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Class Action Seeks to End Illegal and Abusive Restraints and Seclusion Practices Used Against Children with Disabilities in California
[May 15, 2019]

Class Action Seeks to End Illegal and Abusive Restraints and Seclusion Practices Used Against Children with Disabilities in California


Four elementary school children with disabilities and their parents and guardians filed a class action lawsuit Monday against the California Department of Education (CDE), directors of the Contra Costa County Office of Education, and staff at Floyd I. Marchus School to challenge the illegal and abusive use of restraints and seclusion in non-emergency situations.

The children assert that these abuses are the direct consequence of the state of California and the CDE's failure to meet their constitutional responsibility for public education by their lack of oversight, intervention, and enforcement of these dangerous interventions.

"No child - particularly ones with disabilities - should be restrained and secluded by their school, as it traumatizes them," said Michael Steinberg, a partner at the law firm of Sullivan & Cromwell LLP that is representing the students and families pro bono. "This lawsuit is about stopping illegal and abusive restraints and seclusion in our schools and to hold accountable those who permit the practices to occur."

This class action, the first of its kind in California state court, is brought by current and former Marchus students on behalf of themselves and a class of similarly situated students and their guardians.

While attending Marchus, the elementary-age Plaintiffs were repeatedly subjected to abusive, dangerous, and trauma-inducing restraints and seclusion in non-emergency situations, including being thrown against the wall, pressed into the floor, and routinely subjected to inappropriate and punitive segregation. The use of extreme behavioral interventions and dishonest record keeping at Marchus has resulted in these young students suffering from physical harm, severe emotional distress, developmental disruption, educational deprivation, and reputational consequences.

"My daughter was picked up and thrown against a wall with her legs pulled apart and her head bent towards the floor for throwing a half-empty water bottle in the general direction of a Marchus staff member," said Elyse K., parent of two of the representative Plaintiffs. "This reality is not only horrifying, but unmistakably present and heartbreakingly real at Marchus. There are so many parents who do not even know that schools like Marchus are still using what is essentially corporal punishment. I plead for all parents to think about their children and demand more from our state to end this abuse now."

"Our Plaintiffs have been segregated in a school that promises to correct student behaviors, but instead subjects them to controlling, punitive restraints that set students back further," reminds Arlne B. Mayerson, Directing Attorney of Disability Rights Education and Defense Fund (DREDF). "Attempting to control behavior through restraint, seclusion and fear is dangerous, ineffective and counterproductive. It must be exposed and stopped. DREDF's work over four decades, advocating for disabled children and their families, has never been more critical to ensure that disabled students receive equal educational opportunities."



This lawsuit asks the court to hold the Defendants accountable for allowing these young students to be subjected to these practices, and to ensure that these students receive the education to which they are entitled, in the least restrictive environment appropriate to their needs, free from the threat of assault, battery, and trauma.

"There should be no safer place in the world for children than their school. But in California, for all too many children with disabilities, their schools are chambers of pain and terror, where unregulated practices of restraints and seclusion do grave physical and traumatic harm," said Mark Rosenbaum, Director of Opportunity Under Law, the impact litigation team at Public Counsel. "The state of California lacks any program of oversight, intervention and enforcement to effectively detect and stop such practices, resulting in not just denial of equal educational opportunities, but the endangering of the lives and well-being of children who all too often internalize the barbaric acts against them as statements from adults that they are deserving of the abuse to which they are subjected. Our suit is filed to rid all California schools of these brutal practices that place children in physical or psychological fear."


Physicians, educators, and government officials have long condemned the use of restraints and seclusion on children, identifying them as ineffective and warning against their traumatizing and dangerous effects. A 2009 report from the United States Government Accountability Office documented hundreds of cases of the use of abusive restraints and found that at least twenty of these cases resulted in the victim's death. Further, these restraints disproportionately affect students with disabilities. According to a 2014 report from the U.S. Department of Education, students with disabilities represented just 12 percent of the national student population, but accounted for 58 percent of those placed in seclusion and 75 percent of those subjected to physical restraint.

Recently, the U.S. Department of Education announced that the Office for Civil Rights (OCR), in partnership with the Office of Special Education and Rehabilitative Services (OSERS), will provide technical assistance and support to schools and their districts to oversee any inappropriate use of restraint and seclusion in schools.

The complaint is available here: http://www.publiccounsel.org/tools/assets/files/1169.pdf

ABOUT

About the Disability Rights Education & Defense Fund (DREDF): Founded in 1979, DREDF is a leading national civil rights law and policy center directed by individuals with disabilities and parents who have children with disabilities that works to advance the civil and human rights of people with disabilities through legal advocacy, training, education, and public policy and legislative development. Learn more about DREDF's work at dredf.org

About Public Counsel: Public Counsel is the nation's largest pro bono law firm - advancing impact litigation, pursuing legislative change, and providing direct legal services that reach more than 30,000 people every year in California and across the nation. Founded in 1970, Public Counsel strives to achieve three main goals: protect the legal rights of disadvantaged children; represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation. Learn more: www.publiccounsel.org


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