In a case handled by Thrun Law Firm, the State Tenure Commission recently upheld a tenured teacher’s discharge for misconduct and insubordination arising from the violation of Michigan’s seclusion and restraint laws. Nichols v Bay City Pub Schs, STC 19-7 (2019).
Kendra Nichols, an elementary special education teacher, worked in a classroom for students with emotional impairments. Nichols’s discharge resulted from two separate incidents involving two different students. While attempting to place a student in a seclusion room, Nichols put her foot on the student’s buttocks and pushed the student into the room. The student remained in the seclusion room for 126 consecutive minutes.
Two days later, Nichols engaged in a verbal and physical altercation with another student. Nichols was on top of the student and pushed the student’s head into the floor three times. Nichols then pulled the student by the wrists to the seclusion room, with his legs, buttocks, and back dragging on the floor behind him. The student was left in the seclusion room without intervention for 53 consecutive minutes.
When an educational assistant reported Nichols’s actions to district administrators, the district initiated tenure charges against Nichols alleging that her behavior during both incidents violated state law and the district’s seclusion and restraint policy.
Seclusion and Restraint Law
Michigan law prohibits the use of seclusion and restraint except in emergency situations that require immediate intervention. An “emergency situation” occurs when a student’s behavior poses an imminent risk to the safety of the student or others. Revised School Code Section 1307c further prohibits the use of emergency seclusion for a period of time that is “any longer than necessary” to allow the student to regain control of his or her behavior. If seclusion lasts longer than 15 minutes for elementary students, there must be “[a]dditional support, which may include a change of staff, or introducing a nurse, specialist, or additional key identified personnel.”
Tenure Commission Holding
The Tenure Commission found that Nichols’s conduct constituted unlawful corporal punishment, assault, battery, and child abuse. The Tenure Commission also found that Nichols violated the district’s policies including those on seclusion and restraint and corporal punishment. The Tenure Commission therefore held that the district’s decision to terminate Nichols employment was not arbitrary and capricious.
Adherence to Strict Reliance
Nichols argued that the students’ behavior in each incident presented a danger to themselves and others and that strict compliance with the emergency seclusion and restraint laws was not always possible. The Tenure Commission noted that “even if strict adherence to seclusion and restraint requirements is not always possible, [Nichols’s] behavior on December 10 and December 12 was far outside any reasonable understanding of proper conduct.”
Nichols also took exception to the district’s policies prohibiting corporal punishment and outlining the emergency seclusion and restraint requirements, arguing that the policies were overbroad and vague. The Tenure Commission rejected that argument finding “any reasonable person would understand that [Nichols’s] conduct . . . failed to satisfy the requirements of the cited policies and the code of ethics.”
Nichols argued that the Tenure Commission must take into account the “realities of the classroom” to understand her conduct. The Tenure Commission also rejected this argument finding that the district “was not arbitrary or capricious in determining that the challenges posed in classrooms for students with emotional impairments did not justify or excuse [Nichols’s] conduct.”
School officials should ensure that key identified personnel are exercising caution when engaging in emergency seclusion and restraint and are abiding by federal and state law, as well as district policies, including but not limited to properly documenting seclusion and restraint use and obtaining additional support when required. As a reminder, all mandatory reporters must immediately report suspected child abuse or neglect to Child Protective Services and follow up with a written report within the ensuing 72 hours.