For those not familiar with the situation in Maine…
Maine’s Department of Education changed the rules on restraint ignoring opposition from schools, educators and parents. As a result Maine’s DOE now has a restraint rule that only allows educators to physically intervene if the student presents an imminent threat of physical harm to self or others.
This is problematic as it does not allow Maine educators to physically intervene to stop a situation from becoming physically dangerous. The rule also does not allow educators to physically move a student who is disrupting a classroom. Any student not wishing to be in class can throw a tantrum, and either hold all the other students hostage to her behavior or force the removal of the entire class. This can result in emotional contagion, and can act as a reinforcement of the aberrant behavior. Educators also cannot physically intervene if the student is destroying property.
The children most affected by this rule have serious destructive and self-destructive episodes that involve direct assaults on others, self-destructive behaviors and destruction of property. These episodes may begin with an initial destruction of property and quickly escalate to serious assaults on self or others. The elapse in time can often be measured in seconds.
Our concern is not the value of the property but the serious and possibly irreparable damage to the child’s relationship with his or her caregivers as they sit idly by during the onset of one of these episodes. When a child perceives the adults who are entrusted with his care and welfare unresponsive to his demonstrations, an escalation of the destructive impulses can ensue until the child finally crosses the threshold where the adults are compelled to interrupt his destruction. Creating the perception in the mind of the child of indifference to his destruction of property or self-injurious gestures is patently neglectful and will likely reinforce and encourage an exacerbation of aberrant behavior. It matters not whether the property being destroyed is valued at $3.00 or $3,000.00, the damage to the child’s relationship with his educators and caregivers and his prospects for success in life is predictable.
There is no social situation where the destruction of public or private property will be tolerated, except for the artificial one DOE decided to create by this regulation. We should all be able to agree that the goal of Education and/or treatment is to prepare and enable children to ultimately achieve success as adults. What a rude awakening it will be when the student is charged criminally for wanton destruction of property once he is beyond the protective cocoon of the classroom (and in the classroom if schools and teachers start calling police and filing charges).
As a result, educators are getting injured and classrooms are being routinely disrupted. For instance, an educational technician was scratched, bitten and thrown against a wall. The ed tech did not touch the child, but rather suffered the injury in order not to break Maine’s physical intervention rules.
As a result of the chaos and assaults this ill-advised rule has produced, four education associations in Maine (Maine Superintendents, Maine School Board Association, Maine Education Association, Maine School Superintendents, and Maine Principals) have asked the state to revise the rule stating that educators and students are being harmed by the rule in increasing numbers.
Things have gotten so bad in the state of Maine, that the legislators have threatened to force the department to reopen the rule.
However, a better route would be for Maine’s government to simply nullifying the rule, by executive order or legislation, as the Department of Education had no authority to enact the rule in the first place.
Why Maine’s DOE restraint rule is outside the scope of its authority:
The powers of an administrative agency are delegated by the legislative branch of government. Maine’s legislature never gave DOE authority to enact a restraint rule or any rule that dictates what local schools, parents and treatment teams could include in an IEP/BP. Maine’s legislature also never gave the DOE authority to dictate how local schools treat, discipline or sanction students.
Supporting Law: Maine Statute: Title 20-A specifically reserves these powers to the local school boards and local administrations stating “It is the intent of the Legislature that the control and management of the public schools shall be vested in the legislative and governing bodies of local school administrative units.”
Maine’s current restraint rules were developed by a stakeholder group through a little-used process called consensus-based rule-making. Basically consensus-based rule-making is a process where like-minded unelected state administrators get together and collectively determine outside of the legislative process whose rights they want to curtail.
In this case, the DOE overstepped its legal authority and took over duties expressly reserved to the local schools. The DOE encroached on the 14th amendment protections of individual autonomy to determine what treatment to receive, or not. The DOE further encroached on IDEA’s mandate that students be entitled to a free and appropriate public education (FAPE).
The Supreme Court has held that a child is deprived of FAPE if the school system has violated IDEA’s procedural requirement. In this instance Maine’s DOE is not allowing licensed, qualified professionals, guardians and parents working with and familiar with the child and his needs to develop an appropriate IEP. The law is that only the licensed professionals and, in the case of minors, parents/legal guardians have the authority to determine what goes into a treatment plan. It matters not what the unelected administrators at Maine’s DOE think. The DOE consensus are outside the student’s treatment team and have no more right to dictate to the team/family what plan is in the student’s best interests than they do telling your physician which medication to prescribe.
Fortunately the fix is easy. Nullify the rule and let the local school districts establish their own policies pursuant to Maine’s already existing statutes.
Read the letters from Maine MEA, Superintendent’s Association, Principal’s Association and School Boards to DOE.
Read stories from the press on this issue: