WASHINGTON, D.C. | March 3, 2010 -
Let me begin by stating unequivocally that the incidents uncovered by the GAO are unacceptable. No child should be put in physical danger by the use of seclusion or restraints in school. In each of the cases reviewed by the GAO, there was a criminal conviction, a finding of civil or administrative liability, or a large financial settlement – in other words, everyone agrees that what happened is simply wrong. We do not need a change in federal law for such behavior to be condemned.
Sometimes the most powerful tool we have as elected officials is the bully pulpit, and Chairman Miller and Representative McMorris Rodgers have certainly availed themselves of it. They have worked hard to call national attention to the misuse of seclusion and restraints in our schools.
States clearly recognize the need to proactively regulate and limit the use of these disciplinary tools. Today, 31 states have policies and procedures in place to govern when and how seclusion or restraint techniques may or may not be used. Another 15 states will have such protections in place in the near future.
The question today is: Who is best equipped to create and enforce those policies?
To answer that question, I would point to a letter from the Council of the Great City Schools, which states: “Every injury to a student in school is a matter of serious concern, but all such incidents are not necessarily matters of federal law.”
In fact, until recently, the U.S. Department of Education was not even collecting data on the use of seclusion and restraint tactics in schools. The Department has no experience or expertise regulating in this area. Yet H.R. 4247 would establish a new, one-size-fits-all federal framework that overrules the work of the 31 states (and counting) that are trying to quickly regulate these practices.
I request unanimous consent to include the letter from the Council of the Great City Schools in the record, along with letters from the U.S. Conference of Catholic Bishops, the American Association of School Administrators, the Council for American Private Education, the American Association of Christian Schools, and the Association of Christian Schools International.
Taken together, the concerns raised by these groups paint a picture of premature legislating and federal overreach – in essence, attempting to solve a problem we do not fully understand in a way that could actually make it more difficult for teachers to keep their classrooms safe.
I am especially concerned that H.R. 4247 would extend its new system of mandates into private schools. Historically, independent schools have been free from the federal mandates attached to federal education dollars.
Private school students and teachers are entitled to services – but no direct funding – under the Individuals with Disabilities Education Act and other laws. Yet under H.R. 4247, schools whose students receive services would be subject to the same prescriptive rules on the use of seclusion and restraints, despite the fact that these private schools receive no federal funding. This is a major departure from longstanding federal education policy.
The Council for American Private Education explains it this way: “a religious school with even a single student receiving math or reading instruction under Title I of the Elementary and Secondary Education Act would be subject to all the provisions of this bill, as would a school receiving a single piece of instructional material or professional development for a single teacher under any other ESEA title.”
Another likely consequence of H.R. 4247 is increased litigation. The bill’s vague and overly broad language is an invitation to trial lawyers who will eagerly take every opportunity to sue school districts who grapple with confusing and stringent new requirements. H.R. 4247 creates a climate of legal dispute by expanding the role of the protection and advocacy system of state-based trial lawyers – a clear recognition that seclusion and restraint are to become litigation magnets.
In fact, there’s a very real danger that schools will stop addressing safety issues entirely out of fear they could be sued. Instead, schools may resort to law enforcement to manage physically disruptive or threatening students. This will mean fewer students in the classroom and more students in police handcuffs.
Mr. Speaker, it is clear that teachers and school leaders need training and guidance on how to keep classrooms safe. Seclusion and restraint are never the first choice for promoting positive behavior, but if they must be used, they must be used safely.
It is just as clear that states – and not the federal government – should take the lead on developing and implementing these policies. H.R. 4247 is a bill with good intentions, but at the end of the day, it is simply not the most direct and effective way to keep our classrooms safe.
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