The Questionable Constitutionality of Mechanical Restraints in the Classroom: A Critique of the Tenth Circuit's Decision in Ebonie S. V. Pueblo School District No. 60

I. Introduction 194II. Background 196A. The Individuals With Disabilities Education Act 196B. A Free Appropriate Public Education 198C. Case Law Interpreting the Use of Restraints 198D. Facts and Procedural History of Ebonie S. v. Pueblo School District No. 60 200III. Analysis 202A. The Tenth Circuit Improperly Granted Summary Judgment to the School Because Mechanical Restraints Are Unreasonable Seizures and Thus Violate the FourthAmendment 2021. The Mechanical Restraints Were Unreasonable Because They Were Not Justified at the Inception 2022. The Mechanical Restraints Were Unreasonably Related in Scope to the Circumstances That Justified the Interference in the First Place 205B. The Tenth Circuit Improperly Dismissed the Plaintiffs Fourteenth Amendment Claim Because the Teachers Exceeded the De Minimis Level of Imposition By Disciplining the Student in a Way that Caused Appreciable Physical Pain 207C. The School Deprived Ebonie of a Free Appropriate Public Education Because Ebonie Did Not Receive a Specialized Education that Addressed Her Needs 211IV. Policy Recommendation 214V. Conclusion 216I. IntroductionThe use of mechanical restraints on students with disabilities in public schools is an emerging education law issue of national significance.1 Following a 2009 study by the Government Accountability Office (GAO) that documented numerous accounts of abuse and death, the Secretary of Education called on states to review their current policies on the use of restraints and seclusion.2 However, congressional efforts to address restraints have not been successful; for example, the Keeping Students Safe Act proposed in the House of Representatives failed to gain sufficient support to pass.3 In 2011, Senator Tom Harkin introduced a new version of the bill in the Senate; however, he is unsure if the modified version will generate adequate approval from Congress.Although federal law does not specifically address restraints in the classroom context, the Individuals With Disabilities Education Act (IDEA) entitles all students with disabilities to a "free appropriate public education" (FAPE).5 Nevertheless, federal courts have maintained a passive role in enforcing this requirement, as they are reluctant to interfere with local education policy.6The Tenth Circuit demonstrated this reluctance in its decision in Ebonie S. v. Pueblo School District No. 60, holding that the school's use of a wraparound desk with a mechanical restraint did not violate the student's Fourth or Fourteenth Amendment rights.7 Additionally, the court refused to address the validity of the practice under the Americans with Disabilities Act (ADA) or IDEA.8This Comment argues that the Tenth Circuit improperly dismissed the student's claims because the use of a desk with a mechanical restraint violated the student's rights.9 Part II of this Comment provides a brief overview of IDEA.10 Part II also examines the special education jurisprudence on the use of restraints in public schools and explains the facts and procedural history of Ebonie S. v. Pueblo School District No. 60.11 Part III argues that the school's use of a wrap-around desk was an unreasonable seizure that deprived the student of due process and of a free and appropriate public education.12Part IV recommends that legislators address the issue by requiring schools to work closely with parents of students with disabilities to ensure that these students are not deprived of their constitutional rights. …