November 27, 2012

Maine teachers say new restraint rule leads to assaults by students

Educators say a new mandate is making them overly cautious, and the instances of teachers being assaulted by students since the rule took effect have been in the 'dozens.'

By Noel K. Gallagher
Staff Writer

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The teachers union sent a letter to state Education Commissioner Stephen Bowen last week, asking that his office "reopen" the rule, known as Chapter 33, which would allow it to be changed without going through the legislative process.

In recent weeks, the Maine Principals' Association, the Maine School Superintendents Association and the Maine School Boards Association have sent similar letters to Bowen.

"While well intended, the latest version of Chapter 33 and the rules governing physical restraint and seclusion are causing a great deal of confusion and disruption in the classroom," MEA Executive Director Rob Walker wrote in the letter to Bowen.

In March, the U.S. Department of Education published a study that estimated there were 38,792 cases of seclusion or restraint of students during the 2009-10 school year. State statistics on restraint and seclusion, required under the new rule, are filed annually and not yet available.

More than 30 states have passed restraint legislation, and federal legislation has been proposed, said Diane Smith Howard, a disability rights attorney who helped create the new restraint rule in Maine.

She said the concerns that educators are raising are covered by the rule, so no change is needed.

"If you read the rules, if someone is being assaulted, you have the right to use restraints," she said. "This is a training issue, not a rules issue."

Chapter 33 has what are deemed "meaningful protections" for students that fall within the mid-range of 30 states that have similar restraint laws, said Smith Howard, now a staff attorney with the National Disability Rights Network in Washington, D.C.

"It's actually kind of heartbreaking" to see the criticism of the new rule, she said.

The rule came in response to reports of Maine students being restrained inappropriately, said Smith Howard, who worked for the state's Disability Rights Center.

"At the (center), we had lots of examples of kids who got hurt," she said.

Among the complaints were that parents weren't notified of multiple incidents of their children being physically restrained or put in seclusion.

In 2009, a bill to prohibit face-down physical restraint died in a legislative committee. The Maine Department of Education then gathered about 25 educators, children's advocates and disability specialists, who proposed the changes.

It was the first overhaul of the rules on restraint in 10 years, and the first time the Department of Education used a group of stakeholders to reach consensus.

Bowen's spokesman, David Connerty-Marin, said Monday that the commissioner does not intend to reopen the rule.

"These rules were developed by consensus. All of these organizations had a say," Connerty-Marin said. "We're not going to just walk in and overwrite these rules."

"The superintendent's (association) has said that if we don't, they will ask a legislator to do it. That makes sense to us. This needs to be a legislative process," he said. "While we're interested, we're not ready to rush and make changes."

State Sen. Tom Saviello, R-Wilton, said he hopes to change the commissioner's mind at a meeting next week.

If he doesn't, he will introduce emergency legislation to be taken up by February. Otherwise, it will be the 2013-14 school year before any changes are made, he said.

Some educators pointed to New Hampshire's restraint law as a potential model.

New Hampshire's law spells out ways teachers can use low-level physical intervention that falls short of being defined as restraint.

"In Maine, the rule says it's any physical intervention at all," said Amy Chow, an education law attorney for Drummond Woodsum, a law firm that has been working to help school officials understand the rule and give them training. "I think there is a relatively straightforward way to make some changes ... without changing the intent of the law."

Staff Writer Noel K. Gallagher can be contacted at 791-6387 or at:

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