Sean McCarthy can’t speak, so when the autistic teen started acting out violently at home, his parents suspected his behavior might be linked to trouble at school.
When the family discovered what was happening inside Sean’s special education classroom in the Scottsdale Unified School District, they hired attorneys.
In newly filed state and federal lawsuits, the McCarthys allege untrained school staff repeatedly restrained their son - physically grabbed and held him - without informing the family as required by a 2015 law.
The lawsuits also claim district administrators failed to turn over key records and school employees took steps to cover up their actions.
After one documented incident where an aide pinned the teen against a wall during a restraint, Sean’s case manager at Desert Mountain High School emailed a teacher about her written report: “I just need the parts that say he was up against the wall taken out,” the case manager wrote.
“For two years, they got away with brutalizing our child,” said Mary McCarthy in an interview. “Imagine finding out that for two years you took your child somewhere, were friendly with people in front of him, and these people were hurting him.”
The family’s federal lawsuit, which was filed this month, claims the restraints were unlawful and amounted to assaults. The lawsuit seeks punitive damages.
Scottsdale Unified declined to comment on the case because it involves pending litigation, but in court documents, the district denied the family’s allegations and maintained the restraints were legal. The district said the restraints were used to protect students or staff from Sean “biting, hitting, kicking, flailing and punching.”
However, without admitting fault, the district agreed last year to provide training to special education staff at Desert Mountain on the “proper use of restraint and seclusion” to settle the family’s complaints to the U.S. Department of Education.
Restraint cases in Maricopa County up 15% after 2015 law, CBS 5 analysis shows
In 2015, SB 1459 established Arizona’s first set of ground rules on physical restraint and seclusion. Seclusion is the practice of confining an unruly child in a room alone, which critics describe as placing a student in a padded jail cell.
The law allows school employees to restrain or seclude a child if the student’s “behavior presents an imminent danger of bodily harm to [themselves] or others.” The school must notify parents on the same day, “unless circumstances prevent same-day notification,” the law states. Otherwise, parents must be notified within 24 hours.
Supporters of SB 1459 said it would restrict the use of restraint and seclusion in Arizona schools, but new federal data analyzed by CBS 5 Investigates shows it may have had the opposite effect.
Throughout the 58 public school districts in Maricopa County, cases of restraint jumped 15 percent in the school year immediately following the law’s implementation, according to district-level data contained in biennial surveys by the U.S. Department of Education.
According to the two most recently published surveys, there were 2,046 documented incidents of restraint in Maricopa County public schools in the 2015-16 school year compared to 1,769 incidents in the 2013-14 school year.
The 2015-16 survey was released last month. It shows approximately 880 students experienced at least one restraint that year in the schools we analyzed.
The number of cases of seclusion jumped 22 percent in the latest survey, from 899 instances in 2013-14 to 1,153 in 2015-16. Approximately 351 students were secluded in 2015-16. Student counts are an approximation because districts are allowed to round their figures in the survey for privacy reasons.
In cases of both restraint and seclusion, 90 percent of the incidents involved students with disabilities.
Despite having more than 23,600 students, including more than 2,300 students who receive special education services, Scottsdale Unified reported zero restraints and seclusions in both the ’13-'14 and ’15-'16 survey years.
The McCarthys say they have documents suggesting Sean was restrained in the 2015-16 school year. When asked about the apparent incongruity last week, SUSD spokeswoman Erin Helm said she would research the topic.
UPDATE 5/23: One week after publication of this report, the district acknowledged it had failed to properly report instances of restraint and seclusion to the U.S. Department of Education.
"Although staff did document restraints and seclusions during the 2015-2016 school year, SUSD has discovered the reports were not entered into a software system connected with OCR reporting. That practice has since been fixed, so that any OCR reports will match District records moving forward," Helm said.
For families of non-verbal students like the McCarthys, the idea of underreporting restraint or seclusion data is particularly frustrating.
“In Sean's case, he can't talk,” said Mary McCarthy. “We have no other way of knowing what's happening to him but to trust the people he's with.”
The family and their attorneys began filing records requests in January 2017. The family's state lawsuit lays out in detail their continued efforts to try to obtain records in February, June, July and August of that year.
The lawsuit, which alleges Scottsdale Unified violated state public records law, says school administrators still haven't fully responded to their requests.
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