2015 ELA Annual Conference

November 5, 2015

1

BIP or SRO? Which Takes Precedence When a Student with Disabilities Exhibits

Aggressive Behavior?

Elizabeth A. Shaver, J.D., Assistant Professor

University of Akron School of Law

Janet R. Decker, J.D., Ph.D., Assistant Professor

Indiana University School of Education

I. Introduction.

A. After an 11-year old girl with developmental disabilities struck a classmate, a

School Resource Officer (SRO) handcuffed, arrested, and transported her to a

juvenile detention facility.1 The girl was then placed in a small, empty cell for

several hours, and the SRO did not notify the girl’s mother of the arrest. The girl’s

mother later filed a lawsuit against the SRO and others in which she claimed the

SRO’s actions violated the Fourth and Fourteenth Amendments.

B. Students with disabilities are at a much higher risk of entering the juvenile justice

system, particularly as a result of conduct that takes place at school.2 Several

recent cases highlight the complex issues that arise when a student with

disabilities engages in aggressive behavior at school.3

C. In most cases, the child’s behavior is not a new or unanticipated behavior. As was

true in the case described above, the school district already may have developed

and implemented a Behavior Intervention Plan (BIP) to address the student’s

behavior.4

D. Litigation involving SROs and students with disabilities has increased because of

two trends in education.

1. The first trend is the increasing presence of SROs, defined as “certified

peace officers employed by local or county law enforcement agencies and

assigned to a particular school or schools,”5 on school grounds.

2. The second trend in education is the increasing use of BIPs to address the

behavior of students with disabilities.

1 J.H. ex. rel. J.P. v. Nation, 61 F. Supp. 3d 1176 (D.N.M. 2015).

2 “Students With Disabilities & the Juvenile Justice System: What Parents Need To Know,” pacer.org,

http://www.pacer.org/jj/pdf/JJ-8.pdf (last visited May 20, 2015). 3 See. e.g., C.B. v. City. of Sonora, 769 F.3d 1005 (9

th Cir. 2014); Thomas v. Barze, 57 F. Supp. 3d 1040 (D. Minn.

2014); E.C. v. Cty. of Suffolk, 882 F. Supp. 2d 323 (E.D.N.Y. 2012). 4 Nation, 61 F. Supp. 3d at 1183.

5 Spencer C. Weiler & Martha Cray, Police At School: A Brief History and Current Status of School Resource

Officers, 84 THE CLEARING HOUSE 160 (2011), quoting C. Lavarello & K.S. Trump, To Arm or Not to Arm?, 183

AMERICAN SCHOOL BOARD JOURNAL 32 (2001).

2

a. In 1997, Congress amended the Individuals with Disabilities

Education Act (IDEA) to incorporate behavioral intervention

techniques, including the use of BIPs to address undesired behavior.6

3. As discussed in more detail below, a BIP is a written plan that describes

the particular behavioral interventions to be implemented when a child

exhibits problem behavior. The overall goal of a BIP is to reduce the

frequency of problem behavior and increase the frequency of appropriate

behavior.7

4. While BIPs had been used in clinical settings for decades, their use in

school settings began a little more than fifteen years ago, after the 1997

amendments to IDEA went into effect.8 Over the years, the use of BIPs in

school settings has steadily increased.9

E. The existence of a BIP to address behavior of a child with a disability does not

foreclose the intervention of an SRO. However, as several recent cases

demonstrate, parents expect that school personnel will adhere to the contents of a

child’s BIP when problem behavior arises. When parents instead discover that

SROs have physically restrained and sometimes arrested their children, many

parents become angry and sue.10

1. The plaintiffs in these cases assert a number of claims. Some allege that

the SRO violated the child’s constitutional rights by applying force or

arresting the child.11

Some plaintiffs allege that the defendants violated

federal statutes such as the Americans with Disabilities Act or the

Rehabilitation Act of 1973.12

Others allege negligent training or

supervision claims, contending that the district failed to appropriately train

SROs.13

Essentially parents assert that the child’s BIP takes precedence

over any law enforcement measures.14

6 Individuals With Disabilities Education Act of 1997, Pub. L. No. 105-17, 111 Stat. 37; 20 U.S.C.

§1414(d)(3)(B)(I) (2012); 20 U.S.C. §1415(k)(F) (2012). 7 Perry A. Zirkel, Case Law for Functional Behavioral Assessments and Behavior Intervention Plans: An Empirical

Analysis, 35 SEATTLE L. REV. 175, 178 (2011). 8 Terrance M. Scott & Debra M. Kamps, The Future of Functional Behavioral Assessment in School Settings, 32

BEHAVIORAL DISORDERS 146-57 (2007). 9 Scott, supra note 8, at 146.

10 See. e.g., C.B. v. City of Sonora, 769 F.3d 1005; Thomas v. Barze, 57 F. Supp. 3d 1040; E.C. v. Cty. of Suffolk,

882 F. Supp. 2d 323; J.H. v. Nation, 61 F. Supp. 3d 1176; J.H. v. Bernalillo Cty., 2014 WL 3421037 (D. N.M., Jul.

8 2014). 11

See. e.g., C.B. v. City of Sonora, 769 F.3d 1005; Thomas v. Barze, 57 F. Supp. 3d 1040; E.C. v. Cty. of Suffolk,

882 F. Supp. 2d 323; J.H. v. Nation, 61 F. Supp. 3d at 1183. 12

E.C. v. Cty. of Suffolk, 882 F. Supp. 2d at 340-43. 13

Id.; J.H. v. Nation, 61 F. Supp. 3d at 1191. 14

See J.H. v. Bernalillo City., 2014 WL 3421037 at *12.

3

F. This presentation will review the recent cases and examine several important

issues. Specifically, the presentation will consider:

1. The training SROs might need with regard to special education law and

the use of BIPs to treat that behavior;

2. Whether SROs should—or, given privacy laws, even can—know the

identity of students who have BIPs; and

3. Whether SROs should review specific BIPs in order to understand the

recommended behavioral interventions.15

G. The presentation also will consider appropriate parent-school communication

when a child’s behavior could lead to the intervention of an SRO. The

presentation will suggest protocols to help guide school officials to determine in

any particular situation whether to implement the BIP or call for the SRO.

II. Background Regarding Use of School Resource Officers in the Nation’s Public

Schools.

A. While SROs have been in use for several decades, the presence of SROs increased

rapidly in the 1990s, primarily in response to increased fear about school

shootings.16

B. Various federal legislative initiatives spurred the hiring of SROs.

1. The Violent Crime Control and Law Enforcement Act of 1994 provided

for, among other things, grants to establish programs of “proactive crime

control and prevention” between officers and young persons in the

community.17

a. In 1994, the U.S. Department of Justice created the Office of

Community Oriented Policing Services (COPS) to help implement

the grant program contained in the Act.18

2. A 1998 Amendment to the Omnibus Crime Control and Safe Streets Act

of 1968 provided a federal definition of SROs and further encouraged the

use of school resource officers.19

15

Lynn M. Daggett, Student Rights: Book 'em?: Navigating Student Privacy, Disability, and Civil Rights and School

Safety in the Context of School-Police Cooperation, 45 URB. LAW. 203 (2003). 16

Weiler, supra note 5, at 161; “To Protect & Educate: The School Resource Officer and the Prevention of

Violence in Schools,” at 9 (NASRO Publication 2012) (available at https://nasro.org/cms/wp-

content/uploads/2013/11/NASRO-To-Protect-and-Educate-nosecurity.pdf). 17

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §1701(d)(7), 108 Stat. 1796. 18

The COPS Office: 20 Years of Community Oriented Policing (U.S. Dep’t. of Justice 2014) (available at http://ric-

zai-inc.com/Publications/cops-p301-pub.pdf) (hereainafter “20 Years of Community Oriented Policing”). 19

Pub. L. No. 105-302, 112 Stat. 2841.

4

3. In 1999, the Department of Justice began a “COPS in Schools” grant

program that dramatically increased the hiring of SROs.20

a. Between 1999 and 2005, the COPS in Schools program provided

nearly $724 million in grant money to hire SROs.21

b. Federal grant money led to the hiring of 6,500-7,200 SRO positions

between 1999 and 2005.22

c. Grantees typically were awarded a three-year grant to fund an SRO

program.23

At the end of three years, it was anticipated that the local

enforcement agency would be able to continue to fund the position

using a variety of sources other than the federal grant money.

d. The grant money under the COPS in Schools program ended in

FY2005.24

The decline in grant money led to a slight decline in the

reported number of SRO positions.25

4. After the December 2012 school shooting in Newtown, Connecticut,

Congress did appropriate monies to fund SRO positions. In September

2013, the Department of Justice announced a $45 million program to fund

an additional 356 SRO positions in the nation’s schools.26

C. The SRO’s Roles and Responsibilities.

1. The SRO has been described as a “new type of public servant: a hybrid

educational, correctional and law enforcement officer.”27

2. SROs are “certified peace officers employed by local or county law

enforcement agencies and assigned to a particular school or schools.”28

20

20 Years of Community Oriented Policing, supra note 18, at 4. 21

Id. at 5. 22

Barbara Raymond, “Assigning Police Officers to Schools,” at 1; U.S. Department of Justice Community

Orienting Policing Services Office (2010) (available at http://ric-zai-inc.com/Publications/cops-p182-pub.pdf)

(placing the number at 6,500); Nathan James & Gail McCallion, School Resource Officers: Law Enforcement

Officers in Schools, at 7, Congressional Research Service Report No. 7-7500 (June 26, 2013) (placing the number at

7,200). 23

Raymond, supra note 22, at 26. 24

James, supra note 22, at 7. 25

James, supra note 22, at 5 (the number of reported SRO positions in 2007 declined by 800 from the number

reported in 2003). 26

Fox News, Obama administration to allocate $45M for cops in schools,

http://www.foxnews.com/politics/2013/09/28/obama-administration-to-spend-45m-on-cops-in-schools/. 27

See James, supra note 22, at 2. 28

Weiler, supra note 5, at 160, quoting C. Lavarello & K.S. Trump, To Arm or Not to Arm?, 183 AMERICAN

SCHOOL BOARD JOURNAL 32 (2001).

5

a. SROs should not be confused with school security guards, whose

primary responsibility is monitoring school entry and exit points.29

b. Nor should the SRO be confused with a law enforcement officer who

is only sporadically in the school building. An SRO’s primary

assignment is to be at school, and the SRO is a “constant” presence

on school grounds.30

3. The SRO’s duties have been described as a “triad model” under which the

SRO has three main roles: law enforcement officer, law-related counselor,

and law-related education teacher.”31

a. As a law enforcer, the SRO handles school-related matters that police

traditionally would have handled, including off-campus activities that

involve students, making arrests or issuing citations on campus for

particular conduct, and taking action against unauthorized persons on

school grounds.32

b. As a law-related counselor, the SRO often will assist in resolving

issues that might not necessarily be law violations (e.g. bullying or

disorderly conduct, conflict between students). The SRO also may

connect at-risk students to needed services and organizations, such as

guidance counselors or social workers.33

c. As an educator, the SRO can teach courses on policing and

responsible citizenship, which may include presentations on topics of

drug abuse or gang violence.34

4. Federal law contains two definitions of an SRO.35

Each definition

incorporates the triad model and defines the SRO’s role to include not just

law enforcement activities, but also crime prevention efforts and education

of students in crime awareness and prevent and conflict resolution.36

29

Martha Cray & Spencer C. Weiler, Policy to Practice: A Look at National and State Implementation of School

Resource Officer Programs, 84 THE CLEARING HOUSE 164, 167 (2011); see also

http://test.ncdjjdp.org/cpsv/school_resource_officer.html (SRO definition posted on the website of the Center for the

Prevention of School Violence). 30

Cray, supra note 29, at 167. 31

Kerrin C. Wolf, “Arrest Decision Making by School Resource Officers,” 12 YOUTH VIOLENCE AND JUVENILE

JUSTICE 137, 138 (2014); To Protect & Educate, supra note 16. 32

James, supra note 22, at 2. 33

Raymond, supra note 22, at 2. 34

James, supra note 22, at 7. 35

20 U.S.C. §7161(11) (2012); 42 U.S.C. §3796dd-8 (2012). 36

James, supra note 22, at 3.

6

5. Although the triad model is the proposed model for SRO responsibilities,

several studies have shown that SROs spend a majority of their time in

law enforcement activities.37

a. In a 2005 national assessment of SRO programs, SROs indicated that

they spend approximately 20 hours per week engaged in law

enforcement activities, 10 hours a week engaged in advising or

mentoring students, and 5 hours a week engaged in teaching.38

D. SROs Are a Constant Presence in Many of The Nation’s Public Schools.

1. In a survey of the nation’s public schools for the 2007-2008 school year,

40% of rural high schools and 68% of urban high schools reported that a

fulltime law enforcement officer was present in the building.39

a. Principals in 21.1% of all of the nation’s schools, including all

elementary and secondary schools, reported the presence of a fulltime

police officer at school.40

b. Over 93% of those officers wore uniforms or other identifiable

clothing while at school.41

Over 81% of those officers carried a

firearm at school.42

2. For the 2009-2010 school year, 62% of public high schools and 45% of

public middle schools reported that security guards, security personnel,

SROs or non-SRO law enforcement officers were assigned to the building

on a fulltime basis.43

a. For the 2009-2010 school year, 63.3% of public high schools reported

the presence of security guards, security personnel or law

enforcement officers who “routinely” carried a firearm at school.44

37

David C. May & George E. Higgins, The Characteristics and Activities of School Resource Officers: Are

Newbies Different than Veterans,” 11 JOURNAL OF POLICE CRISIS NEGOTIATIONS 96, 98 (2011), citing D. C. May,

et. al., “School Resource Officers as Community Police Officers: Fact or Fiction,” 4 LAW ENFORCEMENT

EXECUTIVE FORUM 173-188 (2004); Chonmin Na & Denise C. Gottfredson, “Police Officers in Schools: Effects on

School Crime and the Processing of Offending Behaviors,” 30 JUSTICE QUARTERLY 619, 633 (2013). 38

Peter Finn & Jack McDevitt, National Assessment of School Resource Officer Programs Final Report (National

Criminal Justice Research Service, March 2005) (available at

https://www.ncjrs.gov/pdffiles1/nij/grants/209273.pdf). 39

Na, supra note 37, at 633. 40

Id. at 632. 41

Id. at 633. 42

Id. 43

See Table 233.70 of the Digest of Education Statistics, available at

http://nces.ed.gov/programs/digest/d14/tables/dt14_233.70.asp. 44

Id.

7

3. In the 2011-2012 school year, 57.6% of the nation’s public secondary

schools reported that police or “security personnel” were in school on a

daily basis.45

a. Just over 70% of public schools with enrollment of between 1,000

and 1,500 students reported having police or security personnel on

site as a daily presence.46

b. In schools where enrollment exceeded 1,500 students, police or

security personnel were present on a daily basis in 90% of the

nation’s public schools.47

E. Training of SROs.

1. A successful SRO program has at least two important requirements.48

First, the officers chosen must be able to effectively work with children,

particularly adolescents.49

Second, the officer should receive appropriate

training, which might include training about, among other things, special

education law.50

2. SROs may attend training courses that are operated by state or national

organizations. The National Association of School Resource Officers

(NASRO), an organization that was founded in 1991, provides a great deal

of training. NASRO provides both basic and advanced training of

SROs.51

The Basic Course is a five-day, 40-hour training course for SROs

with less than two years’ experience.52

The Advanced Course is a three-

day, 24-hour course for SROs.53

a. The federal COPS program allows grant-funded SROs to take the

NASRO courses free of charge.54

45

See Table 233.50 of the Digest of Education Statistics, available at

http://nces.ed.gov/programs/digest/d14/tables/dt14_233.50.asp. 46

See Table 233.60 of the Digest of Education Statistics, available at

http://nces.ed.gov/programs/digest/d14/tables/dt14_233.60.asp. 47

Id. 48

See Testimony of Mo Canady, Executive Director of the National Association of School Resource Officers,

before Committee on Education and the Workforce, February 27, 2013 (“I cannot emphasize enough how critical it

is for officers to be properly selected and properly trained to function in the school environment.”). 49

James, supra note 22, at 12. 50

Weiler, supra note 5, at 161. 51

COPS Hiring Program School Resource Officer Scholarship Opportunity for NASRO Training (U.S. Dep’t. of

Justice Office of Community Oriented Policing Services Fact Sheet September 2014) (available at

http://www.cops.usdoj.gov/pdf/2014_CHP-SRO-FactSheet3_092613.pdf) (hereinafter “2014 Training Fact Sheet”). 52

See https://nasro.org/training/nasro-training-courses/. 53

Id. 54

See 2014 Training Fact Sheet, supra note 51; FY2013 COPS Hiring Program School Resource Officer

Scholarship Opportunity for NASRO Training (U.S. Dep’t. of Justice Office of Community Oriented Policing

Services Fact Sheet September 2013) (available at http://www.cops.usdoj.gov/pdf/2013_CHP-SRO-

FactSheet3_092613.pdf ).

8

b. NASRO has publicly stated that its training materials provide SROs

with information about the needs of students with disabilities and

special education laws.55

i. NASRO identifies the topic of special education as a

“critical” training topic for SROs and states that its training

courses include “extensive information on the topic.”56

ii. NASRO also states that its training “helps SROs

understand how special needs children and their behaviors

are different from those who don’t have special needs.”57

iii. NASRO further states that its materials “provide[] SROs

with information on special education laws, regulations and

policies, including the Individualized Education Program

(IEP) document that schools create for each special

education student. Typically, the IEP for a student known

to have behavior issues clearly specifies how educators will

respond to such issues.”58

iv. However, in spite of several requests, NASRO refuses to

supply copies of any of its training materials.59

c. Twenty-two states have state statutes that require SROs to be trained

and/or certified, but most states do not specify curriculum or training

guidelines (although they may designate to particular administrative

agencies or a board the responsibility to develop training material or

curricula).60

55

See NASRO Statement on Police Involvement in School Discipline (available at https://nasro.org/news/nasro-

updates/nasro-position-statement-police-involvement-student-discipline/). 56

Id. 57

Id. 58

Id. 59

Emails from Elizabeth A. Shaver and her research assistant directed to Mo Canady, Executive Director of

NASRO, have gone answered. 60

ALA. CODE §16-1-44.1 (West) (2015) (requiring certification from Alabama Peace Officers’ Standards and

Training (POST) Commission); ARIZ. REV. STAT. §15-155 (West) (2015) (allowing the assignment of a peace

officer trained and certified by the Arizona POST board); CAL. EDUC. CODE §35021.5(a) (West 2015) (school police

reserve officer shall complete prescribed training) CAL. EDUC. CODE §38000 (West 2015) (school chief of police

must have completed peace officer training program); CAL. EDUC. CODE §38001-5 (West 2015) (school security

officer shall complete training); CONN. GEN. STAT. §7-294x (West 2015) (POST council shall provide training);

CONN. GEN. STAT. §10-244a (West 2015) (training for school security personnel in possession of a firearm); GA.

CODE ANN. §20-8-5 (West 2015) (requiring certification by POST Council after completing basic training); IND.

CODE ANN. §20-26-18.21 (West 2015) (defines an SRO as one who has completed minimum 40 hours of certified

SRO training); KY. REV. STAT. §158.441 (West 2015) (officer must have received specialized training); LA. REV.

STAT. 17:416:19 (2015) (officer to be certified by national or state organization); MD. EDUC. CODE §4-318 (West

2015); MISS. CODE ANN. §37-7-321 (West 2015) (school security personnel must have basic law enforcement

training); MO. REV. STAT. 590.205 (West 2015) (authorizing the POST commission to established minimum

9

i. In addition, it appears that many state agencies direct

trainees to courses offered at police/juvenile justice

academies or local colleges or universities.61

d. A few state statutes describe the type of training an SRO should

receive.

i. For example, a Missouri statute states that SROs should

receive training regarding “legal operations within an

education environment, intruder training and planning,

juvenile law, and any other relevant topics relating to the

job and functions of a school resource officer.”62

ii. A Texas statute describes a training curriculum that would

include the following topics:

child and adolescent development and psychology;

positive behavioral interventions and supports,

conflict resolution techniques, and restorative

justice techniques;

de-escalation techniques and techniques for limiting

the use of force, including the use of physical,

mechanical and chemical restraint;

the mental and behavioral health needs of children

with disabilities or special needs; and

mental health crisis intervention.63

standards for training instructors and programs); N.C. GEN. STAT. 162-26 (West 2015) (establishing volunteer SRO

program with power of arrest, but requiring training); N.J. REV. STAT. 18A:17-43.1 (West 2015) (school resource

officer must be trained); N.J. REV. STAT 52:17B-71.8 (police training commission shall develop a training course);

N.Y. EDUC. LAW §2801-a (McKinney 2000) (boards of education must ensure that school safety officers are

adequately trained); 24 PA. CONS. STAT. §7-778 (West 2015) (school police officer must successfully complete

training); R.I. GEN. LAWS §16-21-24 (West 2015) (school safety plans must ensure that school safety officers are

adequately trained); S.C. CODE §5-7-12 (2015) (school resource officers must have completed national or state basic

training); TENN. CODE ANN. §49-6-4217 (West 2015) (school resource officers must complete training, specified to

be 40 hours within the first twelve months and a minimum of 16 hours per year thereafter); TEX. CODE §1701.263

(West 2015) (district must have more than 30,000 students to employ officers); TEX. CODE §1701.262 & §1701.263

(West 2015) (setting standards for training); VA. CODE ANN. §9.1-110 (West 2015) (officers must be certified). 61

See, e.g., http://leic.tennessee.edu/sro-training (website of the Law Enforcement Innovation Center of the

University of Tennessee offering SRO training); http://ncja.ncdoj.gov/5673.aspx (website of the North Carolina

Justice Academy offering SRO training); http://www.fcpti.com/fcpti.nsf/pages/SROPD (website of Florida Crime

Prevention Training Institute offering SRO training); https://www.southwesterncc.edu/news/12-attend-

scc%E2%80%99s-first-basic-school-resource-officer-training-program (courses offered at Southwestern

Community College). 62

MO. REV. STAT. §168.450 (West 2015). 63

TEX. CODE §1701.262(c) (West 2015).

10

e. In other states, state-funded “school safety centers” have been created

to, among other duties, help to develop curricula and training

materials for school resource officers.64

f. In addition, some state statutes make reference for the need to train

SROs with regard to mental health or behavioral issues.

i. Connecticut, for example, requires that SROs receive

training in “nationally recognized best practices to prevent

students with mental health issues from being victimized or

disproportionately referred to the juvenile justice system,”

but only if federal funds are available to pay for such

training.65

ii. Massachusetts requires training of SROs and specifically

notes that, when selecting SROs, the employer may give

special preference to candidates with specialized training,

including training in “behavioral health disorders in

children and adults.” 66

3. It is not clear from available training materials that SROs receive

sufficient information about the behavioral issues of students with

disabilities and the use of BIPs to address certain behavior.

a. A guide published by the Department of Justice’s COPS program in

2005 did not reference special education or behavioral issues of

students with disabilities at all. The guide only obliquely referred to

the need to train SROs in “child development and psychology” and

“handling especially difficult students.”67

b. A School Resource Officer Program Guide published in 2004 that is

available on the website of the Virginia Department of Criminal

Justice Services contains a multi-page recitation of the various IDEA

provisions, including disciplinary measures.68

The document itself,

however, does not make any attempt to link its description of IDEA’s

legal requirements to the work of SROs or otherwise describe the use

of behavioral interventions to treat behavior of students with

disabilities.

64

COLO. REV. STAT. §24-33.5-1803; KY. REV. STAT. ANN. §158.442 (West 2015); MD. CODE ANN. § 7-1502 (West

2015); OR. REV. STAT. §339.331 (West 2015). 65

CONN. GEN. STAT. §17a-22bb (West 2015). 66

71 MASS. GEN. LAWS §37P (West 2015). 67

Peter Finn, et. al., “A Guide to Developing, Maintaining and Succeeding With Your School Resource Officer

Program (COPS publication) (June 2005) (available at

http://www.popcenter.org/Responses/school_police/PDFs/Finn_et_al_2005.pdf). 68

The Virginia School Resource Officer Program Guide (2004 edition) (available at

http://www.dcjs.virginia.gov/forms/cple/sroguide.pdf).

11

c. A 2001 curriculum guide published by the California Commission on

Peace Officers Training and Standards specifically identified that

SROs need an “understanding of how special education

classifications and children with special needs and how this impacts

the actions of the SRO.”69

i. The guide identifies federal statutes and specific

terminology applicable to the provision of special

education services.70

ii. The guide also notes that discipline of students with

disabilities must conform to provisions of the Individuals

with Disabilities Education Act (IDEA) and that the child’s

disability “must be taken into consideration before any

discipline is applied.”71

iii. The guide also note that students who are eligible for

services under IDEA will have an Individualized

Educational Program (IEP) which, among other items,

might identify behavior exhibited by the student as a result

of his or her disability.72

iv. However, other than stating that the SRO should consider

the child’s ability to distinguish right from wrong, the guide

provides no further information about behavioral

interventions that might address the behavior of a student

with disabilities.73

4. There are concerns that SROs are not adequately trained in general or with

regard to disability/special education issues in particular.

a. A study of SROs in the state of Kentucky that was conducted in 2004

found that 58.8% of SROs had not received any academic training on

special education issues. Of those surveyed, 56.5% indicated that

they had not received any in-service training on special education

issues.74

69

School Resource Officer Core Course Standardized Curricula (California Commission on Peace Officers Training

and Standards May 2001) (available at http://lib.post.ca.gov/publications/60700295.pdf). 70

Id. at 22. 71

Id. at 31. 72

Id. at 62. 73

Id. at 62. 74

David C. May, et. al., “An Examination of School Resource Officers’ Attitudes Regarding Behavioral Issues

among Students Receiving Special Education Services,” 15 CURRENT ISSUES IN EDUCATION 6 (2012).

12

b. 2005 federal study of 19 programs found that, in general, “few of the

19 programs train SROs before they go on the job.”75

c. A March 2015 report released by the North Carolina Department of

Public Safety included information from a survey of SROs employed

in North Carolina schools during the 2014-2015 school year. These

SROs identified the need for additional training, particularly in the

area of mental health and student behavior, including the behavior of

students with disabilities.76

i. Multiple survey respondents noted the need for improved

training. Specific suggestions included increased training

about “students with mental health issues;” “kids with

autism,” and “understand[ing] and encounter[ing] student

behaviors (different personalities, health concerns,

disabilities).”

d. In 2013, the COPS Office of the DOJ funded the “Integrated School

Resource Officer Safety Model and Training Curriculum Project,”

which is designed to expand the knowledge base of SROs” and those

who hire and supervise them.77

F. Policies and Procedures That Outline The SRO’s Duties and “Chain of

Command” Within School.

1. The recommended practice for the SRO-school administrator relationship

is to have a written Memorandum of Understanding (MOU) that outlines

the specific roles and responsibilities of the SRO and school

administrators.78

2. Indeed, several state statutes make reference to need for an MOU between

school and law enforcement agency.79

3. Based on available data and studies, it seems that many school districts

with SROs do not have any written materials that describe or define the

SRO’s responsibility at school.80

75

Finn, supra note 38. 76

N.C. Center for Safer Schools, 2015 North Carolina School Resource Officer Census, 2015, (North Carolina

Department of Public Saftey publication 2015) (available at

https://www.ncdps.gov/div/JJ/final%20SRO%20CENSUS%202015%20final.pdf.) 77

20 Years of Community Oriented Policing, supra note 18, at 5. 78

http://www.cops.usdoj.gov/pdf/2015AwardDocs/chp/CHP_MOU_Fact_Sheet.pdf; Testimony of Mo Canady,

supra note 48 (“There should always be a formal memorandum of understanding between the law enforcement

agency and the school district”); Virginia document http://www.dcjs.virginia.gov/forms/cple/sroguide.pdf 79

See, e.g., CONN. GEN. STAT. P.A. 15-168 §1 (effective July 1, 2015); IND. CODE ANN. §0-26-18.2-2 (West 2015);

71 MASS. GEN. LAWS §37P (West 2015); MO. REV. STAT. 162.215 (West 2015); 24 PA. CONS. STAT. §13-1303-A

(West 2015); TENN. CODE ANN. §49-6-4202 (West 2015); TEX. CODE §1701.262 (West 2015); 16 VT. STAT. ANN.

§1167(b) (West 2015).

13

a. A study of Colorado school districts published in 2011 indicated that

forty percent of school districts with an SRO (12 out of 30 school

districts) did not have any written agreement (MOU) or other

document that delineated the role of the SRO.

4. Even when an MOU exists, there is a question whether the document

actually controls the parties’ day-to-day interactions.

a. A survey of sixteen school districts in Massachusetts that was

conducted in 2009 indicated that the MOU is not a document used by

the parties.81

b. In interviews with SROs, the researchers learned that “most SROs

were barely aware that MOUs existed, and rarely referred to them,

much less used them as a guide.”82

The MOUs “appeared to be

mostly pro forma documents that were filed away.”83

G. Some advocacy groups and commentators question whether SROs reduce the

incidence of juvenile crime or whether the presence of an SRO actually leads to

inappropriate criminalization of minor misbehavior.84

1. Statistics from the Department of Justice’s Office of Juvenile Justice and

Delinquency Prevention show an overall decline in the rate of juvenile

arrests from 1994-2012.85

a. The 2012 juvenile arrest rate for all crimes was 38% below the rate

reported in 1980 and 63% below the peak year of 1994.86

b. Juvenile arrests for the crime of simple (not aggravated) assault

reported in 2012 were 28% below the rate for the years from 2003-

2012 and 25% below the rate for the years 2008-2012.87

80

Cray, supra note 29, at 169. 81

Lisa H. Thurau & Johanna Wald, Controlling Partners: When Law Enforcement Meets Discipline In Public

Schools,” 54 N.Y.L. SCH. LAW REV. 977, 991 (2009/2010). 82

Id. 83

Id. 84

See, e.g., “Hard Lessons: School Resource Officer Programs and School-Based Arrests in Three Connecticut

Towns,” (ACLU Publication, November 2008) (available at

https://www.aclu.org/sites/default/files/field_document/hardlessons_november2008.pdf); Education on Lockdown:

The School to Jailhouse Track,” (Advancement Project Publication) (March 2005) (available at

http://b.3cdn.net/advancement/5351180e24cb166d02_mlbrqgxlh.pdf); Education Under Arrest: The Case Against

Police in Schools,” (Justice Policy Institute Publication) (November 2011) (available at

http://www.justicepolicy.org/uploads/justicepolicy/documents/educationunderarrest_fullreport.pdf); Catherine Y.

Kim, Policing School Discipline, 77 BROOKLYN L. REV. 861, 886-87 (2012).

85 U.S. Department of Justice: Office of Juvenile Justice and Delinquency Prevention,

http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05201. 86

Id.

14

c. Juvenile arrests for the crime of disorderly conduct reported in 2012

were 38% below the rate for the years from 2003-2012 and 36%

below the rate for the years 2008-2012.88

2. Students reported decreasing rates of criminal victimization at school.

a. The percentage of students aged 12-18 who reported being the victim

of crime within the past 6 months has fallen steadily between 1995

and 2013. The reported rate in 1995 was 9.5%. In 2013, the reported

rate was 3.0%.89

3. However, some critics argue that the national statistics do not demonstrate

a “clear correlation” between the presence of SROs in schools and

declining rates of juvenile crime.90

4. Indeed, some scholars and commentators have raised concerns that the

presence of an SRO in school tends to “criminalize” adolescent

misbehavior that would have otherwise be handled by school personnel

without involving the juvenile justice system.91

a. A study published in 2013 that used data from the Department of

Education’s School Survey on Crime and Safety made the following

findings:

i. Simple assault without a weapon is the common crime

recorded by schools;92

ii. The presence of an SRO at school is associated with a more

than double the rate of referrals to law enforcement for the

crime of simple assault;93

iii. The results of a regression analysis of the data

demonstrated that schools that added SROs between the

2005-2006 school years and the 2007-2008 school years

87

U.S. Department of Justice: Officer of Juvenile Justice and Delinquency and Prevention, Juvenile Arrests 2012

(2012), http://www.ojjdp.gov/pubs/248513.pdf 88

Id. 89

See Table 228.30 of the Digest of Education Statistics, available at

http://nces.ed.gov/programs/digest/d14/tables/dt14_228.30.asp. 90

Education under Arrest, supra note 84, at 10. 91

Matthew T. Theriot, “School Resource Officers and the Criminalization of Student Behavior,” 37 JOURNAL OF

CRIMINAL JUSTICE 280-87 (2009). 92

See Na, supra note 39, at 635; see also Kerrin C. Wolf, “Booking Students: An Analysis of School Arrests and

Court Outcome,” 9 NORTHWESTERN J.L. & SOC. POL’Y 58, 70 (2013) (a study of juvenile arrests in the State of

Delaware indicated that crimes of disorderly conduct, third-degree assault and offensive touching comprised three-

quarters of all arrests). 93

Id.

15

had a 12.3% higher percentage of reporting non-serious

violent crime to law enforcement than schools that did not

add SROs, although the reporting of crime overall or other

crime types were not affected by the addition of SROs.94

b. A study published in 2009 examined data from comparable middle

and high schools located within one county in the Southeastern

United States, some of which had SROs in schools and other that did

not. The data revealed that:

i. The presence of an SRO in school did not statistically

increase the overall rate of arrests (when controlled for

school-level poverty); and

ii. The presence of an SRO in school led to fewer arrests for

weapons possession and assault charges; but

iii. The presence of an SRO at school significantly increased

the rate of arrests for the crime of disorderly conduct, a

relatively minor criminal charge that has subjective and

situational considerations, unlike a weapons or drug

charge.95

H. There is limited research or data on the interaction between SROs and students

with disabilities.

1. Statistically, students with disabilities are disciplined more often than

general education students, including removal from school by way of

suspension or expulsion.96

a. Data collected by the U.S. Department of Education’s Office of Civil

Rights (OCR) for the 2011-2012 school year indicated that, while

students receiving special education services represent 12% of all

students nationwide, they make up 23% of the nation’s students who

received a school-related arrest.97

b. On March 21, 2014, the OCR released a report summarizing civil

rights data from schools across the country. While students with

94

Id. at 640. 95

See Theriot, supra note 91 at 285. 96

May, supra, note 74, at 4; Russell Skiba, et. al., Are Zero-Tolerance Policies Effective in the Schools? An

Evidentiary Review and Recommendations 6-7 (Report of the American Psychological Association Zero Tolerance

Task Force, August 2006) (available at http://www.apa.org/pubs/info/reports/zero-tolerance-report.pdf) (“Although

there are less data available, students with disabilities, especially those with emotional and behavioral disorders,

appear to be suspended and expelled at rates disproportionate to their representation in the population”). 97

Guiding Principles: A Resource for Improving School Climate and Discipline (U.S. Department of Education

published January 2014) (available at http://www2.ed.gov/policy/gen/guid/school-discipline/guiding-principles.pdf).

16

disabilities represent only 12% of the student population, nearly 60%

of students placed in seclusion and 75% percent of students who are

physically restrained at school are students with disabilities.98

c. Suspension rates are more than twice as high (13%) for students with

disabilities when compared to students without disabilities (6%).99

d. In response to the OCR’s various reports about disproportionate

impact of disciplinary measures on students with disabilities, the

Department of Justice’s COPS program issued a “BOLO” (“Be On

the Lookout”) bulltein indicating that, among other items, SROs need

training on “disability issues.”100

1. There are several reported cases where students with disabilities have been

handcuffed or restrained by SROs, even when no arrest is made.101

a. However, a 2013 study using data collected by the U.S. Department

of Education indicated no disproportionate arrest rate on students

receiving special education services specifically as a result of the

presence of an SRO at school.102

2. A survey of SROs located in Kentucky revealed that many SROs harbor

negative stereotypes of students with disabilities, particularly SROs who

spend more time in law enforcement activities rather than counseling or

education activities.103

a. A majority of survey respondents (55%) agreed that students

receiving special education were “responsible for a disproportionate

amount of problem behaviors at school.”104

b. Nearly the same amount (54.3%) agreed that placing students

receiving special education services in the general education

classroom “is detrimental because of their problem behaviors.”105

98

http://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf 99

Id. 100

BOLO Project Bulletin #4: Potential Effects of the U.S. Departments of Education and Justice Recently Released

School Guidance Package on Law Enforcement (COPS Publication dated July 2014) (available at http://ric-zai-

inc.com/Publications/cops-w0736-pub.pdf). 101

Hoskins v. Cumberland City. Bd. of Ed., 2014 WL 7238621 (M.D. Tenn., December 17, 2014) (denying motions

for summary judgment of several defendants, including an SRO, on the ground that the handcuffing of an eight-

year-old second grader for a period of forty-five minutes may have violated the child’s constitutional rights);

“Deputy handcuffs 8-year-old student and watches as he sobs in agony,” (August 3, 2015)

(http://www.policestateusa.com/2015/covington-third-grader-handcuffed/). 102

See Na, supra note 39, at 641. 103

See May, supra note 74. 104

Id. at 7. 105

Id.

17

i. This figure indicates that SROs do not believe that students

with disabilities belong in the general education classroom.

ii. In the 2011 school year, nearly 95% of students with

disabilities spent some part of their school day in the

general education classroom.106

Over 61% of students with

disabilities spent the vast majority of their time (80% or

more of the school day) in the general education classroom,

while nearly 20% of students with disabilities spent

between 40-79% of their school day in the general

education classroom.107

c. The vast majority of survey respondents (84.8%) agreed that students

receiving special education services “used the special education status

as an excuse for their problem behavior to avoid accountability for

their actions.”108

d. While limited in scope to a single state, these survey findings indicate

that SROs may lack “understanding and knowledge of the unique

characteristics and needs” of students with disabilities who receive

special education.109

III. Background Regarding IDEA and Use of Behavioral Interventions in Schools to Address

Undesired Behavior of Children with Disabilities.

A. A child with a disability is entitled to special education services under the federal

Individuals with Disabilities Education Act (IDEA).110

B. A child is eligible for special education services under IDEA if the child fits into

at least one of thirteen identified disability categories.111

In addition, the child’s

disability must “adversely affect” the child’s educational performance such that

the child needs special education services in order to access the curriculum.112

C. If a child is deemed eligible for special education, the school district will prepare

106

See Table 204.60 of the Digest of Education Statistics, available at

https://nces.ed.gov/programs/digest/d13/tables/dt13_204.60.asp. 107

Id. 108

May, supra note 74, at 7. 109

Id. at 8. 110

20 U.S.C. § 1400 et. seq. (2012). 111

20 U.S.C. § 1401(3)(A) (2012). 112

34 C.F.R. § 300.8 (2007) (defining a “child with a disability”). These disability categories include autism, deaf-

blindness, deafness, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairments, other

health impairment, emotional disturbance, specific learning disability, speech or language impairment, traumatic

brain injury, and visual impairment, including blindness.

18

an individualized educational program (IEP) for the child.

1. The IEP is a written document that contains very detailed provisions about

the child’s current educational performance, projected goals and

objectives for the child’s progress in the coming year, the level and type of

services to be provided, and the educational setting, among other

details.113

2. The IEP is drafted and approved by the child’s IEP team, a group that

includes both educators and the child’s parents.114

3. While the child’s parents do not have a “veto” right in an IEP meeting to

vote against an IEP with which they do not agree, parents do have the

right to withhold consent to the provision of special education services

under an IEP with which they do not agree.115

a. Parents can refuse to consent to the initial provision of special

education services if they do not agree with the contents of a

proposed IEP.116

b. Parents also can revoke their consent to the continued provision of

special education services.117

This revocation of consent can take

place at any time, including the circumstance where the parents

disagree with the contents of a proposed IEP.

c. Parents also can refuse to consent to the provision of a particular

“service or activity” offered by the school district without losing the

benefits of other services or activities offered by the district.118

D. IDEA also sets forth procedures to be followed when a child with a disability

exhibits undesired behavior, including behavior that is physically aggressive

towards others.

1. One provision of IDEA directs a child’s IEP team to “consider the use of

positive behavioral interventions and supports” and other strategies to

address behavior that may impede a child’s learning.119

2. Another provision of IDEA directs the child’s IEP team to consider

behavioral interventions when child’s behavior could subject the child to

113

20 U.S.C. § 1414(d)(1)-(4) (2012); 20 U.S.C § 1414(d)(1)(A)(i)(V)-(VI) (2012). 114

20 U.S.C. § 1414(1)(B) (2012) (describing the members of the IEP team). 115

20 U.S.C. § 1414(a)(1)(D)(ii)(II) (2012). 116

30 C.F.R. §300.300(b) (2007). 117

30 C.F.R. §300.300(b)(4) (2007). 118

30 C.F.R. §300.300(d)(2) (2007). 119

20 U.S.C. § 1414(d)(3)(B)(i) (2012).

19

disciplinary measures, including suspension or expulsion from school.120

In that circumstance, IDEA requires that the child’s IEP team consider

whether to conduct a “functional behavioral assessment” (FBA) and

implement a “behavioral intervention plan” (BIP) to address the undesired

behavior.121

E. Congress first added these behavioral intervention requirements when it amended

IDEA in 1997.122

1. In doing so, Congress incorporated principles from the field of applied

behavior analysis (ABA).123

2. ABA is a science that devoted to understanding and improving human

behavior through rigorous analysis of the conditions under which behavior

occurs and the consequences that result from such behavior.124

Armed

with information about the antecedent conditions under which behavior

occurs, along with a detailed description of the behavior being examined,

a behavior analyst or other professional can proposed changes to either the

antecedents to the behavior or the consequences that flow when behavior

is demonstrated, all with the goal of modifying or changing behavior in a

positive way.125

3. One such behavioral technique is the use of an FBA. An FBA is the

process by which a behavior analyst examines the function of a particular

behavior exhibited by an individual. The FBA defines the behavior,

identifies any antecedent (preexisting) events that give rise to the

behavior, and reviews any consequences that are imposed when the

individual exhibits the behavior.126

An FBA could reveal, for example,

that child with a disability who is presented with an overly complex task

(the antecedent) may engage in undesired behavior (aggression), resulting

in removal from the classroom, a consequence that actually reinforces the

120

20 U.S.C. § 1415(k)(F) (2012). Specifically, if the child will be removed from his/her placement for more

than ten consecutive or cumulative days or if the child will be placed in an Interim Alternative Educational Setting

(IAES), a manifestation determination must occur. The IEP team must determine 1) if the conduct in question was

caused by, or had a direct and substantial relationship to, the child’s disability; or 2) if the conduct in question was

the direct result of district’s failure to implement the IEP. 20 U.S.C. § 1415(k)(E) (2012). Further, any time a student

is placed at an IAES, the child shall receive “receive, as appropriate, a functional behavioral assessment, behavioral

intervention services and modifications, that are designed to address the behavior violation so that it does not recur.”

20 U.S.C. § 1415(k)(D)(ii) (2012). 121

Id. Suspension from school, whether a single suspension or a series of lesser suspension that form a pattern, must

exceed ten days. 34 C.F.R. §300.536 (2007). 122

Individuals With Disabilities Education Act of 1997, Pub. L. No. 105-17, 111 Stat. 37. 123

Scott, supra note 8, at 146-57. 124

JOHN. O. COOPER ET AL., APPLIED BEHAVIOR ANALYSIS 3 (2d ed. 2007). 125

COOPER, supra note 124, at 16-17. 126

Id., at 500; H. Rutherford Turnbull III, et al., IDEA, Positive Behavioral Supports, and School Safety, 30 J.L. &

EDUC. 445, 456 (2001).

20

behavior’s function, namely task avoidance.127

4. The results of an FBA allow the behavior analyst to write a BIP. The BIP

will specify behavioral interventions that may be used to either alter the

antecedent to the behavior (change the task) or the consequences resulting

from the behavior. A BIP might also introduce rewards or reinforcements

when the child exhibits appropriate, non-problematic behavior. The

overall goal of the BIP is to reduce the frequency of undesired behavior

and increase the frequency of appropriate behavior.128

5. When conducting an FBA, it is very important that the behavior be

examined in the environment or context in which it occurs, since

interventions that may be implemented to reduce or modify the behavior

could include changes to the environment or the context (antecedent

conditions) and not simply the consequences that flow from the

behavior.129

F. FBAs and BIPs have been used in clinical settings for decades; however, their use

in school settings was limited before the 1997 amendments to IDEA went into

effect.130

1. Indeed, while Congress explicitly referred to FBAs and BIPs when it

amended IDEA in 1997, the amendments themselves raised several

questions about how best to implement these behavioral techniques in the

school setting.

a. For example, neither the federal statutes nor the implementing

regulations defined an FBA or a BIP or provided any guidance as

their design or implementation in the school setting.131

b. In addition, by incorporating those terms only in provisions that

addressed disciplinary procedures against a student with disabilities

who exhibited undesired behavior – and not in the statutory

provisions that address the IEP team’s responsibility to consider

undesired behavior when drafting a child’s IEP – the 1997

amendments raised the question about when to conduct an FBA.132

i. A “proactive approach” would call for the initiation of the

127

Zirkel, supra note 7, at 178. 128

Id. at 175; Trumbull, supra note 126, at 453-54. 129

Terrance M. Scott, et. al., “Strategies for Carrying Out and Developing Functional Assessment and Behavior

Intervention Planning,” 52 PREVENTING SCHOOL FAILURE 39 (2008). 130

Scott, supra note 8, at 146. In 1999, the U.S. Department of Education issued the implementing regulations for

the 1997 amendments to IDEA. 131

Scott, supra note 129. 132

Maureen A. Conroy, et. al., “Building Competence in FBA. Are we headed in the right direction?” 44

PREVENTING SCHOOL FAILURE 169 (2000).

21

FBA-BIP process “whenever earlier behavioral warning

signs occur,”133

while a narrower approach would await

disciplinary action.

ii. The narrower approach may be the prevailing view in

practice simply because IDEA by its own terms does not

require either an FBA or a BIP unless school personnel are

conducting a manifestation determination review.134

2. Even beyond the legal requirements of IDEA, the relative lack of

experience using FBAs and BIPs in the school setting before the 1997

amendments meant that there was no established protocol or practices for

the use of FBAs in the education setting.

a. Most schools were not prepared to implement the new mandates with

regard to behavioral interventions.135

b. As a result, school districts “implemented a variety of inexact

practices and procedures that [were] loosely labeled as FBA.”136

3. Several articles published in the early 2000s detailed the need to build

competence in educators’ use of FBAs and BIPs to address undesired

behavior.137

G. While the transfer of these behavioral intervention techniques from a clinical

setting to the school environment has somewhat uneven, over the years, the use of

FBAs and BIPs in school settings has steadily increased.138

H. Under IDEA, it is the responsibility of the child’s IEP team, of which the parents

are a part, to develop or modify any BIP for the child that will address undesired

behavior.139

1. Thus, the parents will be part of an IEP team that will determine whether

to implement or modify a BIP for the child.

2. In addition, the parents may withhold consent to the implementation of a

BIP if they do not agree with even one component of its contents.140

In

that circumstance, however, the district may be relieved of its obligation to

133

Id. 134

20 U.S.C. §1415(k)(1)(D)(ii) (2012). 135

Richard Van Acker, et. al., Are we on the right course? Lessons Learned about Current FBA/BIP Practices in

School, JOURNAL OF BEHAVIORAL EDUCATION 37 (2005). 136

See Scott, supra note 129, at 40. 137

See Conroy supra note 131 (2000); Sasso (2001). 138

See Scott, supra note 8, at 146. 139

30 C.F.R. §300.520 (2007). 140

See, e.g., L ex. rel. Mr. F. v. North Haven Bd. of Ed., 624 F. Supp. 2d 163, 181-82 (D. Conn. 2009).

22

implement any BIP.141

I. Indeed, in response to concerns raised about the use of restraint and seclusion142

in schools, several states have enacted statutes or regulations that clarify the

circumstances under which certain behavioral interventions, such as physical

restraint, may be used to address aggressive behavior of students with

disabilities.143

IV. Litigation Involving SROs and Students With Disabilities.

A. Several recent cases highlight the complex issues that arise when a student with

disabilities engages in aggressive behavior at school.144

1. In most cases, the child’s behavior was not a new or unanticipated

behavior. Many times, the district already had developed and implemented

a Behavior Intervention Plan (BIP) to address the behavior.145

2. However, even in situations where young children have been locked in

closets,146

hit with objects,147

restrained in a prone, face-down position to

the ground,148

handcuffed,149

or arrested,150

courts have not always found

legal violations.

3. When parents discover that SROs have physically restrained and

sometimes arrested their children, many parents become angry and sue.151

B. The plaintiffs in these cases assert a number of claims.

141

Id. 142

For a discussion of the use of restraint and seclusion in schools, see Daniel Stewart, How Do States Regulate

Restraint and Seclusion in Public Schools? A Survey of the Strength and Weaknesses in State Laws, 34 HAMLINE L.

REV. 531 (2011). 143

See e.g. WASH. ADMIN. CODE § 392-172A-03130, 392-172A-03135 (2015) (allowing the use of “bodily contact,”

“isolation,” and “physical restraint” as part of a child’s BIP); N.H. REV. STAT. EDUC. § 1113.06, 1114.09 (West

2015) (allowing “non-medical mechanical restraint” and “[p]hysical restraint” to be included in a child’s IEP); N.Y.

Comp. Code R. & Regs. Tit. 8, § 200.22(e)(1) (aversive interventions may be included in child’s IEP). 144

See, e.g., C.B. v. Cty. of Sonora, 769 F.3d 1005; Thomas v. Barze, 57 F. Supp. 3d 1040; E.C. v. Cty. of Suffolk,

882 F. Supp. 2d 323. 145

J.H. v. Nation, 61 F. Supp. 3d 1176. 146

See, e.g., Thomas v. City of New Orleans, 883 F. Supp. 2d 669 (E.D. La. 2012). 147

See, e.g., Id.; Avery v. City of Hoover, 2015 U.S. Dist. LEXIS 93085 (N.D. Ala., Jul. 17, 2015). 148

See, e.g., Thomas v. City of New Orleans, 883 F. Supp. 2d 669. 149

See, e.g., Avery, 2015 U.S. Dist. LEXIS 93085; C.B. v. Cty. of Sonora, 769 F.3d 1005; J.H. v. Bernalillo Cnty.,

2014 WL 3420137 at *9. 150

See, e.g., K.J. v. Greater Egg Harbor Reg’l High Sch. Dist. Bd. of Educ., 2015 WL 5039460 at *2 (D. N.J., Aug.

26, 2015); J.H. v. Nation, 2014 WL 3420137 at *9; Thomas v. Barze, 57 F. Supp. 3d 1040. 151

See, e.g., Thomas v. Barze, 57 F. Supp. 3d 1040; E.C. v. Cty. of Suffolk, 882 F. Supp. 2d 323; J.H. v. Nation, 61

F. Supp. 3d 1176; J.H. v. Bernalillo Cnty., 2014 WL 3421037 at *1.

23

1. Some allege that the SRO violated the child’s constitutional rights by

applying force or arresting the child.152

a. For example, a nineteen-year-old student with disabilities suffered

injuries and lost consciousness as a result of being placed in a choke

hold by a SRO.153

The student claimed excessive force, unreasonable

seizure, and false arrest in violation of the Fourth Amendment.154

2. Other plaintiffs allege that the defendants violated federal statutes such as

the Americans with Disabilities Act or the Rehabilitation Act of 1973.155

Many are unsuccessful because they must exhaust administrative remedies

under IDEA first.156

a. To illustrate, a court dismissed a plaintiff’s claim that a district had

failed to accommodate students with disabilities in violation of ADA

because the plaintiff had “not alleged that she initiated, much less

exhausted, administrative proceedings to remedy the ADA violations that

she alleges.”157

3. Finally, parents have also alleged violations of state law such as negligent

intentional and negligent infliction of emotional distress.158

a. In a recent case, the plaintiffs allege that a SRO violated a state

regulation prohibiting use of mechanical restraints (handcuffs).159

C. Only a small body of litigation involving SROs and students with disabilities

exists. As of September 2015, only four published cases160

and one pending

152

See, e.g., Thomas v. Barze, 57 F. Supp. 3d 1040; E.C. v. Cty. of Suffolk, 882 F. Supp. 2d 323; J.H. v. Nation, 61

F. Supp. 3d 1176. 153

Thomas v. Barze, 57 F. Supp. 3d 1040. 154

Id. at *1056. 155

E.C. v. Cty. of Suffolk, 882 F. Supp. 2d at 340–43. 156

See, e.g., Avery v. City of Hoover, 2015 U.S. Dist. LEXIS 93085; E.C. v. Cty. of Suffolk, 882 F. Supp. 2d 323,

329. 157

Avery v. City of Hoover, 2015 U.S. Dist. LEXIS 93085 at *24. 158

Id.; E.C. v. Cty. of Suffolk, 882 F. Supp. 2d 323; Thomas v. Barze, 57 F. Supp. 3d 1040. 159

Plaintiffs Complaint available at https://www.aclu.org/legal-document/sr-v-kcsd-complaint paragraph 8. 160

Avery v. City of Hoover, 2015 U.S. Dist. LEXIS 93085; E.C. v. Cty. of Suffolk, 882 F. Supp. 2d 323; J.H. v.

Bernalillo Cnty., 2014 U.S. Lexis 94132 at*9; Thomas v. Barze, 57 F. Supp. 3d 1040. Some publicized cases exist

where there is no court decision. For example, a parent filed a case against a district and SRO when her daughter

who has disabilities was arrested after her behavior that she exhibited after coming out of a sleep-induced seizure

was misinterpreted as aggressive http://legalclips.nsba.org/2013/09/26/suit-filed-against-west-virginia-school-

district-and-sheriffs-office-for-arrest-of-disabled-student/. According to the docket on Bloomberg Law, this case

was settled.

24

case161

exists naming SROs as defendants. There are additional cases that include

(1) SROs, but they are not named as defendants;162

or (2) police officers that are

not SROs.163

1. In the first two cases involving SROs and students with disabilities, the

districts had implemented BIPs to address the students’ behavioral issues.

Nonetheless, the parents did not prevail in their claims that the SROs were

not properly trained about BIPs and/or students with disabilities.

a. In E.C. v. City of Suffolk, an eleven year-old boy with a BIP was

diagnosed with cognitive and developmental delays, a speech and

language impairment, and a condition requiring a feeding tube.164

i. During P.E. class, the boy, EC, began throwing rocks;

witnesses testified that his behavior escalated such that he

punched, kicked, screamed, head butted, and attempted to

run away.165

Multiple employees attempted to calm and

restrain EC including two security guards that held him by

his wrists for approximately thirty minutes.166

ii. Eventually, a SRO arrived and handcuffed the boy.167

When EC’s mom came, she asked the SRO to release the

handcuffs which he did.168

EC’s mom spoke to her son in

Spanish and was able to calm EC down.

iii. The plaintiffs brought multiple claims against the school

district, its employees, the county, and the SRO.

b. The plaintiffs alleged that the defendants deprived EC of his

constitutional rights by improperly seizing him and using excessive

force.

i. Yet, a New York federal district court granted defendants’

motion for summary judgment reasoning that the school

161

S.R. v. Kenton Cnty. Plaintiffs Complaint available at https://www.aclu.org/legal-document/sr-v-kcsd-complaint 162

Thomas v. City of New Orleans, 883 F. Supp. 2d 669; K.J. v. Greater Egg Harbor Reg’l High Sch. Dist. Bd. of

Educ., 2015 WL 5039460 *1, 2 (D. N.J. Aug. 26, 2015). 163

C.B. v. Cty. of Sonora, 769 F.3d 1005 (9th Cir. 2014); Thomas, 883 F.Supp. 2d 669; K.J. v. Greater Egg Harbor

Reg’l High Sch. Dist. Bd. of Educ., 2015 WL 5039460; Valentino v. Sch. Dist. of Philadelphia, 2003 WL 177210

(E.D. Pa., Jan. 23, 2003). 164

E.C. v. Cty. of Suffolk, 882 F. Supp. 2d 329, 330. 165

Id. at 332. 166

Id. at 333. 167

Id. at 334–35. 168

Id. at 337.

25

employees and the SRO’s actions were justified to protect

EC from harming others and himself.169

ii. The court briefly discussed EC’s BIP by stating that the

purpose of a BIP is to “change, improve or reduce the

frequency of and to provide positive reinforcement….a BIP

does not address whether a student should be restrained in

response to various behaviors…When necessary, however,

a student might be restrained to keep the student safe.”170

c. The court was also not convinced that the defendant district and

county negligently hired, supervised and trained its employees.

i. The plaintiffs argued that the district consciously chose to

not train employees to work with students with disabilities

despite being fully aware the employees would work with

these students on a daily basis.

ii. The court did not find that the district had failed to

adequately train employees explaining that the district did

not know that staff would confront a situation like the one

that arose and that the school employees handled it

properly.171

d. Similarly, the court did not assign fault to the county’s training of the

SRO.

i. Although the plaintiffs highlighted the SRO’s testimony, in

which he admitted that he had not received any training

pertinent to students with disabilities,172

the court reasoned

that since the SRO’s conduct was reasonable, the county

defendants’ motion for summary judgment should also be

granted.

2. The second case, J.H. ex rel. J.P. v. Bernalillo County, also involved an

eleven-year-old student with a disability who was acting aggressively

toward students and staff.173

a. The SRO handcuffed and arrested the student; however, the criminal

charge of battery was later dismissed by the juvenile court because

the child was deemed incompetent to stand trial.174

169

Id. at 334. 170

Id. at 330. 171

Id. at 352–53. 172

Id. at 340. 173

J.H., 2014 U.S. Lexis 94132 at *9. 174

Id. at *107.

26

b. The student, JP, had a BIP specifically addressing situations where

she physically harmed others. The plan stated that “[t]he crisis team

will be called. If necessary, appropriate physical management may be

employed by trained personnel to ensure the safety of J[.P.] and/or other

persons involved in the crisis situation. J[.P.]'s Mother will be called.

Administration will determine if the need for APS Police or other law

enforcement is necessary.”175

c. A New Mexico federal district court found no Fourth Amendment

violation because the SRO had probable cause to arrest J.P. and was

justified in handcuffing her based on her recent attack of a student

and school employee.176

d. It is clear from the court’s opinion that the issues surrounding the

implementation of the BIP had arisen in the past.

i. Specifically, the court explained, “[the SRO] left the school

immediately to avoid interacting with J.P.'s mother as his past

interaction had been unpleasant due to her mistaken belief that

a BIP takes precedence over state law when a student or

teacher is assaulted or battered."177

ii. The court clarified that the SRO was accurate that “the BIP

does not change the Fourth Amendment standards that govern

[the SRO’s] conduct in arresting J.P. The IDEA, from which

the BIP arises, governs the conduct of state educational

officials…[and not SROs].178

e. Although the SRO did not have access to JP’s BIP, the court

determined that even if the SRO had viewed the BIP, it would have

reinforced his decision to arrest the student because the BIP

documented that JP had the ability to purposely act.179

f. Moreover, the court did not find evidence that the training which the

county defendant provided the SRO was deliberately indifferent to or

caused the alleged violation of JP's rights under the Americans with

Disabilities Act (ADA).180

The SRO was trained about individuals with

physical or mental impairments and trained in issues facing SROs.181

175

Id. at *16. 176

Id. at *18–19. 177

Id. at *84. 178

Id. at *53–54, n.34. 179

Id. at *345. 180

Id. at *156. 181

Id. at *157.

27

D. Unlike these first two cases, the plaintiffs fared better in the third SRO case. In

Avery v. City of Hoover, a court denied the defendants’ motion to dismiss the

complaint after a high school student claimed that a SRO used excessive force

and was improper trained.

1. The student who was diagnosed with dyslexia, asthma, Type II Diabetes,

and sleep apnea had an IEP that called for instructional support, including

books on tape and access to a computer.182

a. Avery was in in-school suspension (ISS) and was told to read a book,

but neither a book on tape nor access to a computer was provided to

her. Because Avery fell asleep while reading the book, the ISS

supervisor first struck Avery’s cubicle with his hand, thereby causing

the cubicle to hit Avery’s head.183

When she fell asleep again, the ISS

supervisor screamed and slammed a book on Avery’s desk. The book

bounced and hit Avery in the chest.184

After becoming hysterical and

being told to leave the room, Avery called her mother as she walked

toward the principal’s office. An SRO saw Avery in the hallway and

approached her from behind by slapping her backpack. Avery

responded, “leave me alone” which resulted in the SRO shoving her

“face first into a file cabinet and handcuff[ing] her.”185

On the way to

the police station, Avery vomited in the police car and sustained

injuries to her arm and wrist.186

b. Avery filed a lawsuit against the SRO and other defendants alleging a

variety of claims including a Section 1983 claim for excessive force

in violation of the Fourth Amendment.

c. An Alabama federal district court denied the SRO’s motion to dismiss

because “no reasonable officer in [the SRO’s] shoes would have

thought the level of force [the SRO] used was necessary to subdue an

upset high school student walking down a school hallway and talking

on the phone, even if the student’s conduct was “disorderly”187

d. The court also held that Avery had alleged sufficient facts to support

her claim that the City failed to adequately train SROs.188

Specifically, Avery argued that teachers are trained on students’ IEPs,

182

Avery v. City of Hoover, 2015 U.S. Dist. LEXIS 93085, at *4–6. 183

Id. at *7. 184

Id. 185

Id. 186

Id. at *8. 187

Id. at *14. 188

Id. at *16.

28

but the City did not train SROs on IEPs.189

The City, nonetheless,

expects SROs to intervene when behavior issues arise with students

with disabilities.190

Therefore, on this claim, the City’s motion for

summary judgment was denied.

E. Finally, litigation is pending in S.R. v. Kenton Co. Sherriff’s Office.191

1. This 2015 case garnered national attention after videotapes surfaced that

captured a SRO placing two elementary students with disabilities in

handcuffs. Because the students’ wrists were too small for the handcuffs,

the SRO placed the handcuffs upon their biceps and forced their hands

behind their backs.

2. The first student, an eight-year-old boy diagnosed with PTSD and ADHD

is observed complaining in the video, “Ow, that hurts.”192

3. The Plaintiffs Complaint alleges that second student, a nine-year-old girl

diagnosed with ADHD, was locked in the SRO’s car for an hour while

they waited for her mother to return home.193

In another instance, she was

handcuffed for twenty minutes and experienced a “severe mental health

crisis” where she was transported by ambulance for a psychiatric

evaluation and treatment.194

Less than a month later, the SRO handcuffed

her while she knelt on the floor and remained, struggling, for thirty

minutes until her mother arrived.195

4. The Plaintiffs Complaint alleges unreasonable seizure and excessive force

in violation of the Fourth and Fourteenth Amendments and Disability-

based Discrimination and Failure to Accommodate in violation of the

Americans with Disabilities Act.

IV. Recommendations.

A. SROs must receive training about behavior of children with disabilities and the

use of BIPs to modify problematic behavior.

189

Id. at *16. (The City did “not familiarize school resource officers with students’ IEPs. Consequently, those

officers are unfamiliar with the needs of students who have IEPs.”) 190

Id. at *16. 191

Plaintiffs Complaint available at https://www.aclu.org/legal-document/sr-v-kcsd-complaint 192

Id. at Paragraph 32. 193

Id. at Paragraph 42. 194

Id. at Paragraphs 44–45. 195

Id. at Paragraph 50.

29

1. This training need not be particularly in-depth. Given funding constraints

and the availability of other school personnel with expertise in behavioral

interventions, it is not necessary that SROs also be experts in the field.196

2. Essentially SROs need to know that experts have examined the behavior

(presumably conducted an FBA) and have devised a plan to modify or

reduce the behavior – the BIP.

3. SROs should understand that the interventions used in a BIP may be a

little counterintuitive to how the SRO might handle the situation when

faced with a person engaging in the particular behavior.

4. SROs need not take the time to read or review BIPs for particular students

or otherwise to learn how to implement the BIP themselves.

B. Privacy and Disclosure Issues.

1. The SRO should know that the child has a BIP.

a. To be safe, parents should be asked to sign a FERPA document that

allows school to disclose information to the SRO. Essentially school

would want to be able to tell the SRO that a particular child has a BIP

and, perhaps, discuss its contents.

2. In the case of a child with aggressive behavior, the BIP also should inform

the parents that it is possible that the SRO may be called to assist if the

child engages in the behavior.

3. Should the parents be informed (in the BIP) that the child could be subject

to arrest if the child engages in the behavior?

a. That’s a difficult question, because school administrators want to be

able to implement the BIP and need parents’ consent. Administrators

wouldn’t want parents to refuse to sign a document that

acknowledges the possibility that their child might be arrested.

b. At a minimum, schools may consider the development of procedures

to ensure parents are given immediate notice any time an SRO is

requested to assist with a behavioral issue involving a student with a

disability. In some instances, an effective de-escalation strategy is the

calming presence of a caregiver.197

196

Education Under Arrest, supra note 84 at 6-7. 197

See, e.g., E.C. v. Cty. of Suffolk, 882 F. Supp. 2d at 337(discussing a situation involving an SRO who handcuffed

child with disabilities because the child was aggressive; however, after mother arrived, child was calmed).

30

C. Schools should have a protocol/action plan for the intervention of an SRO when a

child with disabilities whose behavior is subject to a BIP engages in aggressive,

potentially criminal conduct.

1. SROs have a great deal of discretion in determining whether to arrest a

student at school, particularly for behavior that would fall into the simple

assault or disorderly conduct category.198

a. A study of SROs in public schools in the state of Delaware for the

2010-2011 school year confirmed that SROs often do not arrest a

student even when confronted with strong evidence that the student

has committed a crime.199

b. Thus, an SRO can exercise discretion when confronted with a

situation where a student with disabilities has committed a crime.

2. The school should designate a school employee with experience in special

education and knowledge of the student as the person who directs others

whenever a situation unfolds.

a. That chain of command should be in the MOU so that it is clear to all

parties who will take the lead in situations where a student with

disabilities exhibits behavior that is the subject of a BIP.

b. It is appropriate for the SRO to take direction from a school

administrator in a particular situation. SROs already seek the input of

administrators and teachers in certain situations, including guidance

about whether to make an arrest.200

c. The experience school employee has superior knowledge about the

student in question, the length of time that the BIP has been in place,

the student’s pattern of displaying behavior etc.

3. The BIP should be implemented to the greatest extent possible.

4. School personnel should consider the following factors if they determine

to allow the child to be arrested ----

a. Has the BIP proven to be ineffective to address the behavior in the

past? In other words, does the BIP need revision?

198

Wolf, supra note 31, at 146. 199

Id. 200

Wolf, supra note 31, at 147.

31

b. Will the child comprehend the consequences of being arrested? Is

there a point in arresting a child who is unaware of the consequences

of being arrested?

c. The exhibited behavior, including its seriousness and the extent of

any injury to anyone.