On April 18, 2012, Corey Foster, a sixteen-year-old boy at a residential school in Yonkers, New York, was playing basketball in the school’s gym. Some staff members also began playing basketball. They asked him to leave the court. Corey became agitated and refused to leave; in response, four staff members then physically restrained Corey on the gym floor. While being restrained, Corey went into cardiac arrest and died.

Unfortunately, Corey’s story is not unique: many children have been injured, traumatized, and even died because of the use of seclusion and restraint in school.

Personal stories, grassroots advocacy, and media coverage have drawn our attention to a concerning reality in America’s schools: the seclusion and restraint of students, in particular students with disabilities. As methods of discipline, seclusion is the practice of isolating a student alone where they are unable to leave, and restraint is the immobilization of a student’s body to prevent movement. Although state legislatures and departments of education have made considerable progress on the issue of seclusion and restraint over the past decade, Congress should act to pass legislation on the issue to ensure baseline protections are provided to all students across the country.

To better understand why we need federal legislation on the issue, it is important to understand the context of seclusion and restraint in schools today, how widespread the practice is, how state policies currently protect or fail to protect students in school, and how schools are adopting alternative strategies to address discipline in schools without resorting to restraint and seclusion. This commentary will look at each in turn, and finish with a discussion of a promising bill that would make for an appropriate federal-level response.

The Size of the Problem

Federal attention to the issue of seclusion and restraint began about a decade ago. As chairman of the Education and Labor Committee, Representative George Miller (D-CA) called a hearing in May 2009 to better understand the use of seclusion and restraint in America’s schools. For that hearing, the Government Accountability Office (GAO) testified that they had found “hundreds of cases of alleged abuse and death related to the use of these methods on school children during the past two decades.” Toni Price also testified before the committee to tell the story of her foster child Cedric, a fourteen-year-old boy from Texas. Cedric had come to Ms. Price’s family after years of both physical and emotional abuse and neglect, including periods where he went underfed. In eighth grade, a teacher of his began to punish Cedric for misbehavior by delaying his lunch. One day when he had not yet been given lunch, Cedric tried to leave his classroom and refused to sit back in his chair. His teacher then restrained him, putting him face down on the floor. Despite his pleas that he could not breathe, the restraint continued, and Cedric died in the classroom.

A few months after the hearing, Representative Miller, along with Representative McMorris Rodgers (R-WA) in the House and Senator Chris Dodd (D-CT) in the Senate, introduced the first version of a bill to restrict the use of seclusion and restraint in schools, called the Preventing Harmful Seclusion and Restraint in Schools Act. Unfortunately, this bill would not become law.

Three years later, when I was working for Representative Miller on this issue, I would hear the story of Corey Foster. Representative Miller continued to draw attention to this issue, reintroducing the legislation, now called the Keeping All Students Safe Act. But the bill would again fail to become law.

Today, nearly a decade since Representatives Miller and Rodgers and Senator Dodd introduced the first bills—and in spite of these and other stories of children being injured and traumatized—Congress has yet to pass legislation to restrict the use of seclusion and restraint in schools. And this is not because the incidents have disappeared. As recently as this past November, Max, a thirteen-year-old with autism, died after being restrained for an hour at a school in Northern California.

The use of seclusion and restraint in schools is not limited to a small group of students. In the 2015–2016 school year, 122,000 students across the country were restrained or secluded, according to data from the Civil Rights Data Collection. Students with disabilities and African American students were disproportionately disciplined in this way. Even though students with disabilities make up 12 percent of total enrollment across the country, they make up 71 percent of students who were restrained and 66 percent of the students who were secluded; African American students make up 15 percent of total enrollment, and yet they represent 27 percent of those students subject to restraint and 23 percent of those students who were secluded in school.

These students need to be protected.

Current State Laws and Federal Guidelines Are Insufficient

Since 2009, several states have passed legislation to increase protections for students. In fact, between the initial introduction of federal legislation and 2017, twenty-seven states either enacted for the first time or made significant changes to their laws on seclusion and restraint. In some instances, the states have passed comprehensive legislation to better protect students in schools. In other instances, the laws’ protections remain inadequate. And in the remainder of cases, no such laws exist. Additionally, some laws provide protections for all students; others only do so for students with disabilities.

It should not matter in which state you live—all children deserve to be safe in school.

Although the increase in state law since 2009 is positive, the total number of meaningful statewide laws remains less than encouraging. Many states still have glaring gaps in their protections. As of December 31, 2016, according to an analysis completed by Jessica Butler for the Autism National Committee, only twenty-eight states provide meaningful legal protections for all students related to seclusion and restraint; in thirty-eight states, legal protections exist specifically for students with disabilities, but not for other students. Only nineteen states protect all students, limiting the use of restraint to instances of immediate threats of physical danger (twenty-three states offered that limitation, but only for students with disabilities). Twelve states ban seclusion of any form for all students, while eighteen do so for students with disabilities alone. About half of all states do not require that the use of restraint and seclusion end when the danger ends, and about half do not ban the use of mechanical restraints. About a third of all states do not have laws that prohibit the use of restraints that restrict breathing, and the same proportion do not require that parents or other legal guardians be notified within a day of any incident.

It should not matter in which state you live—all children deserve to be safe in school.

U.S. Department of Education Initiatives

Although Congress has yet to act, the Department of Education has tried to address seclusion and restraint through guidance and, most recently, enforcement. Under the Obama administration, in 2012, the Department of Education issued a resource document to support states and districts as they develop policies on seclusion and restraint. This document has served as a helpful guide to states, and many states adopted the prohibitions outlined in this document. However, the resource document does not carry the weight of law, and therefore merely suggests, rather than requires, that states establish minimum protections.

In January this year, Secretary of the U.S. Department of Education Betsy DeVos announced an initiative to address inappropriate use of seclusion and restraint in schools through technical assistance and improved enforcement, provided by the department’s Office of Civil Rights. Specifically, through this initiative, the department will increase reviews of seclusion and restraint practices used on students with disabilities in schools across the country to ensure they are meeting the requirements of disability anti-discrimination laws, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA). The department also pushes for better data collection on seclusion and restraint, and provides technical assistance to schools on their requirements under the ADA, Section 504, and IDEA. This initiative, though promising for students with disabilities, does nothing to protect students without disabilities. It also fails to establish specific minimum protections for students, leaving the interpretation of the disability rights laws to the discretion of a given administration.

Alternative Approaches in Schools

Seeking alternatives to punitive disciplinary measures, schools across the country have been embracing more positive approaches to discipline, including through Positive Behavior Interventions and Supports (PBIS). PBIS focuses on building a positive school culture, reinforcing positive behaviors, and providing tiered interventions to students who may need additional behavioral support. In a 2012 hearing before the Senate Health Education Labor and Pensions Committee, Dr. Michael George, the director of the Centennial School in Pennsylvania, a school for children with emotional and behavioral challenges, testified about the shift in discipline approaches at their school. During the first year of building in positive discipline approaches at the school, he noted that, over the course of the year, they went from 233 physical restraints in the first forty days of school to only one incident of restraint in the last forty days of school.

Shifting to positive disciplinary approaches, including through PBIS, has been successful, and educators and school leaders need additional support to continue the push.

Shifting to positive disciplinary approaches, including through PBIS, has been successful, and educators and school leaders need additional support to continue the push.

The Need for Federal Legislation

The variability in state law, the limitations of the current federal guidance, and the need to support promising alternative approaches in schools justify the need for federal involvement in this mission to protect more students from inappropriate seclusion and restraint.

As noted above, states differ in the protections they offer to their students: some provide robust protections, but others have limited protections, and, in some, protections are applicable only to students with disabilities, rather than to all students. Some states still do not have laws on the issue. States without laws may offer guidance or suggested practices, but these do not provide any legal protections. Finally, a couple of states have neither laws nor guidance whatsoever. This high variability in protections across states, running the gamut from substantial to none, demands a federal response to establish a meaningful baseline.

The federal role thus far has been in the form of guidance and, with the advent of the DeVos department’s new initiative, now investigation as well. But these methods are limited in their ability to provide protection. Importantly, issued guidance and supports, like the resource document, do not actually require anything of states. Guidance can also be rescinded with change in administration politics (as we have seen this administration act to rescind guidance on a variety of topics). Without the weight of law, the resource document does not sufficiently ensure the safety of children in schools.

The department’s new enforcement initiative is also insufficient to protect all students in schools. First, the initiative focuses on students with disabilities and does not examine the use of seclusion and restraint for students without disabilities, which communicates that its coverage would have significant limitations. Additionally, the enforcement initiative does not establish minimum standards on what can and cannot be done in instances of seclusion and restraint. Executive actions like this are no substitute for federal law passed by Congress.

Teeth isn’t the only thing that such a law can provide, however. To leverage the promising alternative approaches, including PBIS, federal legislation can provide districts and schools with financial and technical support in promoting and maintaining the practices’ implementation. This support can help teachers build positive learning environments, de-escalate negative situations, and ultimately reduce the need for seclusion and restraint in schools.

The Keeping All Students Safe Act

The Keeping All Students Safe Act, which seeks to establish minimum standards on the use of seclusion and restraint in school, has been re-introduced multiple times over the past decade and will be reintroduced for this Congress in the coming weeks. The bill, as introduced last Congress, prohibits the use of seclusion, chemical restraints, and mechanical restraints (duct tape, straps, ropes, etc.), as well as the use of physical restraints that restrict breathing. It permits physical restraint to be used only when “the student’s behavior poses an imminent danger of serious physical injury to the student, school personnel, school security guard, school resource officer, or others.” Importantly, the bill requires that any use of physical restraint is imposed by trained personnel and ends as soon as the threat of imminent danger ends. It requires schools to notify parents or other legal guardians within twenty-four hours about the incident. The bill also authorizes grants to support states, districts, schools, and teachers in implementing positive discipline approaches in school to replace these harmful practices.

Protections in school should not depend on whether you are a child with a disability or a child without a disability, whether you are African American or white, or whether you live in New York, Texas, California, or another state. It may be true that even with a relevant federal law, seclusion and restraint may still occur in school settings; but the law will make it possible for parents and school officials to hold such actions accountable.

Protections in school should not depend on whether you are a child with a disability or a child without a disability, whether you are African American or white, or whether you live in New York, Texas, California, or another state.

One student from the Centennial School, discussed above, described her own experience of being secluded thus: “They’d lock you in there and it was dark, there’s no windows, and you’re just stuck there for the whole day… No one there with you, you felt scared. Even for the bravest person in the world, it’s still really scary.”

No child should fear going to school in the morning. No parent should fear that their child will come home from school bruised, injured, or even, as was the tragic case with Corey, Cedric, and Max, dead. The safety and well-being of children in school should be a cause around which everyone can rally, regardless of political party. Congress should act now and pass the Keeping All Students Safe Act.