Author: Justin S. Gilbert

If you are a parent, it is likely you have put your child in “time out” for a few minutes, until he or she calms down. If you are the parent of a child with autism, however, the idea of a “time out” can have different connotations. By using words like “time away” and “time out,” some schools have been able to violate the laws when it comes to isolations and restraints.

Recently, schools in Iowa have come under fire for using “Seclusion boxes” which they have labeled “time outs.” Students with disabilities are placed inside these pine boxes for behavior related to their disabilities. HuffPost put together this video about them:

Iowa is not alone. In Tennessee, with the help of Justin Gilbert, two families are fighting back in a suit that names the Tennessee Department of Education (“TDOE”), Tennessee State Board of Education (“TBOE”), the Knox County Board of Education and Knox County in a first-of-its-kind lawsuit alleging inappropriate seclusions. The suit alleges that Knox County has repeatedly violated the laws regarding isolation/seclusion and restraints through “time away rooms,” leading to systemic problems, and that the State of Tennessee, is co-liable for those actions.

Understanding the laws which protect special needs students

The Individuals with Disabilities Education Act, or “IDEA,” is a federal law that requires all students with special needs to be provided with a “free appropriate public education.” IDEA also says that schools have to uphold state regulations as well. In Tennessee, that means schools have to uphold and follow the regulations put forth in the Special Education Behavior Support Act, or “SEBSA.” (Tenn. Code Ann. §49-10-1301 et. seq.)

Federal law also requires all states to monitor the use of isolations and restraints for special needs students.

Because of this, the TDOE is supposed to collect data about the use of restraints and isolations, and submit that data to the Tennessee Advisory Council for the Education of Students with Disabilities. However, public schools in Tennessee have different understandings of what constitutes an “isolation” or “restraint” and, as a result, the data sent to TDOE is not reliable.

Written guidance to schools is necessary. For example, basic definitions of the terms, timeframes for how long a student can be put in isolation or restrained, and analysis of what constitutes an emergency situation, are all needed. Unfortunately, this work has yet to be completed.

Why this lawsuit should matter to parents of students with special needs like autism

What makes this particular lawsuit so important is two-fold:

1. It is the first time a lawsuit alleging systemic, continuous neglect by the State of Tennessee, in regard to the use of isolation and restraints on children with special needs, has ever been allowed to proceed.
2. If the case is successful, important guidance to public school systems can result. That way, fewer isolations and restraints will occur.

The current system is not working. But we may be able to finally mandate the change our students need to access the free appropriate education guaranteed to them by federal law. No more changing the language to hide the number of isolations the schools use. No more overuse of restraints to contain children whose brains simply work a little differently than other children’s do. No more ignoring what the law says in favor of what is convenient to the schools. No more confusion on behalf of education personnel about what is allowed and what is not. This case could change the way special needs students are treated and taught in Tennessee for the better, and ensure that EVERY child is safe and secure in the classroom.

At the Gilbert Firm, we uphold the laws designed to protect children’s access to education. We are willing to fight for what is right for students. To make an appointment with Tennessee special education attorney Justin Gilbert, or schedule a consultation at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731 or fill out our contact form.

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Recently, the Gilbert Firm won the first judgment ever under the Special Education Behavior Supports Act (SEBSA), Tennessee Code Ann. §49-10-1301 et. seq.  In an East Tennessee case, on 21 occasions, the school surrounded an elementary-school child who has Down syndrome with a blue gym mat.  The school used the mat to create a “fence” around the child, with a stool inside for her to sit.  She was kept inside the mat/fence for nearly 45 minutes on one occasion.

In court, the school system argued this was no different than placing a child in “time out.”  The Gilbert Firm vigorously disagreed, arguing this was a human rights violation, a humiliation for the child in front of her peers, and a legal violation of SEBSA and the Individuals with Disabilities Education Act (IDEA).

The Court agreed.  The United States District Court for the Eastern District of Tennessee found that the “fence was an enclosed area, and the fencings were not a time-out.” I.L. v. Knox Cty. Bd. of Educ., No. 3:15-cv-558, 2017 U.S. Dist. LEXIS 92257, at *106 (E.D. Tenn. June 15, 2017). It awarded the judgment to young I.L., creating the first legal precedent for illegal isolations in the state of Tennessee.

There is a very limited set of situations when isolation of students may be practiced under SEBSA. First, there must be a true emergency. Thus, a situation repeated 21 times does not qualify. Second, positive de-escalation techniques must be attempted first.  Third, the isolation may not last more minutes than the child’s age (e.g. if the child is 5 years old, the isolation may not exceed five minutes).  Fourth, any isolation may not occur in a space of less than 40 square feet.

School should be a safe and supportive environment for all children. School systems must be held accountable for undue use of restraints and isolation techniques. The Gilbert Firm provides counsel to parents of special needs children who have suffered abuse or had their rights violated. To speak with a  Tennessee special education lawyer like Justin Gilbert, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

For the last three years, a Chattanooga family has been litigating the issue of inclusion for their child with Down syndrome.  Justin Gilbert of the Gilbert Firm, along with a team of national and international experts, has been with them at every step. That is why we are so happy to announce that the family has won an important battle for inclusion under the Americans with Disabilities Act and Section 504. As the Times Free Press reports:

“A federal judge on Monday ruled the Hamilton County Department of Education violated multiple federal guidelines protecting students with disabilities when it removed a second-grader with Down syndrome from Normal Park Elementary School in 2013.

In the ruling, federal Judge Curtis Collier said the school district violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, a federal civil rights law prohibiting discrimination against individuals with disabilities.”

This is an important win – not only for the student, but for every student with special needs who seeks a learning environment with their non-disabled peers. Too often, schools earn a reputation for segregating its students with intellectual disabilities. This ruling sets a precedent for other families whose children have been unfairly segregated in Tennessee.

What federal laws were violated?

In 2013, the Hamilton County Department of Education planned to remove a young student (L.H.) from Normal Park Elementary School and placed him in a “comprehensive development classroom” at Red Bank Elementary. L.H., who has Down syndrome, would have been segregated from his friends and peers, and would have been subjected to a less rigorous curriculum focused on life skills, as opposed to working on modified goals tied to state standards.

The family opposed the removal, resulting in a substantial litigation concerning the student’s proper placement. In 2016, the federal judge ruled that the Hamilton County Department of Education violated the IDEA with its plans to remove L.H. from a mainstreamed classroom and place him in a self-contained class in a different school. In Judge Curtis Collier’s own words, “the comprehensive development classroom was ‘more restrictive than necessary’ and… ‘[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][L.H.] could receive a benefit from mainstreaming…. The record is abundantly clear: [L.H.] could, and did, make behavioral and academic progress in a regular-education classroom at Normal Park during kindergarten, first grade and second grade.’”

The Gilbert Firm did not stop there. It argued that L.H.’s rights were violated not only under IDEA, but also the equal rights laws of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. On July 17, 2017, Judge Collier agreed. The Judge ruled that the Hamilton County Department of Education also violated the Americans with Disabilities Act, which prohibits discrimination against people with disabilities, and Section 504 of the Rehabilitation Act, which states “No otherwise qualified individual with a disability in the United States… shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance… [including any] local educational agency, system of vocational education, or other school system.”

Mr. Gilbert told the Press that “The right to belong, the right to inclusion, and the right to avoid exclusion are all American civil rights. We will look forward to being able to work with our county, not against it, so that together we make these rights a reality for kids with special needs.”

This is hard, but important work.  Many other parents of children with intellectual disabilities or other disabilities are fighting these same battles in classrooms throughout Tennessee. If you have need of an experienced Tennessee special education lawyer like Justin Gilbert, or have questions about whether you have a case, please call 888.996.9731, or fill out this contact form. With offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, we are nearby when you need us the most.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]