Wednesday, October 26, 2016

Another Isolated Incident: How Washington’s Special Education Reform Movement Failed to Keep Children Safe

This article will explain the history and impact of the actions by Washington State’s special education reform movement on the issue of restraint and isolation.

[I originally had not intended to publish this piece (at least not without the attached policy analysis) but recent data from the Office of the Superintendent of Public Instruction has convinced me otherwise. This piece is not meant to be combative; I am simply far too tired and far too frustrated with the current state of affairs.]
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Back in December 2014, I attended a legislative forum, a place designed for legislators to understand what ordinary people were concerned about with regards to education, where I learned of the efforts by Special Needs PTAs and Washington Autism Advocacy Alliance to advocate for changes in how restraint and seclusion was regulated in this state. I do not remember who asked about restraint and seclusion first, but when I mentioned it to the legislators there (Representatives Litzow, Hunter, and Senn) they mentioned two things: 1) they did not believe (or know if) it was a state issue but rather a local issue and 2) that they had never heard of it before. Someone, I believe representing WAAA, talked with Senator Litzow later that night and handed him an already drafted bill. It was at this point I felt the fight against restraint and seclusion was at the state level, not the district level, which I believed was a Sisyphean task of endless testimony and wrangling of disparate people community organizing. Come the 2015 legislative session, the battle between the institutions (WSSDA et.al) and parent activists had been set up.

Trouble was, neither side was exactly ideal in how it presented the issue. On WSSDAs side, they presented a horrific “reality” where “animalistic” students with disabilities (no doubt they also racialized this)  constantly assaulted teachers and needed to be controlled, almost as if lamenting the requirement for the most bare minimum amount of inclusion defined under Section 504 and the Individuals with Disabilities Education Act (IDEA). On the parent activist side, we encountered a peculiar construction of a helpless white child whose entire existence must be pitied, the poor souls who can’t truly live in our world, but must be tolerated by the saintly teachers who do not outright abuse them. Representing a third way were many disabled students of color opposing the bill because either it did not offer enough protections or they were unaware that it was a reform, if, as it turns out, incredibly small (it was unclear from their testimony but they were condescended to nonetheless) and me—a white, disabled student—who supported the bill with serious reservations and a nihilistic outlook on the entrenched system we were fighting. I do not want to claim that I understood what their analysis was; from what I remember they presented a situation where school staff consistently fail to deescalate stressful situations, resort to restraint and seclusion quickly, and traumatize most especially the restrained student, but the entire classroom as well. For my part, I presented legislators with restraint and seclusion as racial and disability equity issues that reflected poorly on a state that prides itself on diversity. Neither of these views came close to the two predominate narratives of fear and/or pity.

These narratives shaped the eventual legislation and the immediate backlash it faced from Randy Dorn, Doug Gill, the rest of OSPI, and the old guard. In between passage of SB 1240, a new bill was introduced with WSSDA’s interests at heart that would strip the legislation of even the most basic reforms it was proposing; this one was almost passed out of committee. Before I go into the problems with OSPI, there was something else was amiss, and that context is necessary: the proponents of the bill legitimately thought SB 1240 would completely stamp-out “excessive use.”

The legislation specified that restraint and seclusion could be used only in cases where a student is posing an imminent threat to others, self, and property. Though easily exploited, this did not raise concern for me originally (“why would reform advocates trust a system they are struggling with?” I thought), but it became apparent after talking with legislators that they felt the section ending the planned use of restraint and seclusion would be enough. I should not have to explain how completely ridiculous this assumption; if there is exploitable language that people can use to justify restraint post-hoc, they will. Systemic change does not come from tweaks in language. Consider that children with disabilities and especially disabled children of color are constantly disbelieved and assumed to be inherently violent/”uncontrolled”/etc.: this is an enormous loophole for agents of ableist, racist systems (teachers included) to exploit.

As such, it can only be concluded that by not listening to the concerns of disabled students that there was something very fundamentally wrong with the entire special education system that restraint and seclusion was merely a tool in, advocates and legislators created what I warned to be ineffectual legislation, and that, after many self-congratulating handshakes, photo-ops, and pats on the back, the politicians and advocates would declare the problem solved—if only the students would cooperate, of course. And if these students did not cooperate? Well that would mean they deserved it all along, in the view of the law.

There was yet another problem pre-OSPI legislative efforts: the anti- restraint and seclusion side had unnecessarily ceded ground by framing restraint as sometimes necessary, thus imposing a deserving/undeserving binary from which to exploit. Referenced in the previous paragraph, SB 1240 created a new way of determining who was deserving of restraint and seclusion. In society, for some reason ignored in the universe of SB 1240, all restrained and isolated students are determined to be deserving of it. It does not matter what they did—the fact they are in such a position proves they did something to be in it, right? Perhaps if you have never been told repeatedly that you were in the wrong after being forced to the ground by two or three adults, have your shoes taken off, and forced into a small room closed by door sealed with an electromagnet after being placed into a situation where resistance was the only possible option, this concept may be hard to grasp, but let me be clear: students can be absolutely in the right and still experience violence.

If you create this binary of those who deserve to be restrained and isolated and those who do not, you will find mostly one side of that binary (the deserving side) will be occupied and it will be disproportionately students of color, intellectually disabled students, nonspeaking students, traumatized students, and gender-variant/nonconforming/transgender students. In other words, because the anti- restraint and seclusion movement never challenged the basic assumption that there are some students who “deserve to be restrained,” in the words of Jess Block-Neren of Autism Speaks, all students with disabilities are bound to suffer.

There may be those who view these warnings as something of a “slippery slope” fallacy (indeed, I believe that is what happened), but I contend these people may have too much faith in the law, particularly how it is applied. Laws tend to legislate morality in some way or another. Whether it corresponds to an individual person’s (or groups’) morality does not matter; in some way or another, the law is considered the arbiter of what is “wrong” and what is “right.” Therefore, if someone feels right/just it will feel legal and vice versa. As an unrelated example, take the controversial issue of citizen recording of police activities: police officers (agents of the law) mostly feel this is wrong and treat it as illegal as evidenced by the arrests and harassment of citizen journalists for recording police activities; however, many people feel it is right and therefore legal. In actuality, the law is mostly unclear, except for a few localities and states where they explicitly allow/disallow it. The law does not determine what people feel is the law. Making it explicitly clear that law does not support the use of restraint and isolation is a necessity if they are to stop; this could have come most appropriately in the rules-making process (OSPI’s role), but it did not.

[This is picture of one such photo-op. I later took this chance to tell Governor Inslee to veto Joel’s Law. He had signed it, without press coverage, a few days earlier. The description given is “Governor Jay Inslee signing legislation ending the planned use of isolation and restraint resulting from the dedicated work by [sic] advocates for children.”]

The OSPI hearings were an enormous challenge. First, OSPI came out with rules directly contradicting the limited regulations presented in SB 1240, including a pseudo-AIP that made it into the eventual rules. (A detailed analysis of the current restraint and isolation law is being made.) Advocates, including Representative Pollet, responded with a kind of disbelief-fury. Perhaps it was my continued depression “negative outlook”, but this outcome I had more or less expected. At OSPI, we had a leadership with a deep contempt for disabled students, IDEA, and parent activists (and no doubt the rest of kyriarchy).

In August, there was a hearing on the new rules. I did not come prepared, having already scripted my anti- restraint and isolation position as of now and more than a bit of executive dysfunction (remember, I’m still disabled!). What eventually did get said is more or less the argument presented above, complete with a hypothetical situation grounded in personal experience: that unless specific protocols/procedures were made to regulate what teachers can do with regards to restraint and isolation, more and more students would be put into the “deserving” part of the binary. Others presented just how much what OSPI proposed disregarded the law, but it was mostly ignored.

After receiving this pushback, they announced another hearing. Still, OSPI refused to use their rule-making powers to help put an end to restraint and isolation.  Meanwhile, the fight against safe schools, led by principals and school districts, sadly enough, gained more traction. Then in November with more or less the same rules but armed with testimony from ableist speakers representing schools/school districts. Parent activists alleged that Doug Gill had told certain members to come support his rules, but, in my opinion, it did not make a difference. At this hearing, a group that would later form Students Against Abusive Schools (in the process of developing new campaigns) decided to hold a silent protest and a small rally with chants after.

Come January, the final rules were adopted and I was sent a physical copy of the rules along with some screenshots of emails that they could have emailed me. The law was left truly unchanged, but the Governor sure looks nice in that photo.

The special education reform movement failed and it failed tremendously. Now, I more than anyone know just how difficult advocacy, particularly reform­-based advocacy, is and I do not want to diminish the work of tireless advocates fighting for justice. I do want to question strategy, however. For what reason did we cede ground? For what reason did we reify racism and ableism rather than try to undermine it? What reason did we have to put so much faith in a system we already knew was abusing (and killing) children? Why did we not make coalitions with anti-racist, anti-ableist, and LGBTQ rights groups?

 Restraint and isolation is a multi-group issue, as data from the Office of Civil Rights at the Department of Education has shown: it primarily targets students with disabilities and Black, Indigenous, and/or Latinx students. Not only that, but Black, Indigenous, and/or Latinx students with disabilities are restrained and isolated at an even higher rate. Because of this, advocacy surrounding restraint and isolation requires an approach that centers an intersectional analysis. In addition, the fact that the movement has emerged is mostly nondisabled parents need to be addressed by meaningfully including the voices of those who have experienced restraint and seclusion not by phone call (or rather not only by phone call), but in the seclusion rooms themselves—disabled self-advocates and disability justice activists.

For anti- restraint and isolation advocacy to accomplish anything, it must acknowledge the realities of the school-to-prison pipeline; criminalization/pathologization of Black, Indigenous, and/or Latinx youth; the violence of/as a result of ascribing different psychiatric labels (ex. Oppostional Defiance Disorder/ODD) and its intersection with the pathologization/criminalization of Black, Indigenous, and/or Latinx youth—and it needs to act accordingly. Otherwise, we will continue to fail. Another year of children being shoved and locked into small rooms. Another year of trauma for students with disabilities. Another year of restraint and isolation being used to violently uphold systemic racism and ableism. And then another year. And another year. I, myself, have waited for over a decade for these practices to finally stop and I am not keen to wait another. 

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