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$450,000 Settlement in Teacher Restraint and Seclusion Case
by Pete Wright & Pam Wright, Wrightslaw.com
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On January 9, 2020, news broke about a $450,000 settlement between the Wake County Public School System (WCPSS) and the parents of a child with autism who attended Southeast Raleigh High School (SERHS).
Background
This case is about S.L., a boy who was diagnosed with autism at age two. S.L. attended Wake County Public Schools (WCPSS) where he was placed in self-contained classes from 6th grade through April of his 11th grade year.
In November 2018, school staff at Southeast Raleigh High School observed that M.C., a special education teacher, was behaving aggressively to one of his students (not S.L.) who has a severe disability.
The staff reported M.C.'s abusive conduct to the school principal. However, M.C. continued to teach in the classroom. Shortly thereafter, the staff who reported M.C.'s conduct were disciplined by the principal.
In February 2019, with the support of school administrators, M.C. converted a storage room into a "calm down" room for the students. M.C. then began to improperly restrain, isolate, and use aversive measures with S.L. in the storage room. The staff recorded M.C.'s actions with videos and photographs, which they ultimately shared with S.L.'s parents.
Parent attorney Stacey Gahagan described what should have happened next. “The district has a protocol for reporting teachers who engage in abusive behavior to the State Board of Education. The Board reviews the situation and decides whether licensure revocation is appropriate."
"The school district assured S.L.'s parents that it follows this protocol consistently to ensure teachers who mistreat students, especially those with disabilities, do not end up teaching in another school."
But in S.L.'s case, the administrators did not follow the required protocol and failed to report the abuse complaints to the State Board. School staff who reported M.C.'s abusive behavior were transferred or investigated. M.C. continued to work as a special education teacher at the high school.
M.C. also converted a storage closet into a "seclusion room" where he isolated his students for hours at a time and even full school days - another violation of NC law.
(See "Section 115C-391.1 - Permissible Use of Seclusion and Restraint that includes Required Notice, Reporting and Documentation")
Attorney Stacey Gahagan said that when S.L.'s parents noticed multiple bruises on their son’s body, they emailed a complaint with photographs to the school administrators and the school district to report their concerns.
No one contacted the parents to investigate their complaint.
While Wake County ignored the parents' claims of abuse and seclusion, M.C. continued to work as a special education teacher of children with severe disabilities.
Ms. Gahagan said that an investigation did no’t begin until after the district’s legal counsel was made aware of the allegations, pursuant to the request for a special education due process hearing.
A spokesman for TV station WRAL reported the school district's statement -- “"The district was unaware of the allegations prior to the parent’s petition. After the allegations were made, Special Education Services provided mandatory training for all teachers at the school who work with students in self-contained classrooms.”"
The spokesman did not provide the reason why the school district refused to investigate claims of abuse by school staff and the child's parents.
In North Carolina, schools are allowed to seclude students by placing them in a different room to prevent injury. But schools are not allowed to seclude them solely for disciplinary reasons, according to Disability Rights NC.
What Does N.C. Law Say About Restraint & Seclusion?
115C-391.1 - Permissible use of seclusion and restraint.
(e) Seclusion:
(1) Seclusion of students by school personnel may be used in the following circumstances:
a. As reasonably needed to respond to a person in control of a weapon or other dangerous object.
b. As reasonably needed to maintain order or prevent or break up a fight.
c. As reasonably needed for self-defense.
d. As reasonably needed when a student's behavior poses a threat of imminent physical harm to self or others or imminent substantial destruction of school or another person's property.
e. When used as specified in the student's IEP, Section 504 plan, or behavior intervention plan; and
(2) Except as set forth in subdivision (1) of this subsection, the use of seclusion is not considered reasonable force, and its use is not permitted.
(3) Seclusion shall not be considered a reasonable use of force when used solely as a disciplinary consequence.
(j) Notice, Reporting, and Documentation.
(1) Notice of specific procedures - [school personnel and parents are to be provided with this law]
(2) Notice of specified incidents -
a. School personnel shall promptly notify the principal or principal's designee of:
1. Any use of aversive procedures.
2. Any prohibited use of mechanical restraint.
3. Any use of physical restraint resulting in observable physical injury to a student.
4. Any prohibited use of seclusion or seclusion that exceeds 10 minutes or the amount of time specified on a student's behavior intervention plan.
b. When a principal or principal's designee has personal knowledge or actual notice of any of the events described in this subdivision, the principal or principal's designee shall promptly notify the student's parent or guardian and will provide the name of a school employee the parent or guardian can contact regarding the incident.
(3) As used in subdivision (2) of this subsection, "promptly notify" means by the end of the workday during which the incident occurred when reasonably possible, but in no event later than the end of following workday.
(4) The parent or guardian of the student shall be provided with a written incident report for any incident reported under this section within a reasonable period of time, but in no event later than 30 days after the incident. The written incident report shall include:
a. The date, time of day, location, duration, and description of the incident and interventions.
b. The events or events that led up to the incident.
c. The nature and extent of any injury to the student.
d. The name of a school employee the parent or guardian can contact regarding the incident.
Many states have similar laws. Search Google using this phrse: laws rules regulations student seclusion yourstatename
Ten years ago, in February, 2010, the U.S. Dept. of Education published a "Summary Table of Seclusion and Restraint Statutes, Regulations, Policies and Guidance, by State and Territory"
In S.L.'s case, the school failed to provide his parents with the required Notices of the events and failed to "promptly notify the parents that an incident had ocurred."
Parents' Petition for a Due Process Hearing
On April 11, 2019, S.L.’s parents filed a Petition for a Special Education Due Process Hearing, alleging, in part, that:
"Wake County Public School System Board of Education violated the procedural and substantive requirements of the Individuals with Disabilities Education Act and the North Carolina special education statutes by inappropriate and unlawful use of mechanical restraint, physical restraint, seclusion, isolation, and aversive procedures by former staff at the high school.”
"WCPSS has repeatedly restrained, isolated, used aversive techniques, and secluded S.L. as a result of his behaviors, although S.L.’s IEP and BIP do not provide for these procedures to be used with S.L.”
"In violation of North Carolina law, the WCPSS has not properly documented these restraints, isolations, and seclusions of S.L., promptly notified S.L.’s parents regarding the incidents, or provided written incident reports to S.L.’s parents.”
In addition to claims about the inadequate IEPs prepared by WCPSS and exclusion of S.L.'s parents from the IEP meeting, the parents' Petition alleged:
"On March 4, 2019, a Southeast Raleigh High School administrator suspended S.L. for one day but did not provide a discipline referral to S.L.’s parents."
On March 5, 2019, “S.L.’s teacher withheld S.L.’s breakfast and secluded him in the classroom kitchen for the entirety of the day. WCPSS informed S.L.’s mother that S.L. was placed in 'in school suspension' for the day.”
"In retaliation for S.L.’s mother sending S.L. to school on March 5, 2019, the WCPSS provided S.L.’s mother with a Notice that S.L. would now be suspended for three days —instead one day— due to the same incident on March 4, 2019."
"The Notice of Suspension falsely reports that S.L., —a non-verbal student without a communication device— was ‘given an opportunity to respond to the charges by Brent Miller.”
On April 1, 2019, S.L. was unable to walk home from the school bus stop "without limping when he exited the bus. He had bruises on his stomach and limbs."
"S.L.’s mother took him to the emergency room for care. S.L. has not returned to school since the incident."
Negotiations and Settlement Agreement
After the parents submitted their April 11, 2019 Petition for a Special Education Due Process Hearing, the negotiations began between Stacey Gahagan and the attorneys for the school district. On September 18, 2019, the parents and school district entered into a settlement agreement.
Read the Settlement Agreement.
Under the agreement, the district agreed to pay the parents $450,000 without admitting liability.
A district spokesman claimed that M.C. was no longer employed by Wake County.
After the settlement was completed, parent attorney Galahan learned that M.C. was working as a special ed teacher in Durham Public Schools, less than 40 miles away.
The parents were shocked and upset. As Ms. Galahan reported, “This news is particularly disturbing to S.L.’s parents as they are concerned the same thing could happen to other children ... S.L.’s parents want the parents of children with disabilities —and other concerned members of the public —to know this happened to their child and the perpetrators are still working in public school systems of North Carolina."
What Can We Do to Protect our Most Vulnerable Children?
S.L.'s parents have given this question a lot of thought.
Ms Gahagan said the parents are concerned that M.C. was able to get a teaching position in a nearby school district and are also "interested in the results of the DPS investigation as they would like to know how this could happen."
Attorney Gahagan said S.L.’s parents want answers to the following questions:
* Was M.C. actually dismissed by the WCPSS?
* Was M.C. allowed to resign without any record of the allegations in his file?
* Did WCPSS report to the State Board of Education?
* Did the State Board of Education investigate this matter?
* Is the investigation ongoing or was a decision rendered?
* Did M.C. report on his application to Durham Public Schools that he had been dismissed, suspended, or asked to resign from WCPSS?
* Did anyone from the Durham Public Schols call WCPSS for a reference?
* If so, did someone from the WCPSS give M.C. a positive reference?
* If so, was this person the SERHS principal who remained in her position through December 2019?
Ms. Gahagan explained, “S.L.’s parents firmly believe that placing cameras in the separate classes for students with significant disabilities may prevent, or at least decrease the likelihood, of this type of harm against these students in the future.”
"S.L.'s parents and other concerned citizens would also like to know where the system broke down - the system that is supposed to protect vulnerable students from a teacher resigning and going to another district after these types of allegations are made."
At Wrightslaw, we look forward to reading the answers to these questions.
But, but, but . . .
Does History Repeat Itself in Wake County?
In 2008, we published an article, Handcuffs? Bruises? Disability Rights Files Suit Against Wake County Schools, about a similar abuse and seclusion case against Wake County. We also posted the federal court complaint.
At that time, Disability Rights NC was receiving complaints that children with autism in Wake County were being "...improperly restrained in class, including a child in handcuffs and a child returning from school with bruises ... that children with autism received bruises from an inappropriate restraint and that neither the restraint nor the injury was properly reported or documented."
Wake County quickly settled the case with Disability Rights NC.
And . . . what about mandatory reporting?
School Personnel are Mandatory Reporters under the Child Abuse Prevention and Treatment Act
The Federal Child Abuse Prevention and Treatment Act (CAPTA) requires States to have provisions / procedures that require certain individuals to report known or suspected instances of child abuse and neglect. (42 U.S.C. § 5106a(b)(2)(B)(i))
Mandatory reporters include social workers, teachers and other school personnel, child care providers, physicians and other health-care workers, mental health professionals, and law enforcement officers. Some States require any person who suspects child abuse or neglect to report.
Universal Mandated Reporting
North Carolina adopted Universal Mandated Reporting, a higher standard. Universal Mandated Reporting requires “any person or institution who has cause to suspect that any juvenile is abused, neglected, or dependent… or has died as a result of maltreatment” to make a report to the county department of social services where the child resides or is found. (G.S. 7B-301)
In North Carolina, school administrators, teachers, and other school staff are mandatory reporters and are required to report known or suspected incidents of child abuse and neglect to Child Protective Services.
Wake County Public Schools administrators, teachers, and other school staff are mandatory reporters.
* After receiving reports and complaints from teachers and other staff that M.C. was abusing his students, WCPSS adminisrators failed to act in their roles as mandatory reporters.
* After receiving the parents' report, emails amd photographs of bruises on this child's body, WCPSS administrators failed to act in their roles as mandatory reporters.
Criminal Sanctions?
North Carolina law states, "A person who knowingly or wantonly (i) fails to report or (ii) prevents another person from making a report as mandated by the universal reporting statute “is guilty of a Class 1 misdemeanor.” (G.S. 7B-301)
Although spokesmen for WCPSS claimed “The district was unaware of the allegations prior to the parent’s petition,” there is ample documentary evidence in the reports, complaints, emails, and photographs by the parents and concerned teachers that WCPSS knew or should have known about M.C.'s "inappropriate and unlawful use of mechanical restraint, physical restraint, seclusion, isolation, and aversive procedures."
As mandatory reporters, WCPSS staff are required to report abuse incidents to Child Protective Services (CPS).
But mandatory reporting did not protect S.L.
WCPSS administators failed to function as mandated reporters. They failed implement the protocol requiring them to report teachers who abuse students to the State Board of Education. The purpose of that protocol was "to ensure teachers who mistreat students, especially those with disabilities, do not end up teaching in another school" -- which is what happened here.
If a school refuses to implement a required protocol and refuses to comply with the law about mandatory reporting, that school will fail to protect vulnerable children.
So How Can We Keep Our Most Vulnerable Children Safe?
We are left with this tough question.
WCPSS kept M.C.'s abuse of his students a secret so the State Board could not investigate abuse allegations to determine if M.C. would be allowed to keep his teacher's license.
How can we protect our vulnerable children if school districts can violate laws that are intended to protect these children so easily?
Perhaps the question we need to ask is: "How can we protect our must vulnerable children if there are no penalties or punishments for school districts that violate laws intended to protect these children?"
At Southeast High School, administrators punished staff who observed, recorded and reported M.C.'s abusive behavior toward his students. One issue relates to the administrators' beliefs about children with disabilities. Another is the negative culture at this school, a culture where staff are punished for reporting illegal abuse and seclusion of children.
The negative attitudes and beliefs held by school administrators have to change. The toxic school culture has to change. Parents and advocates can and should work toward this goal, knowing that schools are organizations that resist change. Change is slow.
Until these attidudes, beliefs and school culture change and until there are penalties and/or punishments for school districts and administrators who violate laws intended to protect children, we will have to rely on classroom cameras to help protect our most vulnerable children.
Sad but true.
Created: 02/03/2020
Revised: 02/04/2020
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