPs and any claims that are brought under the IDEA, rather than creating a clear bright line rule.[22]  Given the rise of rehabilitation rather than institutionalization, the clear standards against restraint and seclusion applied to institutional settings should be easily transferrable to academic settings, especially given the essential roles schools play in our society.



[1] Blue Telusma, 11-Year Old Autistic Boy Handcuffed At School And Later Charged With A Felony, theGrio, (Apr. 12, 2015, 3:13 PM),

[2] See id.

[3] See id.

[4] See Guidance Report, U.S. Department of Education, School Climate and Discipline, (July 2015),; see generally, Office of Civil Rights, U.S. Dep’t of Educ., 2011-12 Discipline Estimates, available at

[5] See Catherine Y. Kim, et al., The School-to-Prison Pipeline: Structuring Legal Reform 26-33 (New York University Press 2010)

[6] See id. at 23; see also What is the School-to-Prison Pipeline Fact Sheet, ACLU,

[7] See Curt Decker, School is not Supposed to Hurt, National Disability Rights Network, 1, 14 (Mar. 2012), tions/Reports/School_is _Not_Supposed_to_Hurt_3_v7.pdf.

[8] See Kristin Stanberry, Understanding Individualized Education Programs, Understood,

[9] Thirty-Five Years of Progress in Education Children with Disabilities Through IDEA, Department of Education, Office of Special Education Program, pg. 2-3 (Nov. 2010) (“In 1967 200,00 persons were living in institutions.”)

[10] See id. at 4.

[11] See id. at 6.

[12] See Guidance Report, supra note 4.

[13] Payne, 653 F.3d at 864-65.

[14] See id. at 864.

[15] See id.

[16] See id. at 870.

[17] See id.

[18] C.N. v. Willmar Pub. Sch., 591 F.3d 624 (8th Cir. Minn. 2010).

[19] C.N., 591 F.3d at 633.

[20] See id. 633-34.

[21] See Decker, supra note 7 (evaluating the different arguments that are made for and against the reform of the IDEA legislation).

[22] See Peter J. Kozik, Examining the Effects of Appreciative Inquiry on IEP Meetings and Transition Planning, 1, 82-86 (2008).

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