10.6 Student Rights: Consent, Confidentiality, Restraint & Seclusion, and Discipline

Why Student Rights Are Tested

The ETS outline lists the rights of students, giving examples such as informed consent, confidentiality, least restrictive environment, manifestation determination, and seclusion and restraint. These rights appear in many scenario questions, often as the reason an otherwise efficient answer is wrong. Sections 10.1–10.3 cover IDEA, Section 504, and FERPA in detail; this section organizes the student-rights questions that cut across them.

Consent Under IDEA (34 CFR § 300.300)

Consent is not required to review existing data as part of an evaluation or reevaluation, or to give a test or evaluation that is given to all children unless consent is required of all parents (34 CFR § 300.300(d)(1)).

Minors' Consent and Assent

Ethically, school psychologists seek the assent of minors to services (NASP Standard I.1.4). Some states let minors of a certain age consent to certain mental health services without parental consent; NASP Standard I.1.2b recognizes services to mature minors where state law and district policy allow. A minor who self-refers may be seen for one or several meetings to assess need and safety before parental consent is required.

Confidentiality and Records

• FERPA gives parents (and eligible students) rights to inspect records, request amendments, and consent to disclosures, with listed exceptions (Section 10.3).
• IDEA's confidentiality provisions (34 CFR §§ 300.610–300.626) add requirements for special education records: a record of who has accessed the records (other than parents and authorized employees), a designated official responsible for confidentiality, training of staff, and informing parents when information is no longer needed so it can be destroyed at their request (a permanent record of name, address, phone, grades, attendance, classes, grade level, and year completed may be kept).
• Privileged communication is a legal protection, defined by state law, that prevents disclosure of confidential communications in legal proceedings; the privilege belongs to the client and applies to school psychologists only where state law extends it.
• Limits of confidentiality (danger to self or others, suspected abuse, court order) are explained at the outset (NASP Standard I.2.2; Section 10.5).

Least Restrictive Environment as a Right

Students with disabilities have the right to be educated with nondisabled peers to the maximum extent appropriate (34 CFR § 300.114). Placement rules include:

• Placement is decided by a group that includes the parents and is based on the IEP, reviewed at least annually (§ 300.116).
• Placement is as close as possible to the child's home, and the child attends the school he or she would attend if nondisabled unless the IEP requires another arrangement.
• A child is not removed from age-appropriate regular classes solely because of needed modifications in the general education curriculum.
• Children participate with nondisabled peers in nonacademic and extracurricular activities (meals, recess, clubs) to the maximum extent appropriate (§ 300.117).

Discipline and Due Process

All Students: Goss v. Lopez (1975)

The Supreme Court held that public school students have a property interest in education protected by the Due Process Clause. For a suspension of 10 days or less, the student must receive oral or written notice of the charges, an explanation of the evidence if the student denies them, and an opportunity to present his or her side. Longer suspensions and expulsions call for more formal procedures. A student whose presence poses a continuing danger may be removed immediately, with notice and a hearing as soon as practicable.

Students With Disabilities

IDEA adds the 10-day change-of-placement rule, manifestation determination, and the 45-school-day special circumstances (Section 10.2). Section 504 also requires a manifestation-type determination before a disciplinary change of placement.

Children Not Yet Found Eligible (34 CFR § 300.534)

A child who has not been found eligible may still assert IDEA's discipline protections if the district had a basis of knowledge that the child might have a disability before the behavior occurred. A basis of knowledge exists if:

1. The parent expressed concern in writing to supervisory or administrative personnel or a teacher that the child needs special education;
2. The parent requested an evaluation; or
3. The teacher or other personnel expressed specific concerns about a pattern of behavior directly to the director of special education or other supervisory personnel.

There is no basis of knowledge if the parent refused an evaluation or refused services, or if the child was evaluated and found not eligible. If a parent requests an evaluation during a disciplinary removal, the evaluation must be expedited.

Other Constitutional Rights at School

Restraint and Seclusion

Definitions (from federal civil rights data collection guidance)

• Physical restraint: a personal restriction that immobilizes or reduces a student's ability to move the torso, arms, legs, or head freely. Brief holding to calm or comfort, or briefly guiding a student, is not restraint.
• Mechanical restraint: a device or equipment used to restrict movement (excluding devices prescribed for medical or therapeutic purposes, such as orthotic supports or seat belts used as designed).
• Seclusion: the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. A timeout in which a student is not physically prevented from leaving is not seclusion.

Principles

There is no comprehensive federal statute on restraint and seclusion in schools; state laws govern, and they vary. National guidance is consistent (U.S. Department of Education Restraint and Seclusion: Resource Document, 2012; NASP's position statement):

• Use restraint or seclusion only when behavior poses imminent danger of serious physical harm to the student or others and other interventions are ineffective; stop as soon as the danger passes.
• Never use them as punishment, discipline, coercion, retaliation, or for convenience.
• Never use restraint that restricts breathing. Mechanical restraints and drugs used to restrict movement should not be used, except as prescribed by a licensed provider for their intended purpose.
• Train staff in prevention and de-escalation; document every use; notify parents promptly; debrief; and review the student's FBA and BIP after repeated use.
• Restraint and seclusion are not behavioral interventions and cannot substitute for a function-based plan (Section 5.2).

Disproportionate Use

In the Office for Civil Rights' 2020–21 Civil Rights Data Collection, students served under IDEA were 14% of enrollment but 81% of students subjected to physical restraint and 75% of students subjected to seclusion. The 2017–18 collection showed a similar pattern. OCR has also warned that repeated or inappropriate use of restraint or seclusion can deny FAPE or amount to disability discrimination.

The School Psychologist's Role

• Help design prevention: function-based BIPs, crisis plans focused on de-escalation, and staff training.
• Review restraint and seclusion data for patterns and disproportionality.
• Advocate for policies consistent with the national principles and NASP's position.
• Ensure that students who experience restraint are supported afterward, recognizing that restraint can be traumatic (Section 6.5).