Ensuring that Children with Disabilities Attend Safe and Supportive Schools
In 2019, four courageous students stepped forward as plaintiffs to file a class action lawsuit 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 unlawful and dangerous use of restraints and seclusion in non-emergency situations.
The Floyd I. Marchus School is a public school operated by Contra Costa County that serves students with serious learning, behavioral and emotional challenges who require individualized education plans (IEPs) in order to receive a free appropriate public education. One of the reasons that students attend specialized schools like this school is because they need highly individualized services and supports in order to learn.
Yet, the Floyd I. Marchus school used a “Level System” behavior system that the students and their families asserted bypassed the student’s individualized education plans and behavior intervention plans and resulted in the use of restraint and seclusion. The suit asserted that these dangerous practices were 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.
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. The 2017-2018 Civil Rights Data Collection Report continued to document the disproportionate impact of these dangerous practices on students with disabilities.
In September 2022, plaintiffs reached a landmark settlement with the State of California and the Department of Education. Under the agreement, the state committed to maintain a higher degree of oversight over the school, train staff on the interventions and supports that can help students, audit the school’s records, and conduct two years of follow-up review.
In June 2023, plaintiffs reached a settlement agreement with the Contra Costa County Office of Education (“CCCOE”) to ensure that students with disabilities who attend the Floyd I. Marchus School (“Marchus”) are provided with the individualized supports and services that they need to learn, and to make sure teachers have the training they need to address behaviors without resorting to restraint and seclusion. The agreement adds to the terms agreed upon in the 2022 settlement and resolves the 2019 lawsuit.
Students across the country continue to be subject to restraint and seclusion. According to the U.S. Department of Education, over 100,000 students are restrained or secluded each year. Several state legislatures, including New York and Connecticut, have recently introduced bills that would prohibit the use of some or all restraint and seclusion techniques and strengthen reporting requirements for greater oversight and transparency.
Superior Court of The State Of California, County Of Alameda
Case Developments and Key Developments
Settlement Reached with the Contra Costa County Office of Education (CCCOE)
The settlement requires CCCOE to cease certain practices and support initiatives promoting a more positive learning environment necessary to achieve the academic and social success of all students. These initiatives include a three-tiered Positive Behavior Interventions and Supports (PBIS) program and a Social Emotional Learning (SEL) curriculum. Both are designed to provide schoolwide and individual guidance to meet the unique needs of each student through tailored, individualized education programs. Additionally, WestEd – a leading educational research, development, and service agency – will provide CCCOE with oversight and guidance throughout the PBIS program and implementation of the SEL curriculum. Over the next two years, WestEd will track and report on progress and further document and address the use of restraint and seclusion. Marchus will also establish a reporting system through which parents may submit requests for an investigation if they have ongoing concerns regarding the use of these practices at the school. The settlement builds on the September 2022 agreement with the California Department of Education.
Settlement Reached with the California Department of Education (CDE)
Under the terms of the settlement agreement, the state will maintain a higher degree of oversight over Marchus, including: Conduct two years of follow-up review of Marchus to ensure best practices are being followed and the safety of students is not compromised through the use of abusive, restrictive, and cruel restraints previously used on students; Audit Marchus’ written documentation of its policies and reports regarding prior incidents during the Follow-Up Review Period; and Provide technical assistance and training for Marchus staff so that they may learn Positive Behavioral Interventions and Supports.
Judge Overrules Demurrers
Superior Court Judge Edward G. Weil overruled two demurrers – one by the Contra Costa County Office of Education, and one by the State of California, State Board of Education, California Department of Education, and Tony Thurmond, in his official capacity as Superintendent of Public Instruction – allowing the case to proceed.
Amended Complaint Filed
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.
- Kerri K., a student at Marchus.
- Jacob K., a student at Marchus.
- Elyse K., Kerri K.’s and Jacob K.’s mother.
“My daughter was eight when she told me about the tactics used to isolate and restrain her as a student at school. I felt betrayed by the staff, and my daughter’s sense of adults as a trusted source of support was fractured. Children with disabilities have a right to the same opportunities as every student, to grow and thrive in an environment where educators lead with safety and in the best interests of our children. This settlement will help prevent further trauma for children at Marchus, and it will demonstrate to my child that she was heard and believed, and that the friends she left behind will be protected.”–Elsye K., Kerri K.’s and Jacob K.’s mother.
- Sara S., a student at Marchus.
- Zena C., Sara S.’s grandmother and legal guardian.
- Annie T., a student at Marchus.Esme T., Annie T.’s mother.
- Tara Ford, Senior Counsel
- Mark Rosenbaum, Robins Kaplan Director
- Kathryn Eidmann, Vice President, Chief of Litigation and Legal Programs
- Ash Rojo, Paralegal/Organizer
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- Press Release – Settlement with Contra Costa County Office of Education, 6/9/22
- Press Release – Settlement with California Department of Education, 9/1/2022
- Press Release – Class Action Filed, 5/15/2019
- Media Coverage:
- EdSource, Final settlement lands in seclusion-and-restraint lawsuit at Concord school, 6/13/2023
- EdSource, A mother fights back after her kids are restrained at school, 9/29/22
- EdSource, Settlement requires state to monitor Contra Costa school that restrained students, 9/21/22
- KQED, Families of Children with Disabilities Settle Lawsuit with Contra Costa County, 9/5/22
- Politico, Democrats seek to lift secrecy surrounding school seclusion and restraint, 6/6/2019
- Capital & Main, Students claim Concord school uses excessive physical restraint, 5/23/2019
- EdSource, Lawsuit challenges use of restraint, seclusion in California special education school, 5/20/2019
- East Bay Times, Students with special needs put in ‘abusive’ restraints, seclusion at Concord school, lawsuit alleges, 5/16/2019
- KGO, Parents suing Concord special ed school after students allegedly restrained, 5/16/2019
- Fox2, Students with special needs allege being physically restrained at Concord school, 5/15/2019
- NBC Bay Area, Parents File Suit Against Concord School Claiming Abuse, 5/15/2019