New Law Attempts to Clarify Schools' Restraint Guidelines
by Mike Reynolds
Ability Maine Staff

On February 20th, educators from around the state convened in
Augusta for a legislative hearing about LD 243 - a bill seeking to change new regulations about whether teachers can physically restrain disruptive students.

Sen. Tom Saviello, R-Franklin, filed the bill as an emergency measure at the request of the Maine Education Association (MEA), an organization that represents teachers.

The problem, according to the MEA, is the definition of the word "restraint." Under the new rules, any time a teacher touches a student without the student's permission it is considered restraint (even picking up a child who is having a tantrum falls under this interpretation). The law firm of Drummond Woodsum gave a briefing to a group of school administrators that led many teachers to believe they could be sued by parents if restraint was used on children - unless the children were in imminent danger of hurting themselves or others.

This "imminent danger" clause caused many problems this year for teachers and school administrators. Some educators cited instances in which they had to stop classes because of a single disruptive student. The other students were sent out of the classroom and had to stand in the hall while the teacher attempted to subdue the disruptive student without employing physical contact (such as escorting the student out of the classroom).

One teacher, who teaches in a living-skills program, was afraid to teach students how to brush their teeth, fearing he might need to briefly touch students in order to demonstrate the motions of brushing. He was concerned that even such minimal contact could be interpreted as restraint.

According to Lois Kilby-Chesley, president of the MEA, "Educators can't be left having to debate what is allowed when our students or staff may be in a risky situation."

Some teachers mentioned that students were verbally taunting them, saying things like, "We know you can no longer touch us." In a recording of his Senate testimony, Saviello cited kindergarten students who "have figured out that if they don't want to do something ... they will have a bad spell" on a given day. He also specified that, "Teachers don't want to hurt anybody. Anybody who thinks that is wrong. But teachers cannot teach in the present situation."

But just as enthusiastically as educators pushed for changes to the new restraint law, parents of children with disabilities, disability advocates, and representatives from the ACLU of Maine vehemently opposed changes to the new rules.

Opponents of the changes spoke of the troubling use of restraint on severe and profoundly disabled students. Historically, restraint has been overused in this population. Students have suffered from trauma, heightened anxiety, and post-traumatic stress disorder because of repeated use of restraint. Certain behaviors teachers interpret as problematic are often merely attempts to communicate. For example, children with no speech may resort to hitting their heads to show that they have an earache; such attempts to communicate are often labeled "disruptive" by teachers.

The hearing for the bill lasted more than five hours and the Education and Cultural Affairs Committee held a work session the same day. In early March, the Education Committee of the Maine Legislature approved an amendment to LD 243. The amendment will update the rules while keeping some protection against the use of restraint.

According to Shenna Bellows, the executive director of the ACLU of Maine, "This compromise will help to clarify and update the rules rather than gut them. The Department of Education should take this opportunity to educate administrators, educators, and parents on the rules governing restraints."

LD 243, which was submitted as an Emergency Measure, seems likely to pass both houses of the state legislature, but it is unclear if Gov. LePage will sign the bill. His signature would allow the bill to take effect immediately. If the governor allows the bill to pass without his signature, the bill would not go into effect until 90 days after the legislature adjourns. At this time, the governor states that he will not sign any bills until his plan to help hospitals in Maine that have not received money owed to them by MaineCare passes. Four bills have passed this week without the governor's signature, and some of these were also designated Emergency Measures.

UPDATE: The Bill has passed both chambers of the legislature on 4/2/13.